Judge John Roberts has now been confirmed as the 17th chief justice of the US Supreme Court. Bushy is set to name another justice to fill the second vacancy any day (hour?) now. So it seems an appropriate time for another post on constitutionalism.
One of the themes Senator Biden sounded during the Roberts hearings was why the nominee did not support a broader interpretation of the Constitution to include more rights. A few weeks ago I offered one reason why the judge might be reluctant to recognize some rights. Namely: they might not be in the Constitution. But going beyond that, we might ask WHY some rights are not in the Constitution. If they are not, perhaps it is time from some amendments to put them there?
Let us begin with the republic’s mission statement, the Declaration of Independence. Perhaps better than any document before or since, the Declaration articulated the Enlightenment Era’s conception of government: People have certain unalienable rights. Governments are constituted for the purpose of securing these rights. If the government fails in this raison d’etre, the people have a legitimate cause to overthrow the government.
So if governments are constituted for the purpose of securing rights, then why not secure the heck out of all sorts of rights? This was basically the gist of Senator Biden’s indignant question to Mr. Roberts.
The answer is rather simple. It lies in the somewhat paradoxical fact that rights inherently involve restrictions of freedom. My right to life restricts your freedom to kill me. When we say that someone has a right to something we mean that the rest of us have an obligation to respect that right. Some obligations are more costly than others. And in some instances the obligation to respect Mr. A’s right may be onerously costly to Mr. B. It may even cost Mr. B his own rights! Thus, we have to be very careful when we delineate the rights which people possess. We cannot just hand them out like so many public high school diplomas.
To make this more concrete, let us think of some rights which can be respected with relatively low cost. Take, for instance, the right to life. When we say that I have a right to life, we oblige the rest of you to respect that right. In general, it is fairly easy to respect it. You don’t have to do anything but resist the temptation to pull a trigger. For another example, take the right to property. Here again, my right to my wallet means that you are obliged not to take it from me. Not too terribly onerous an obligation. These are examples of what philosophers call “negative rights.” They get their name because respecting them requires no positive action be taken by others.
I think it is safe to say with little exaggeration that at the time of America’s founding, negative rights were the only recognized rights. Those who recognized a broad class of negative rights were called liberals and those who had a more circumscribed view of rights were known as conservatives. (Nowadays few thinkers in the Western world defend the old conservative position.) As the 19th century wore on, however, some came to recognize a new species of right: what some have called a “positive right.”
Unlike a negative right, a positive right DOES obligate positive action be taken by others. For instance, some say that I have a right to medical care. You are in violation of my right if you are a doctor and you do not provide medical services to me. When society says that I possess a positive right like that of medical care, it is asking a great deal more of my fellows than when it says I have a negative right. It is obliging the nurse, the doctor, the hospital employee to attend to me. Other examples of positive rights include the right to education, or what FDR called the right to “freedom from want.”
Like those recognizing negative rights, those recognizing positive rights also called themselves liberals. This of course, got confusing, so to distinguish themselves from both conservatives and the new liberals, those who didn’t recognize positive rights began to call themselves classical liberals. Increasingly, they call themselves libertarians.
Anyway, back to the story. Why do libertarians fail to recognize positive rights? For one thing, it is simply more costly to impose an obligation on others to do something than it is to oblige them not to do something. In most instances, the obligation to respect another’s right to life or property can be fulfilled without cost. But an obligation to provide medical care can be extremely costly. Are all doctors obliged to save all people who might be suffering at all times? Obviously they must sleep. Are they permitted to take the weekend off? If we oblige someone to take a certain course of action—which is what we do when we recognize a positive right—we rob people of their more fundamental negative right to liberty.
The logic becomes crystal clear when we take the example to its extreme and recognize every positive right which comes to mind: a right to a job, a car, a girlfriend. The only way to recognize these rights is to force others to hire you, give you cash, or go see a Hugh Grant movie with you. A free society is impossible when everyone has a right to everything under the sun.
Because positive rights can be so much more costly to respect, their recognition poses another important problem: the risk that society will simply ignore them. No society is actually going to enforce someone’s right to medical care by obliging every doctor and nurse to work every waking hour. Thus society is likely to tolerate the abridgement of positive rights. Once it becomes acceptable to abridge a positive right, it may become acceptable to abridge more fundamental negative rights.
On this, all liberals, classical and modern can agree. A society which fails to recognize fundamental negative rights is a society which is lost.
