Small-government Freedom vs. Big-government Rights

The issues of Reconstruction continue to animate today’s political rhetoric.


One of the central words in conservative rhetoric is freedom. The far-right members of the House are the Freedom Caucus. Nate Silver did the math, and found that the 2012 Republican platform mentioned freedom four times more often than the Democratic platform. At times they even push it to absurd lengths: To chide France for not supporting the invasion of Iraq, House Republicans renamed their cafeteria’s french fries “freedom fries“.

Freedom is so universally cited by conservatives that liberals often satirically suggest the explanation “because freedom” for any conservative proposal that doesn’t add up. (Wonkette: “Ben Carson will defund commie liberal colleges, because freedom.” Josh Marshall has used “Because Freedom” as a satirical headline at least twice.) Freedom, they’re suggesting, is just a buzzword conservatives throw out whenever they have no substantive justification for what they want to do.

Its not that Democrats don’t like freedom, but they tend to talk about particular freedoms (freedom of choice) rather than capital-F Freedom as an abstract entity. They’re more likely to talk about rights: voting rights, abortion rights, civil rights, and so on.

There are, of course, a large number of counter-examples in both directions. (Gun rights, for example, or FDR’s “freedom from want” and “freedom from fear”. [1]) But in general, the parties are talking about two subtly different concepts: Freedom, particularly the way conservatives use it, is inextricably linked to small government: Freedom means the government doesn’t get in your way.

Rights on the other hand, only exist if society provides some method of enforcement. Without a court you can appeal to when your rights are violated, and ultimately, without a police force or army that will enforce that court’s judgments, you don’t have any rights. Black children, for example, didn’t begin to acquire a right to an equal education until President Eisenhower sent the 101st Airborne Division to Little Rock. Rights require some kind of government to enforce them, and if the forces that want to violate your rights are strong, you need a really big government. [2]

A simple example: If you want to be able to buy a little marijuana and smoke it without fear of narcs busting down your door, you want freedom. But if you want to be sure that what you buy really is marijuana, that no toxic or addictive chemicals have been added to it, or that the seller won’t just bash you over the head and take your money without giving you anything, then you’re looking for your rights as a consumer. Your freedom just needs the government to get out of your way, but your rights require government involvement. [3]

The relative value of freedom vs rights depends in large part on how much power you have. If you are wealthy, well-connected, or otherwise privileged, then there are all kinds of things you could do, if government would just stay out of your way. But if you are poor, then the barriers you face have more to do with your lack of resources than with government regulations.

Powerful groups can defend their own prerogatives whether they have government-enforced rights or not. Nobody has to force lunch counters to serve whites; no parent has to go to court to make the local public school offer courses in English; Christian children aren’t pressured to say “under no God” in the Pledge of Allegiance; and men in the workplace don’t have to wonder whether a glass ceiling is holding them down. But the rights of less powerful groups depend on government.

In the course of a typical workday, a woman who makes fries at McDonalds isn’t all that constrained by the government. Sure, taxes are taken out of her paycheck; she has to keep her hair covered while preparing food and wash her hands after using the bathroom; and she faces the threat of jail if she skims from the till, but the whims of her shift manager are a far bigger source of oppression than all the pencil-pushers in Washington.

On the other hand, the guy who owns her McDonalds franchise faces constant assaults on his freedom. He can’t pay his workers the $5 an hour he thinks they deserve, even if they’re so desperate they would have to take it. He can’t demand that they work in unsafe conditions. He can’t extract sexual favors from them. His kitchen has to face health inspectors. He has to make sure the trash is properly disposed of. Zoning keeps him from expanding to the new location he wants. And on and on and on. Everywhere he looks, there’s a regulation or a bureaucrat or a potential lawsuit. Tyranny, that’s what it is.

Several of those restrictions on his freedom are what the government has to do to establish the woman’s rights. She has a right to a basic level of respect and fair treatment from her employer, and (without government) she lacks the power to make him respect those rights.

That’s why American political rhetoric about freedom has such a bizarre history: a lot of it comes from slave owners. “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?” Patrick Henry demanded in the speech that ends with his memorable: “Give me liberty or give me death!” But he died owning 65 slaves. James Madison enshrined freedom of speech and freedom of religion in the Bill or Rights, but owned over 100 slaves. Thomas Jefferson is said to have owned 600 slaves in the course of his life, and a sizable chunk of his surviving descendants were fathered on a slave.

Confederate rhetoric was full of freedom, and the corresponding threat of “tyranny” or “slavery” (for white Southerners) if their cause did not prevail. In the first line of his famous speech “Slavery a Positive Good“, Senator John Calhoun warned that if the South didn’t respond to even the slightest encroachments on the institution of slavery, Southern whites were “prepared to become slaves”. In his inaugural address, Confederate President Jefferson Davis invoked “the consent of the governed” to justify a government that disenfranchised not only all its black subjects, but many poor whites as well. “All we ask is to be left alone,” said Davis. Left alone, that is, to enslave others.

The things powerful people want to be left alone to do have changed over the years: Now they want to be able to pollute rivers, get miners killed, refuse to serve gays and lesbians, use the public schools to promote their religion, put obstacles in front of minorities voting, and so on. But the basic rhetoric has stayed the same: If you just keep the government out of everybody’s way, then we’ll have freedom.

And it’s true: We will have freedom, but we won’t have any rights that more powerful people want to take away.

To see these concepts worked out in the most extreme way, pick up Gregory Downs’ recent book After Appomattox: Military occupation and the ends of war. It tells the story of the post-surrender occupation of the South by the U.S. Army, and the official state of war that continued until the last Confederate state had its representatives seated in Congress in 1871.

As I’ve described several times before, the Reconstruction Era is the unspoken reference behind a lot of the current conservative usage of tyranny, particularly as it relates to tyranny being overthrown by armed civilians. The tyranny in question was the military occupation of the South, which was absolutely necessary to guarantee any rights at all to the newly freed slaves. A terrorist insurgency by Confederate veterans eventually made the occupation more costly than the North could stomach, and black rights all but vanished after the troops were withdrawn, leading to the Jim Crow era.

Downs describes the philosophical shock that many Northerners suffered when they realized that slavery couldn’t be eliminated just by issuing proclamations or passing Constitutional amendments.

Wartime emancipation and the postsurrender struggle against slavery forced Northerners to examine the question of whether people could be free without the intervention of the government.

The law might say one thing, but the facts on the ground said something else.

[S]lavery endured on the ground well after the end of fighting. Of the nearly 4 million slaves in the United States in 1860, the vast majority were still held in bondage as the Confederate armies surrendered.

Slaves only became free when troops were around to prevent the masters re-asserting their ownership.

Ambrose Douglass, held a slave in North Carolina, captured the relationship between emancipation and the soldiers’ presence. In his area, “I guess we musta celebrated ‘mancipation about twelve time … Every time a bunch of No’thern sojers would come through they would tell us we was free and we’d begin celebratin’. Before we would get through somebody else would tell us to go back to work, and we would go.”

Many whites saw the same reality:

Arkansas’ U.S attorney similarly wrote that “he who stands between the late master and the freedmen for their protection, must be backed by the power of the bayonet.”

To the former Confederate, though, “bayonet rule” looked more like this:

Northerners knew they wanted to end slavery, but had no clear notion of what freedom would mean for the ex-slaves.

As freedpeople taught officers about the enduring power of slavery, soldiers and ex-slaves together developed the notion that freedom meant accessible rights. … [E]x-slaves found it easy to invoke rights as the measure of what it meant not to be enslaved. As slaves, they had virtually no rights they could defend in court. Looking to the experience of free people around them, they defined freedom in part as the opportunity to have these basic rights — marriage, control of children, property ownership, travel, and contract — protected by the government. … Instead of a march to freedom, with its connotations of separation from the state, freedpeople and soldiers described a walk toward government.

In particular, black men’s right to vote was established on paper by the 15th Amendment. But in reality, it only existed only where federal troops guarded the polling places. When the troops were withdrawn, Confederate veterans terrorized blacks who tried to vote. Ultimately, new state governments elected almost entirely with white votes disenfranchised blacks almost entirely until the federal government re-inserted itself into the situation in the 1960s through the Voting Rights Act.

Downs draws the conclusion:

[L]ooking at the story after Appomattox forces us to confront the dismaying, necessary fact that our own contemporary freedom and civil rights are in some ways the products of war powers. Even the rights we cherish are often fashioned by coercion.

So bear that in mind the next time you hear a conservative politician wax eloquent for freedom and against big government. How many of your rights will have to go away in order to allow the powerful people he represents the freedom he wants them to have?

[1] The confusion is amplified by two rhetorical back doors. In general “freedom from X” is a roundabout synonym for “the right to not-X”. So “freedom from want” includes a right to a minimum level of food and shelter. Conversely, the “right to be let alone” is a fairly broad description of what I am calling “freedom”.

[2] One popular conservative trope is that our rights come from God, not from the government. Ted Cruz said:

What is the promise of America? The idea that, the revolutionary idea, that this country was founded upon, which was our rights, they don’t come from man. They come from God Almighty. And it’s the purpose of the Constitution … to serve as chains, to bind the mischief of government.

While an appeal to the Declaration of Independence’s soaring rhetoric “All men … are endowed by their Creator with certain inalienable rights” is inspiring, it is also ineffective, because God is notoriously poor at policing rights-violations in a timely manner. His mills, after all, grind slowly.

[3] In this case, as in many others, the two notions are in opposition. What about the seller’s freedom to lie to you, to cheat you, or to bash you over the head? Your rights depend on restricting his freedom.

Post a comment or leave a trackback: Trackback URL.


  • Donna victor  On December 21, 2015 at 10:49 am

    Incredibly thoughtful. Watching Ken Burns Civil War, reflecting on the aftermath and how the positions of Dems and the Republicans have changed in MY lifetime. WE the people have the responsibility to balance the freedoms of the many with the the basic human rights every individual has…or should have. Ultimately it is big government that must enforce and balance the paradox.

  • J'Carlin  On December 21, 2015 at 10:58 am

    I object to your “fathered on a slave” bigotry. By all of the real histories of Jefferson’s relationship with Sally Hemings she was treated as the step mother of his first family, and the female head of the Hemmings household which happened to be located in Montecello. There is no indication that she was not a willing and consentual partner in creating the Hemmings family under the protection and support of a powerful landowner. There was no possibility of marrying her under the conditions of the day and it would have been politically impossible to flaunt his relationship as father to a bunch of mulatto children.

    How many lilly white children exist that were fathered on a Massachusetts or New York millworker? Were they treated any better or worse than the Hemmings family? Or in more modern times fathered on a starlet? Does your liberal icon Clinton have any children fathered on a bimbo? Does he talk about them. Do you?

    • pauljbradford  On December 21, 2015 at 3:40 pm

      I thought the phrasing “fathered on a slave” was properly worded to make clear that this was what many people would consider a non-consensual relationship. Society recognizes many relationships that, despite superficial consent, can never be truly consensual due to power imbalances. For example, I would not consider any sexual relationship between a prisoner and a guard consensual, under any circumstances. The relationship between an owner and a slave has a far wider power differential than the prisoner/guard relationship, so in my opinion it could never be consensual. Apparently, opinions differ on this.

      • Anonymous  On December 21, 2015 at 8:31 pm

        I had a similar reaction to pauljbradford’s. The negative consequences for her to refuse could have been huge. The norms of the day wouldn’t have allowed Jefferson to marry her, but they would have allowed him to kill her with zero consequences. She may have been a very well treated slave, but she was still a slave. “No thank you” wasn’t really an option.

    • Bel  On December 21, 2015 at 8:04 pm

      Please spare us the Jefferson apologetics. Since Hemmings WAS Jefferson’s slave, she wasn’t free to make other choices for herself. And as a slave, resistance was dangerous. Coercion or rape, this relationship was about power–Jefferson’s power in over her and the fate of her children. How would you fall in love with the person with the power to sell you, your children away from you, who could possess your body at their whim, punish you for resistance? Is obedience or submission love? You must be a white male in order to write such rubbish.

    • Daniel  On December 21, 2015 at 8:19 pm

      Leaving aside the parts about which are the real histories of that relationship, I just want to note that Bill Clinton isn’t a liberal icon and never was. He was a corporatist centrist. That may be the best we can get in a president at this point, but that fact is an ongoing disapointment to real liberals. (Also, if he’d had children out of wedlock I think we would have heard all about it by now. Apparently he was either diligent enough about safe sex, and/or lucky.)

  • Larry Benjamin  On December 21, 2015 at 7:39 pm

    My Libertarian friends are fond of saying “your freedom to swing your fist ends where my nose begins,” but don’t seem capable of accepting that the only way to enforce this freedom and its limitations is through government.

  • Loren F. File  On December 21, 2015 at 8:58 pm

    Some of the distinction between “rights” and “freedom” used to be captured in the term “underprivileged” when used to describe the status of individuals that differ in some way – i.e., poorer, of a minority race etc. – from the majority in a society. I don’t know why the term is so little used these days. I think it it provides a useful way to think of a number of equal rights issues. Whites, men, heterosexuals etc. are clearly privileged beyond those of different races, genders or sexual inclinations etc. simply because they are in the majority and government policies providing some privileges to the minorities are a natural way to address the inequality.


  • Leon  On December 21, 2015 at 9:17 pm

    Speaking of, violations of employment and labor law are widespread, not only in service and blue-collar jobs, but also with professional white-collar jobs. Employees are often unaware of their rights or too concerned about various forms of retaliation by their employers to do anything about it.

    Americans would be a lot better off if we talked to each other more about employment situations.

  • Abby  On December 21, 2015 at 9:58 pm

    Interestingly, the freedoms I tend to think about on a routine basis are ones having to do with keeping both other people and occasionally the government from hurting me. Sometimes the government is the hidden partner in keeping other people from hurting me, for instance by policing. The ones I end to think about: The freedom to walk down the street without being molested, even at night, even if I go out running. The freedom to have a job–any job. The freedom to have a good job that I’m qualified for. The freedom to say something without being hit for it, or even interupted and ridiculed for it. The freedom to think my own thoughts. The freedom to really care about something and not have it crushed. The freedom to sit quietly and not be molested or ridiculed simely for existing. The problem with freedoms like this is that they are not consistently promoted by either resorting to government or by avoiding it.

  • Ben Scherrey  On December 22, 2015 at 1:12 am

    The author has such a fundamentally wrong view of what freedom/liberty is and where our rights are derived from that the entire premise of his article is without merit. It’s also not about conservatism (aka the right) and liberals (aka the left). It’s about authoritarianism and liberty. Once the argument is made from that perspective all of the confusion by the author is cleared up and his mistakes are laid bare.

    Our rights are inalienable and inherent in our being. They are based on the notion that you may do whatever you like so long as you do not initiate coercion or force and violate someone else’s rights. Given that simple understanding you can see that most of the claims of the author are baseless paper tiger arguments without merit. Rights are not granted to us by any government. The ONE THING that makes America unique in the world of nations is that our Constitution explicitly recognizes that fact and establishes a government upon which certain explicit and limited powers are given – by the people – to protect these already existing rights. Government has no power to grant rights to anyone. The claim that it can is a nonsequitur and completely false.

    Government, on the other hand, is force. Read Bastiat’s “The Law” to understand this. It’s short. Will take less than an hour and will save you many wasted hours of mistaken belief and years of tyranny. The belief that force is required to “grant’ you rights is just absurd. Government is there to protect you against the use of coercion or force by others which would violate your natural rights. That is government’s sole role and purpose.

    Unfortunately, more often than not, as government power grows so does the abuse of our rights. The author is guilty of supporting this very thing in his confusion of what is a right and what is actually coercive force against others. There is no right to a minimum wage, for example. That infringes the rights of both workers and employers to negotiate in good faith. The author continues to espouse policies allow the government to pick winners and losers. This is tyranny and everyone loses.

    In all this is an argument for more government control of people’s lives to make people behave in a manner that the author has deemed to be correct. The author believes that people don’t know what’s best for them and so government must come in and tell us all how to behave. Well that’s been tried since history began and it never once resulted in more freedom, rights, or liberty. So stop it already.

    • Larry Benjamin  On December 22, 2015 at 6:13 am

      On the contrary, the concept of “inalienable rights” is fundamentally flawed. Where do so-called “inalienable rights” come from? One answer is “nature;” for example, a lion has claws to defend itself, therefore I have an “inalienable right” to own guns for self-defense. But one could use the same argument to point out how certain animals have sex with each other, and claim a right to rape on the same basis. “Rights” here are nothing more than pointing out that something exists that I want for myself, so I have a “right” to do it.

      In fact, “rights” are what we accord to each other. Government doesn’t just enforce our rights, it creates them as collective action and agreement. This essay explains it well:

      It’s also facile to say that people should be able to negotiate “in good faith” without government interference. In practice, the playing field is often so biased in favor of one side that “negotiation” is a travesty. Government ideally attempts to address these inequities (such as the powerful employer versus the worker who depends on him), based on an assumed “right to fair treatment” which is not “inalienable,” but is something we as a society have decided that we want for ourselves. “Inalienable rights” are a convenient and useful illusion.

    • jh  On December 22, 2015 at 11:05 pm

      “Our rights are inalienable and inherent in our being.”

      If our rights truly were inalienable and inherent in our being, I doubt that slavery would have ever existed. The fact is that we all constrain some of our freedoms (rights to do something) in order to live in this society.

      Good government exists to balance the interests of the wealthy and the powerful against the interests of the rest of the citizenry. I won’t chop your head and you can’t abuse me to death. That is a fair exchange. Without civil laws, it will be a regression to barbarity and brutality to enforce one’s will.

  • Abby  On December 22, 2015 at 8:32 pm

    Mr. Scherry doesn’t seem to understand the origins of the United States. Even before we were a country, the successful colones like Plymouth succeeded because the settlers formed compacts in which they agreed how they would behave toward each other, and what obligations individuals had toward the colony itself. Dwellings were built together, and food was obtained and guarding was done by individuals as their duty toward the group as a whole. The reason that the American Revolution succeeded was because the colonists were organized and behaved as a group with mutual obligations, rather than as a mass of individuals. This continued, and we eventually wound up with a constitution, and a constitutional government. The revolution itself was based on the idea of “no taxation without representation”, not “no taxation at all”. The very slogan “no taxation without representation” clearly elucidates the idea that the people who would become U.S. citizens understood from the outset that individuals had rights, but they also had duties toward the nation as a whole. The government wasn’t considered an enemy, or something that was “forced” upon them, as Mr. Scherry says. The government was something that was created by the former colonists, in order to have a country.

  • jaybo  On December 24, 2015 at 1:06 pm

    You can usually tell “more Leftist horsehit” like this by the third paragraph…..Congratulations you made the cut —–#Leftistst=no-delayedgratification.,,,,

  • R Neal Peterson  On December 25, 2015 at 11:24 pm

    There is an additional aspect to this discussion of freedom. Using the South as the prime example (as in the essay). When legislation from Congress is in agreement with Southern desire, we hear no talk of tyranny coming from Southern States. But let the legislation — properly conducted by rules of the Senate & House, and voted by overwhelming majorities — let the legislation be against the general feeling in the South and you will hear mighty wails of TYRANNY. In other words, and to my way of thinking, these people are Anti-Democratic, are unwilling to abide by the principles upon which our government is founded. We live by majority rule, and have the courts to overturn laws that violate the Constitution.

  • mysanal  On December 28, 2015 at 4:57 pm

    Reblogged this on Mysa.

  • ccyager  On December 28, 2015 at 6:11 pm

    Thank you. This is the clearest explanation about the conservative vs. Democratic definitions of “freedom” that I’ve read. Now I understand.

  • Eli Damon  On January 23, 2016 at 10:04 am

    Interesting perspective, but it doesn’t entirely make sense to me. It’s based on a double standard about government action. Anything the government does that benefits poor people and people without power is active interference (good or bad depending on your political position), but everything the government does that benefits rich and powerful people is invisible and taken for granted. The Big Governement versus Small Government dichotomy is a scam perpetrated by right-wing politicians that left-wing politicians are too gullible to call out.

    That rich and privileged people have “freedom” in your sense is due just as much to government action as that poor and oppressed people have “rights” in your sense. The government charters corporations that gives rich people special rights. The government issues money that powerful people can accumulate and use to express their power, and it creates contract law and courts to uphold contracts that enable people with money to use it to get more money and prevent angry poor people from taking it away. The government directs tax money through contracts and subsidies to big corporations.


  • By Making It Real | The Weekly Sift on December 21, 2015 at 10:35 am

    […] This week’s featured post is “Small-government Freedom vs. Big-government Rights“. […]

  • […] out what leadership means to me, and what kind of leader we should be looking for. I traced the history of freedom rhetoric, and why it so often runs counter to rights. And whether it qualifies as fascist or not, how the […]

  • By The Yearly Sift: 2015 | The Weekly Sift on December 28, 2015 at 10:11 am

    […] that leaned heavily on particular books include “Small-government Freedom vs. Big-government Rights“, which leaned on After Appomattox by Gregory Downs. “What Just Happened?“, my […]

  • By Stopping Power | The Weekly Sift on June 20, 2016 at 11:48 am

    […] the abolition of slavery was announced in the last holdout state, Texas. As I’ve discussed before, that was far from the end of slavery, and abolition often only applied within the reach of […]

  • By The Monday Morning Teaser | The Weekly Sift on April 3, 2017 at 7:20 am

    […] (Comcast’s) vs. Rights (Yours)”, which follows up on the freedom vs. rights idea I first noticed when talking about Reconstruction, that the rights of the weak depend on institutions that restrain the freedom of the strong; and […]

  • […] first started talking about this more than year ago in a historical context: During Reconstruction, the rights of the newly freed slaves only existed as long as the Army was […]

  • By Lessons Learned | The Weekly Sift on April 3, 2017 at 12:03 pm

    […] (Comcast’s) vs. Rights (Yours)” elaborates a freedom vs. rights theme I raised in 2015, and “Can We Get Real About […]

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: