The Wrongs of Rights 3: Positive Rights

Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

- Declaration of the Rights of Man, National Assembly of France, August 26, 1789

The political world of the Enlightenment era, in which America's Founders grew, learned, and developed their political philosophy, revolved around questions of rights versus power.

Traditional thought held to the doctrine of the Divine Right of Kings - that God had placed the king on his throne and that to defy or even question anything the king desired to do was to defy God.  As you might expect, the kings themselves subscribed wholeheartedly to this view and promoted it at every opportunity.

In stark contrast, our Founders believed that God entrusted rights, not directly to the king or any government, but to each person individually.  Then, via some form of social compact, the people granted limited powers to a representative government entrusted with just enough authority to defend the rights of all.

As we saw in the first article in this series, fundamental human rights are not granted by any government.  They belong to everyone simply by virtue of being human.

These rights are few in number but large in scope: rights such as freedom of speech and of conscience, of private property and assembly, of liberties of various kinds.  Most importantly, these rights are negative rights: you have them, and will continue to have them, by default.  Only if somebody exerts power to restrict your rights do you find yourself losing them.

Civil rights, unlike human rights, do not automatically apply to all mankind.  Instead, they reflect a person's mutual obligations to his fellow-citizens.

Not only that, civil rights carry obligations.  In order to have civil rights, citizens must fulfill the duties required of citizens.  Foreigners can share in civil rights, but only by following the process of naturalization - that is, accepting the obligations and duties of citizenship in order to enjoy its rights and privileges.

Although our elites seem to feel that there is no difference between natural human rights and civil rights and that both should apply to all people everywhere, most Americans instinctively understand the difference.

Words have meaning, though, and modern discussion often sees the use of the word "right" to describe something that is not a right at all.  Let's look at a concept called "positive rights".

The Right to Make Demands

A clear explanation of the concept of positive rights and how they differ from Constitutional rights both natural and civil, was given on a 2001 radio program by one of our best-known teachers of Constitutional law, one Prof. Barack Obama:

You know, if you look at the victories and failures of the civil-rights movement, and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples. So that I would now have the right to vote, I would now be able to sit at a lunch counter and order and as long as I could pay for it, I'd be okay, but the Supreme Court never entered into the issues of redistribution of wealth, and sort of more basic issues of political and economic justice in this society.

And uh, to that extent, as radical as I think people tried to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution - at least as it's been interpreted, and Warren Court interpreted it in the same way, that generally the Constitution is a charter of negative liberties: [It] says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf.  [emphasis added]

Mr. Obama understands the distinction between civil rights and natural rights perfectly.  As he noted, the Founding Fathers carefully placed essential constraints on the government via the Constitution and the Bill of Rights, clearly defining what it can't do to you.  The language of the document is almost entirely negative: "Congress shall make no law..."  "The right shall not be infringed... shall not be violated."

Our Founders deeply and rightly feared a too-powerful government; the purpose of the Constitution was to clearly spell out exactly what the government was permitted to do, and most importantly, what it wasn't permitted to do no matter how good an idea it might seem for government to do something forbidden by the Constitution.

For Mr. Obama, this is not good enough.  In his view, the weakness of the Constitution is that "it doesn't say what the federal government or the state government must do on your behalf."  The definition of what government must do is the driving force of the political left and has been since at least the days of FDR.

But what is government?  Government, as the Founders saw it, is nothing more than the collective will of the people.

A demand that government do something is, in reality, a demand for everyone to support doing it, directly or indirectly.  After all, who pays for the government?  We do, through our tax dollars.

Health Care, the Ultimate Positive Right

The cost of positive rights becomes crystal clear when you consider the so-called "right" to health care.  The left has banged on about this "right" for so long that it's been accepted as an article of faith by most Americans.  We don't hear arguments that the 30 million uninsured presents a problem; that's simply assumed.

Why, though?  Your right to free speech costs me nothing.  Your "right" to health care, though, is extremely expensive for someone, either for you or for someone else.  Unless you yourself are a doctor capable of treating your own self, any health care you receive must be provided by someone else.

There are only two ways for government to provide health care for you as a right, and our current system uses both of them: forcing providers to treat people for free and taking money from taxpayers to pay for someone else's treatment.

First, government compels medical practices to treat people that they know will never pay.  The Federal Emergency Medical Treatment and Active Labor Act requires that

Any patient who "comes to the emergency department" requesting "examination or treatment for a medical condition" must be provided with "an appropriate medical screening examination" to determine if he is suffering from an "emergency medical condition". If he is, then the hospital is obligated to either provide him with treatment until he is stable or to transfer him to another hospital in conformance with the statute's directives.

Compare this with what happens when you visit Wal-Mart.  You can browse the aisles all you like; but when it comes time to leave, you must pay for your purchases before you're allowed to cart them off.  If you try to sneak out without paying, it's called shoplifting and you wind up having a nice chat with the police.  You can try to convince them it was a shoplifting emergency, but they probably won't buy it.

According to EMTALA, though, the exact opposite is true for hospitals: they must treat you if you need it, and if you can't or won't pay, all they can do is ask nicely.  You yourself can waltz off with your ailment resolved, and not only can't they stop you, it's illegal for them not to treat you for free.

In effect, the government is stealing the property of the doctor - his time and materials - and giving it to whoever wants it.

Now, for most middle-class Americans, this is rarely an issue: we have credit records and the hospital will send the collections agency after us.  Only by filing for bankruptcy can we escape the bill and that applies equally to our Wal-Mart debts.

But for those who care nothing for their credit rating - those on welfare and, especially, illegal immigrants and their anchor babies - EMTALA and its "right" to health care creates a license to steal from you and from me.

Doesn't this constitute a "taking" which the Constitution requires to be compensated?  Technically, no: EMTALA applies only to hospitals that choose to accept government payments, and courts have found that this makes the obligation voluntary and not a "taking."  Unfortunately, since the government pays for such a vast proportion of American healthcare (the elderly and the poor just for starters), it's all but impossible to opt out as a practical matter.

Meanwhile, Mr. Obama plans to use this near-monopoly power to reduce healthcare costs by forcing down the rates government pays - which, remember, the hospitals must accept if they are to provide services to half the country at all.  The Wall Street Journal reports:

Like Medicare, the "public option" will control spending by using its purchasing clout and political leverage to dictate low prices to doctors. (Medicare pays doctors 20% to 30% less than private plans, on average.)

The government plans to pay something - using your tax dollars.  A "right" to health care is not free to all - someone must pay for it, and government's function in the equation is to force somebody to pay.

Positive Rights Destroy Real Ones

We see a very stark difference between positive rights and natural rights.  Everybody can enjoy natural rights without cost to anyone else.  Positive rights, though, have to be paid for - in cash, or in other people's time, and in a distinctly unjust way.

A "right" to food, by definition, can only mean that a person has a right to demand that the baker provide him bread - or demand that everyone provide him bread via taxes paid and used to purchase it.

A "right" to shelter, again, means either that a person can force his way into someone else's property, or force everyone else to give up some of their own property in taxes to buy shelter for him.

This isn't just an academic question; positive rights are a very real issue constantly promoted by leftists both in power and out of power.  Listen to this statement from Benjamin Jealous, new president of the NAACP:

But we must go beyond the civil rights guaranteed in the Constitution and advocate for the human rights that will assure that America's promise is realized for all. While our Constitution mandates equality, for example, there is no constitutional guarantee for an education, let alone a good education. The fight for good schools is a struggle for our human rights.

Mr. Jealous quite rightly realizes that there is no Constitutional right to education.  Unfortunately, he sets the right to a good education as higher than Constitutional civil rights, specifically as a human right.  This allows him to argue that meeting the "human" right of education is more important than the Constitutional rights of individuals - of freedom of conscience, of economic freedoms, of freedom from "takings" which we saw are ignored for doctors and hospitals.

This conflict of rights defines what America is and what America will become.  If everyone has an equal "right" to a government-provided education, then to improve the lousy education of some, others who now enjoy a good education will suffer because their schools will get worse.

That's what happened with the reviled "busing" programs of the 1970s - to make space in good schools for poor black kids, some white kids who'd previously enjoyed a decent education were bused to inner-city combat zones.

Has public education improved over the last 30 years?  Not even the most blinkered teachers union official would dare suggest it has.  It didn't improve for either the black kids or the white kids - it got worse for everybody.

Enforcing positive rights is a zero-sum game where the only winner is an all-powerful central government who gets the power to decide who should receive what - and the very act of making that decision is corrosive to all rights.

The Core Principle of Positive Rights

The basic idea of positive rights was best expressed over a hundred years ago by a German philosopher living in London and hanging out at the British Museum:

From each according to his abilities; to each according to his needs.

If you have money, the government will happily take it to better enforce someone else's positive rights; if you need money to enjoy a positive right because you seem to be incapable of obtaining it by your own efforts, have no fear: Uncle Sam will be glad to provide it to you, at the expense of the productive.  Communism in action, exactly according to the principles of Karl Marx!

As economically destructive as a belief in the existence of positive rights is, there is actually an even worse consequence: a government which enforces positive rights can force you to give up not just your wallet, but your very freedom of conscience and religion.  We'll see how in the next article.