The Wrong Basket Case
By Victor Morawski
While no single definition of “Rights” would be accepted as legitimate by all, one common denominator unites talk of rights: no matter how they are construed, their possession creates expectation from others of behavior that shows respect for those rights. This highlights a fact about rights that normally escapes the attention of the ordinary person: rights go hand-in-hand with duties. And the appointment of Sonia Sotomayor by Barack Obama to the Supreme Court elevates the import of this discussion to the highest possible level.
This linking of rights with duties forms the basis of the terminology surrounding Negative and Positive Rights. The Rights that most concerned our founding fathers, those they enshrined in the Constitution and Bill of Rights, are often called Liberty or Claim Rights, as they refer to our liberty to act in certain ways or underscore a justified claim we have to be treated in a particular fashion. With respect to these Rights others are said to have Negative duties of non-interference. Hence, they are called Negative Rights, not in a pejorative sense, but because their possession by persons means that there are certain ways others are not to act toward them.
To wit: If I have a right to life, then you are not to kill me. If I have a property right to my iPod, then you are not to take it from me. Others can fully exercise their duties with respect to these rights simply by doing nothing! If you walk past me on the street while I am wearing my iPod and do nothing, you have effectively respected my property rights to it.
The situation is quite different with another class of rights: “Welfare Rights.” Called Positive Rights, their associated duties require more than just non-interference with their exercise, They require of others positive action to secure these rights for their possessor. If I have a positive right to decent housing and a job that pays a living wage, then others have a duty to provide these things for me. Conservatives like myself are very suspicious of the existence of these Rights.
Barack Obama recognized these distinctions in a 2001 radio interview where he stated that the Warren Court was not radical enough because, “it didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution.” Their problem, as Obama sees it, was that they interpreted it [the Constitution] as a “charter of negative liberties [rights].” As such, the document merely tells what the states and federal government “can't do to you” but does not say “what they must do on your behalf.”
In appointing Sonia Sotomayor to the Supreme Court, we can be sure the President hopes he finds in her a justice who will push the Court to break free of those constitutional constraints that bound the Warren Court. Only then can the High Court deal with issues concerning “redistribution of wealth” and “political and economic justice.”
If he thinks by doing so, the Court will merely be adding to already existing Constitutional rights, he naively falls into the trap of viewing Negative and Positive Rights as if they were so many vegetables in a basket, where adding one more doesn't matter. As our Founding Fathers were careful to make sure that there were enough Negative Rights in the basket, we now need activist judges like Ms. Sotomayor to come along and make sure that some Positive Rights are thrown in as well.
But the “Basket of Rights” analogy is all wrong! Positive and Negative Rights tend to work against each other and cancel each other out. In order to service my supposed right to a living wage, the government will have to infringe upon the property rights of my employer in the form of higher taxes and constraints on his business decisions. Similarly if it is to enforce my supposed positive right to a clean environment, government must severely restrict the rights of those it deems evildoers – even to the extent of imposing ruinous carbon taxes on them in a bogus effort to support such discredited theories as “global warming.” Enforcing universal health care as a Positive Right, may require rationing that threatens some patients' very right to life.
A better analogy would be that of positive and negative electrical charges or positive and negative numbers. Now, it may be that rather than actually believing “Positive Rights” were accidentally neglected by the Founding Fathers, Mr. Obama may actually believe that Ms. Sotomayor's role is to help the High Court break free altogether of constitutional constraints on such “rights” shunned by its authors. To an originalist, this is even scarier.
Dr. Victor Morawski teaches philosophy at Coppin State University. His column, "The Philosopher's Stone," is distributed nationally free of charge by the Liberty Features Syndicate. Should you wish to subscribe, contact Alex Rosenwald at firstname.lastname@example.org.