Do we have a right to receive an education in the same way that we have a right to free speech? Do we have a right to healthcare in the same way that we have a right to own property? We often use the word “right” without thinking much about what the word actually means and without considering what the government is obligated to do about our rights. There are actually two very different conceptions of rights, and these two different conceptions are at the root of many political disagreements in the United States. Unfortunately, because most conservatives or liberals don’t even know that the other side has a different conception of rights, both sides often end up talking past each other in political discussions.
Positive and Negative Rights
Philosophers have created many ways to categorize rights: natural rights vs. legal rights1; claim rights vs. liberty rights2; individual vs. group rights.3 These are all great ways to classify rights, but when it comes to our relationship with government, the most useful category is positive versus negative rights.4
From the point of view of an individual citizen, a positive right is a right to get something from the government. A positive right thus obligates the government to take action. When we talk about having a right to eduction or a right to health care, we are talking about positive rights.
A negative right is a right to be left alone – the right for individuals to act without government interference. A negative right thus obligates the government to not take action. This includes things like the right to free speech, the right to keep and use property, freedom of religion, etc. Most (if not all) of the rights listed in the U.S. Bill of Rights are negative rights.
Like almost any human attempt at classifying and categorizing something, the categories of positive and negative rights are not perfectly black and white. Some people have argued that almost any right can be understood to be either positive or negative, depending on how you approach and define the right. In spite of this criticism, I still think that it is useful and meaningful to distinguish between positive and negative rights. The most recent national debate in the United States where differences between positive and negative rights came up was with healthcare reform.
Is There a Right to Healthcare?
When the U.S. Congress was considering various reforms of the U.S. health care law in 2009 and 2010, many Democrats zealously defended such reforms by arguing that health care was a right, and that the U.S. government was therefore obligated to ensure that everyone had access to health care.5 Puzzled Republicans scratched their heads and wondered why Democrats would use such an obviously flawed argument to defend their proposals, since healthcare was obviously not a right.6 So who was correct? They both were. The two sides didn’t understand each other because Democrats tend to believe in positive rights while Republicans generally do not.
In the debates about the health care bill, people on opposite sides were often talking past each other because they didn’t understand the opposing side’s view about rights. If everyone understood the difference between positive and negative rights would it eliminate political discord in our country? No, but it would at least lead to better-informed debate about the issues. So let’s learn about each side’s justifications for their ideas about rights.
Why do Democrats believe in positive rights?
One of the principal reasons to support the idea of positive rights is a concern about equality. Starting with the Progressive Era,7 during the Great Depression and World War II, and culminating in the Civil Rights movement, many Americans became more aware of inequities in our society such as segregation and wealth disparities. Many people became devoted to achieving greater equality and to the idea that government was the best tool to bring it about.
In 1944 President Franklin D. Roosevelt (a Democrat) proposed that the United States adopt a second bill of rights8 to the U.S. Constitution to guarantee individuals’ rights to employment (with a living wage), freedom from unfair competition and monopolies, housing, health care, education, and social security. Roosevelt died a little over a year later, and his second bill of rights was never seriously considered in Congress. But his ideas have held powerful sway over many people ever since.
People who believe in positive rights see recognition of positive rights as a natural progression and outgrowth from the negative rights recognized in the Eighteenth Century in the U.S. Bill of Rights. Starting in the 1970s legal theorists have talked about three generations of human rights corresponding to the ideals of the French Revolution: liberty, equality, and fraternity.9 The negative rights of the type listed in the Bill of Rights are the first generation (liberty); the second generation are positive rights to things like housing, employment, and healthcare (equality); and the third generation being things like group rights, rights to self determination, and rights to a healthy environment (fraternity). They see the recognition of positive rights as part of the natural progression from feudal medieval societies to modern democracies, the recognition of negative rights in the Bill of Rights was merely one step in that progression, not the end of it.
Why do Republicans reject the idea of positive rights?
Republicans and Libertarians generally reject the idea that people are entitled to positive rights. There are three reasons for this:
First, we live in a world of limited resources. This means that governments may often simply lack the resources to fulfill positive rights. They criticize the notion of positive rights as just being a way for people on the left to dress up their political goals using “rights” language in order to make their political goals seem more legitimate.
Second, the notion of a positive right creates a corresponding obligation for others to fulfill it. In other words, if I have right to housing, then that means that everyone else in society has an obligation to build me a house. Critics of positive rights argue that the only way for governments to guarantee people’s positive rights is to illegitimately force other people to act against their will to fulfill those purported rights. What if you don’t want to build a house for someone else? For the government to fulfill a person’s right to housing, it will need to take some of your property from you to pay for that other person’s house.10 Critics thus argue that positive rights lead to the erosion of negative rights and lead to an ever-larger government which must infringe individuals’ negative rights with greater and greater regularity. French philosopher Frederic Bastiat summarized this argument:
People not only want the law to be just; they also want it to be philanthropic. They are not satisfied that justice should guarantee to each citizen the free and inoffensive exercise of his faculties for his physical, intellectual, and moral development; they require of it that it should directly spread welfare, education, and morality throughout the country. This is the seductive aspect of socialism.
But, I repeat, these two functions of the law contradict each other. We must choose between them. A citizen cannot at the same time be free and not free. M. de Lamartine wrote me one day: “Your doctrine is only the half of my program; you have stopped at liberty; I go on to fraternity.” I answered him: “The second half of your program will destroy the first half.” And, in fact, it is quite impossible for me to separate the word “fraternity” from the word “voluntary.” It is quite impossible for me to conceive of fraternity as legally enforced, without liberty being legally destroyed, and justice being legally trampled underfoot.1112
Third, American conservatives also tend to be originalist13 in their views toward constitutional interpretation (IE they believe that the U.S. Constitution should be interpreted according to its meaning as originally understood at the time of its ratification). Originalists point to the text of the Bill of Rights and most other constitutional amendments dealing with rights which seem to only recognize negative rights. Many conservatives thus also reject the notion of positive rights as being antithetical to the American constitutional system.
You might be wondering where I stand on the positive rights debate. I’m not sure I agree with either side. I have real trouble accepting the idea that someone can have positive rights which entitle them to infringe other people’s individual rights. My tentative conclusion is that there are not positive rights, but that there are “positive obligations,” meaning that even though the poor shouldn’t have a legal right to take my property from me, I am morally obligated to freely use my property to help the poor.
Now that you’ve finished reading this, there are two things you should do: First, think about what conception of rights makes most sense to you and about how you should apply that conception to your political beliefs. Second, whenever you hear people disagreeing about politics (or, heaven forbid, you get in a political disagreement yourself), think about how these conceptions about rights influence each side’s argument, and try to have some more empathy for both side’s views.
Also, like I said at the beginning of this, there are other ways to approach the question of what is a right. I invite you to read and think about these other ways too (I included footnotes to the Wikipedia articles about each of those different approaches, and the Wikipedia articles have footnotes to other good sources to get you started).
5Like this Washington Post op-ed praising the Patient Protection and Affordable Care Act as “enshrine[ing] the principle that all Americans have the right to health care — an extraordinary achievement that will make this a better nation.”
That people think they have a “right” to health care just goes to show how little people think at all. “Rights” only make sense when they can be applied universally, without causing a “wrong” to someone else. You can have a right to own property, for example, because everyone can enjoy the right under the same terms and conditions. You can have a right to say what you like too…as long as everyone can say what he likes. But if you have the right to a cat scan, someone must have an obligation to make the machine…to put it in service…to run it…to maintain it…to offer it to you…and to interpret the results, etc. Who is this poor slave who has been shackled to your service?
Question: Well, then, why isn’t there any such thing as social justice?
Hayek: Because justice refers to rules of individual conduct. And no rules of the conduct of individuals can have the effect that the good things of life are distributed in a particular manner. No state of affairs as such is just or unjust: it is only when we assume that somebody is responsible for having brought it about. . . .
In the same sense, a spontaneously working market, where prices act as guides to action, cannot take account of what people in any sense need or deserve, because it creates a distribution which nobody has designed, and something which has not been designed, a mere state of affairs as such, cannot be just or unjust. And the idea that things ought to be designed in a ‘just’ manner means, in effect, that we must abandon the market and turn to a planned economy in which somebody decides how much each ought to have, and that means, of course, that we can only have it at the price of the complete abolition of personal liberty.