The Affordable Care Act and a tale of two Constitutions

Today, a widening rift in constitutional law spans not just a living Constitution and originalism, or judicial activism and judicial restraint. Both sides of the debate often dally in either camp in different cases. Instead, in contemporary scholarship, viewed from different angles, our Constitution protects two unique visions of freedom, which I refer to as the “libertarian” Constitution and the “progressive” Constitution.


The “libertarian” Constitution is perhaps the version we are more familiar with, as those on the right have championed this approach for decades. This philosophy views the Constitution ratified in 1789, as reflecting the view that the “government is best which governs least.”

Federalism, defined broadly as the separate spheres of authority between the federal and state governments, combined with the doctrine of enumerated powers, establishes an order that limits what the federal government can do, and provides the right level of structure to permit the people to flourish. The rights-granting provisions of the Bill of Rights, and the 14th Amendment, should be viewed with an eye towards enabling the individual over protecting the collective.

But there is a different version of the Constitution that is gaining cachet in recent years. This is the “progressive” Constitution.

Departing from previous attempts on the left to ground liberal views in a “living” Constitution, or mere judicial preference, the modern movement locates progressive ideals in the text and history of our Constitution.

Rather than viewing our charter as one of limited powers, these groups instead view the ratification of our Constitution as a recognition of the failures of the weak, feckless Articles of Confederation, and an affirmation of the need for a strong central government to protect the people. Instead of viewing the law as strictures to keep government away from people, this philosophy cherishes the role of government in supporting the people, and giving them the means they need to flourish.

Both views of the Constitution aim to promote liberty, but in diametrically opposite ways.

The “libertarian” Constitution endorses what can be called negative liberty. This notion embodies the view that limiting how governments can interfere with individuals will allow people to choose for themselves how to behave, and to pursue happiness in their own way.

The “progressive” Constitution, in contrast, focuses on what can be called positive liberty. Positive liberty views government as an enabler, not an obstacle, of freedom. Under this approach, the state is charged with ensuring that people have certain social securities. With these programs (don’t call them entitlements), the people can enjoy their pursuit of happiness. This reflects an inversion of the libertarian-Jeffersonian view of the Declaration of Independence.

While conservatives for years have rallied around the “libertarian” vision of the Constitution, only recently have liberals turned to this history as a foundation for their views. For example, President Obama has focused on the constitutional importance of offering affordable health insurance to the people.

As I discuss in my new book, “Unprecedented: The Constitutional Challenge to Obamacare,” upon signing the Affordable Care Act, President Obama declared that it enshrined “the core principle that everybody should have some basic security when it comes to their health care.”

On March 22, 2010, minutes after the midnight vote in the House that passed the ACA, a jubilant Speaker Nancy Pelosi beamed that “this bill tonight [creates the] opportunity for affordable health care for all Americans [so they] have the freedom to have a healthier life [and] to have the liberty to pursue their own happiness.” Pelosi was channeling Thomas Jefferson’s eternal ode to freedom from the Declaration of Independence, which recognizes our “inalienable rights of life, liberty, and the pursuit of happiness.”

President Obama delivered a similar message in his second inaugural address, also evoking Jefferson. “That they are endowed by their creator with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness. Today we continue a never-ending journey to bridge the meaning of those words with the realities of our time. For history tells us that while these truths may be self-evident, they’ve never been self-executing. That while freedom is a gift from God, it must be secured by his people here on earth.”

It is the people, through the collective, not the individual, who must secure these rights. In his recent speech on the 50th anniversary of the March of Washington, President Obama remarked that “liberty is linked to one’s livelihood, that the pursuit of happiness requires the dignity of work, the skills to find work, decent pay, some measure of material security.” And it is the federal government, empowered by the Constitution, to ensure that those livelihoods are available.

These two competing conceptions of liberty, between positive and negative views of freedom, reflect a more accurate dichotomy in our constitutional order. The structural provisions of the Constitution, which limit what the federal government can do, stand in stark contrast with the positive vision of freedom, which requires the federal government to take such action.

Going forward, meandering between these two poles of security—that of the individual and that of the collective—will narrate our tale of two Constitutions. Under our Supreme Court, for progressives and libertarians, it will be both the best of times, and the worst of times.

Josh Blackman is a law professor at the South Texas College of Law, Houston, and the author of “Unprecedented: The Constitutional Challenge to Obamacare.”

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