Pondering Positive Rights
In light of some of the responses to the League’s constitutional convention, I’ve been doing some thinking on the subject of so-called positive rights and want to take the pulse of readers here. To those of you who believe there is or ought to be a constitutional right to health care, do you believe this right exists outside the context of the state? That is, if we suddenly found ourselves stranded on a desert island with no government or formal laws, do I nonetheless have a right to receive medical services from you similar to your right against my stealing your possessions or causing you physical harm? What if you need my shirt to strain your drinking water–part of your "rights" to basic food, water, and health care? Can negative and positive rights co-exist?
You can see where I’m going with this: some kind of things are appropriately called basic, or constitutional, rights, and others are something else. But I genuinely want to understand the case for putting positive rights in a constitution, and how they might interact with or impact negative rights.
After initially posting this on Dutch Courage, I came up with an alternative formulation of the question, which I posed to @kylecupp and @eliasisquith in our ongoing Twitter discussion:
Are positive rights PERSONAL? Can I AS AN INDIVIDUAL (or a group or even a government agency on my behalf) enforce a “right” AGAINST YOU to provide certain things (health care, food, retirement, education, etc.) TO ME?
Keep in mind that, as a conservative and more importantly as a Christian, I accept I have certain moral obligations to my fellow man. But it is my belief that if I shirk in those duties, I account to God, not to any man. Political obligations, on the other hand, do require us to account to man. Are the positive rights mentioned above, in the world constitutions mentioned in the study about our unlovable constitution, or in the South African constitution TVD referenced, the sort we account to other men if we fail to provide? Are they personal, or are they for us each to work out for ourselves in fear and trembling in our respective moral and/or spiritual beliefs?
Kyle’s comments also got me thinking about something else. (Kyle, you really have been my muse this week!) Most of the “rights” in our Bill of Rights really are structured as natural rights. The right to free speech is only guaranteed as against Congress making any laws abridging it. It was later extended to mean any act of any arm of government, federal or state. But notice that it never mentions that we have a personal right of speech, i.e., as against other private citizens or entities. Yet obviously it exists. If there was not an implicit, natural right to freely speak, I would be permitted to use reasonable force to prevent you from speaking ill of me—even if true. But the uncodified common law has never permitted this, having always recognized a basic negative right to speech. Similarly, the right to private property is protected by the Fifth Amendment against taking by the government unless for a public use, and even then requires just compensation. But surely the Constitution’s silence as to common private theft does not suggest neutrality on the matter.
Implicit in our Constitution, then, are natural rights to speak freely on true matters and to own private property. So fundamental are these negative rights as against our fellow citizens that they have existed in the common law throughout our nation’s history.
Here’s the point: The intellectual and legal history underlying our Constitution reveals its adoption of a political philosophy of negative rights. I don’t think there are any implicit positive rights in the Constitution, other than procedural rights (habeas corpus, jury trial, confrontation of witnesses, etc.), but I’m open to correction. So if we were going to craft a new constitution, then:
(a) Do negative rights conflict with the positive rights we might want to include in that constitution?
(b) If so, do we need to disavow our long common law history to the extent it champions those negative rights?
(c) Do we need to identify a new political philosophy that provides the intellectual basis for a constitution of positive rights (like the Framers did by invoking Locke’s phraseology in adopting a constitution of negative rights)?