Democrats, however, have a very different idea about what constitutes a "fair shot." It's not just a matter of procedural fairness; it also involves questions of distributive fairness. To see this, we must discuss liberty alongside fairness.
Two Kinds of Liberty
All Americans value liberty. One of the first manifestos for the Tea Party was titled Give Us Liberty (by Dick Armey and Matt Kibbe). Occupy Wall Street renamed Zuccotti Park "Liberty Park." So as a first pass we might simply say that left and right value liberty equally -- they just disagree on the main threat to American liberty. The Tea Partiers say it is an out-of-control federal government; the Occupiers say it is big business and the 1 percent.
But the differences run deeper than that. Liberty comes in two competing flavors: positive and negative. The philosopher Isaiah Berlin coined the terms positive liberty and negative liberty in 1958 as European welfare states were developing new ideas about the relationship between governments and citizens. Negative liberty refers to "the absence of obstacles which block human action." This is the traditional understanding of liberty: It's the freedom to be left alone; it's the freedom from oppression and interference by other people. This is the kind of liberty that, when violated, elicits the psychological state called reactance, which is an angry reaction against perceived pressure or constraint. Reactance makes people do the opposite of what they were pressured to do, even if they were not inclined to act that way beforehand.
Positive liberty, in contrast, refers to having the power and resources to choose one's path and fulfill one's potential. Berlin was summarizing a trend in postwar democracies in which some philosophers and activists began to ask: What good is (negative) liberty if you are stuck in a social system that offers you few options? Proponents of positive liberty argue that governments have an obligation to remove barriers and obstacles to full political participation, and to take positive steps to enable previously oppressed groups to succeed.
Perhaps the most eloquent argument for positive liberty was given by Lyndon Johnson in his 1965 commencement speech at Howard University. He began with a celebration of the Civil Rights Act, which granted negative liberty to African Americans: "Freedom is the right to share, share fully and equally, in American society -- to vote, to hold a job, to enter a public place, to go to school. It is the right to be treated in every part of our national life as a person equal in dignity and promise to all others."
Johnson then made the transition to positive liberty:
But freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, "You are free to compete with all the others," and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. And this is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result. [emphasis added]
Johnson's logic still seems sound with regard to African Americans in the 1960s. But does it apply to African Americans today? Or to Mexican immigrants? Once the left made the pivot from negative to positive liberty, it committed the Democrats to using the power of the federal government to pursue some policies in the name of fairness (as equality) and (positive) liberty that violated many other people's notions of fairness (as proportionality) and (negative) liberty. These policies were usually deeply unpopular, and they opened up lines of attack that Republicans pursued with great success.
Examples from the 1970s are numerous: Forced busing of public school students to achieve racial integration violated white parents' sense of negative liberty and triggered strong reactance. Affirmative action in education and hiring violated the idea of procedural fairness. Generous welfare programs violated many people's notions of proportionality -- the government seemed to give out money for nothing, which made it ever easier for men to abandon their children and pass the bill on to the taxpayers. These policies combined to alienate the white working class, driving much of it over to the Republican Party. The title of one book about that era says it all -- Jonathan Rieder's Canarsie: The Jews and Italians of Brooklyn Against Liberalism.
But these conflicts over competing notions of fairness and liberty are not just historical curiosities from a tempestuous time. They are still very much with us. Look at the New Haven firefighters' case -- the controversial 2008 case decided by Justice Sonia Sotomayor before she joined the Supreme Court. A white firefighter named Frank Ricci had gone to great lengths to study for an exam that was necessary for promotion to lieutenant. To overcome his dyslexia, Ricci had paid an acquaintance to read several books into a tape recorder, which Ricci then listened to. Ricci's hard work paid off, and he qualified for promotion. But because no black firefighters passed the test, the New Haven fire department decided to throw out the results, fearing a lawsuit under federal laws designed to protect racial minorities. Ricci and 17 other firefighters sued. The District Court sided with the city, and Sotomayor was a member of the three-judge panel that heard the case in the Second Circuit Court of Appeals. They too sided with the city and against Ricci. (The Supreme Court later overturned the decision and sided with Ricci.)
If you value fairness as proportionality, the initial ruling was an outrage. Ricci worked extremely hard, he overcame obstacles, and he succeeded. If you value procedural fairness, it looks bad, too: Everyone had a fair shot, everyone played by the same rules, but the rules were changed afterwards because they produced a group-based inequality. (The court had found no evidence that the exam was improper or racially biased.) Is this the vision of positive liberty that the left wants to take into the twenty-first century? If so, then the Democrats will be vulnerable in the Economic Theater of the culture war.
The map above shows the lay of the land. The three kinds of fairness are the lands west of the river; the two kinds of liberty lie to the east. Democrats have undisputed control over the northern provinces of equality and positive liberty, which are related concepts supporting notions of social justice. Republican forces are massed in the south--they control most of proportionality and negative liberty, and a portion of procedural fairness. So what would it take to shift the border? What would it take for each side to capture more territory?
The Coming Battles
For the Republicans, their main weakness is clear: procedural fairness. Especially after Mitt Romney's campaign, many Americans think of the Republican Party as the party of the plutocracy, trying to use the levers of government to maintain privileges, low taxes, and political access for the super rich. Republicans perennially oppose efforts to reduce the role of money in government and rein in the excesses of Wall Street. Democrats sell plenty of influence too, but at least they make visible efforts to make politics more procedurally fair.
Republicans could also challenge Democrats on the main piece of negative liberty that Democrats own -- sexual liberty. If libertarian influence grows over time while Protestant social conservatives weaken, the party could someday drop its opposition to homosexuality and gay marriage, allowing Republicans to claim that they are truly the party of liberty, not just in the boardroom but in the bedroom as well. (The same thing goes for drug use and decriminalization -- Republicans currently oppose negative liberty in the rec room.)
Republicans seem to have no interest in positive liberty, but some of their most innovative young thinkers can be seen laying the groundwork for an eventual move into that territory. Ross Douthat and Reihan Salam, for example, have been writing for years about how the Republican Party can become the party that helps the poor and working class achieve upward mobility in part by strengthening two-parent families. The goal is not social justice per se, but it is an attempt to use government to help groups that start off in life with a huge disadvantage -- a lower level of family stability.
For Democrats, the map shows areas of opportunity and risk as well. The Democrats often pursue "nanny state" policies that are good for public health, but that strengthen Republican claims on negative liberty -- the Affordable Care Act and its individual mandate being the most prominent case in point. Another change for Democrats would be to back away from their habitual preference for government regulation of businesses by applying stricter cost-benefit tests, as Cass Sunstein did as head of the Office of Information and Regulatory Affairs during Obama's first term. Indeed, the Obama Administration implemented fewer new regulations in its first three years than did the George W. Bush Administration in its first three years. Democrats have historically claimed to stand for the "little guy," so it is striking that small businesspeople tilt strongly Republican. That could change, particularly if Republicans continue to be seen as the party of big business. If Democrats can keep showing that they are responsive to the needs of the business community, and that they aim for fewer and smarter regulations, they might eventually retake some portion of negative liberty.
Democrats could also gain some ground on proportionality, particularly the negative side of proportionality: punishment for cheaters and slackers. The Democrats earned the label "soft on crime" in the 1970s, because they seemed to disregard proportionality out of compassion for criminals or concerns about racial equality. Bill Clinton made some progress reversing that association, and the plummeting crime rates of the 1990s reduced the pressure. But the Democrats should still be mindful of opportunities to punish cheaters -- opportunities they have traditionally passed up. Tort reform, for example, is popular. Many people are outraged by stories about frivolous lawsuits, which insult our sense of proportionality. Whether or not such lawsuits are major drivers of health-care costs, Democrats seem to be the party protecting trial lawyers (who are major donors), while Republicans have long been the party showing moral outrage and calling for changes. The Obama Administration took a step in the right direction in 2011 when it launched a drive to help states overhaul their medical malpractice procedures, including the creation of special health courts. Such courts -- opposed by the trial lawyers' lobby -- would have specially trained judges able to resolve malpractice claims quickly, awarding compensation from a set schedule. No more juries handing out extravagant settlements after long trials filled with testimony from dubious experts. Such courts would increase procedural fairness as well as proportional fairness.
Perhaps the biggest challenge Democrats will face in the coming years is to rethink their commitment to race-based affirmative action, and a conception of positive liberty in which African Americans are the focal group, as they were (quite properly) in Lyndon Johnson's time. The race gap in education and achievement has been shrinking in America for 60 years, whereas the class gap has been rising, particularly since the 1980s. It is now twice as large as the black-white race gap, by some measures. It is therefore increasingly difficult to offer a moral justification for giving hiring and admissions preferences to the children of married African-American lawyers, rather than to the children of white coal miners or single mothers.
Andrew Jackson's campaign slogan from 1820 seems apt for our time: "Equal opportunity for all, special privileges for none." If Democrats can manage the pivot from race to class in the coming years, and can make the argument for how and why government programs should be used to create positive liberty for the poor, in ways that violate neither proportionality nor the negative liberty of others, they'll be able to reclaim Jackson's slogan. It will be an inspiring banner for them to wave in the new culture war over fairness and liberty.
This article originally appeared in Democracy: A Journal of Ideas, an Atlantic partner publication.