Archive | Slavery

More on the “Tradeoffs” in Allowing SSM and Abolishing Slavery

Commenting on University of St. Thomas law professor Robert Delahunty’s recent op-ed, my colleague Richard Painter shares some thoughts on the subject of limiting the freedom of some people so that others may live in a world unstained by that particular freedom:

Let’s put aside for the moment the fact that I don’t see such a tradeoff with abolition of slavery because slaveholders had no legitimate right to own other human beings. What about Delahunty’s core argument that there are often tradeoffs between individual liberty and our right to live in a social world that adheres to common ethical values? Putting aside the same sex marriage debate as well, here is perhaps a concise summary of the argument in support of constitutional changes that constrain the freedom of some individuals but at the same time allow government to create the conditions for individual as well as collective moral well-being according to our religious belief:

By its decision to carry out the political and moral cleansing of our public life, the Government is creating and securing the conditions for a really deep and inner religious life. The advantages for the individual which may be derived from compromises with atheistic organizations do not compare in any way with the consequences which are visible in the destruction of our common religious and ethical values.

Does such an argument for constitutional change make sense? What are its implications?

What say you, gentle readers?

UPDATE: Professor Painter has updated his original post with the following:

* [footnote added 9/8/2012] These two sentences are I believe a close approximation of Delahunty’s argument about tradeoffs between individual freedom and freedom to live in a world that conforms to collective ethical and religious values.  These words are taken verbatim from a speech given on March 23,

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Lincoln on “Liberty” and Slavery

Apropos the claim that slaveholders lost “freedom” when slavery was abolished, Eugene reminds me of what Abraham Lincoln said in his Address at a Sanitary Fair, in Baltimore, on April 18, 1864:

The world has never had a good definition of liberty, and the American people, just now, are much in need of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatible things, called by the same name — liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names — liberty and tyranny.

The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails today among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty. . . .

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Slaveholders Lost Freedom Because of Emancipation, Argues Con Law Prof

University of St. Thomas Law Professor Robert Delahunty argues in this morning’s Minneapolis Star Tribune that “whenever the law expands the freedoms of one person or group, it necessarily contracts those of another.” Thus, he asserts that if gay couples are granted the freedom to marry, gay-marriage opponents will lose the freedom to live in a world without gay marriage — or, as he puts it, a world in which “marriage has a particular meaning” relating to “natural reproduction and family life.”

As another example of a “tradeoff” in human liberty, Delahunty cites slavery.

Of course, some tradeoffs are desirable. No one now regrets that the constitutional amendment banning slavery necessarily ended the freedom to own slaves. But it is not an argument for that amendment that it expanded freedom without contracting it. It did both.

So slaveowners lost what Delahunty calls a “freedom” — “the freedom to own slaves” — when they were forced to live in a world where they could no longer own slaves. It’s just that slaves gained more freedom from their freedom than slaveholders lost from losing the freedom to own other people. [...]

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