Positive & Negative Rights

Somebody I heard mentioned FDR's so-called "Second Bill of Rights" recently, something which I'd never heard of, so I decided to look into it. It was a list of rights, including right to a home, a job, medical care and others that was proposed by Roosevelt in 1944, but fortunately was never enacted. It's a rather distressing list, and a radical departure from the original Bill of Rights.

How it's such a radical departure can be summed up by the difference between "positive rights" and "negative rights." The first Bill of Rights constitutes mostly negative rights. These rights constrain the Federal Government so that it can't impinge on certain freedoms. In short, negative rights are the rights not to have something done to you.

Positive rights, on the other hand, are rights to have something. Since none of these things are things that simple fall from the sky in overabundance like manna from heaven (all of them have to be produced) this means if you lack something, then someone is obliged to provide it for you. For example, if you don't have a house, then if there is a right to a house, then somebody is forced to provide you with that house.

Sometimes there can be confusion about the positive and negative rights because it's not always clear in the way the rights are expressed whether it's positive or negative. For example, if I say that there is a right to property, I could construe it as both a positive or a negative right. As a negative right, it is a cornerstone of economic development, and simply means that if you own something, then no one can take it from you. For example, if I have a home, no one can seize the home without my consent. We could construe right to property as a positive right also if we say that if I don't have something, then someone is forced to give me something. So, if I own no home, then someone has to build me a home, or give me a home that someone already owns.

In the area of freedom of speech, there is often much confusion of the two. The Bill of Rights only guarantees a negative right to speak. This means that if I have my own venue in which to voice my views, no one can shut it down because they don't like what I say. For example, we read today that in Venezuela, Hugo Chavez has shut down 34 radio stations. These various radio operators owned the equipment and materials, the staff and the radio frequency to project their content at their own expense. Chavez decided he didn't like what they said, so he shut them down. This genuinely infringes on the negative right to speech. But people sometimes confuse freedom of speech for a positive right, as if someone is required to provide them with a venue. For example, if tv stations were required to provide every person with 5 minutes per year to express their views, then this would be a positive right. This would be a sacrifice the tv stations would be forced to make. When it is construed as simply a negative right, no one is impinged upon.

The situation can get complicated when we deal with public protests, which use as their venue public roads, sidewalks, and parks. Since these venues are supposed to be owned by everyone (or no one, depending on your perspective) then the protesters thus own them and can use them to protest, but this might conflict with what other members of the public might want to do with the roads, sidewalks or parks. In practice, the public property is owned by a government and it decides who gets to use the space. Nonetheless, this can lead to all types of controversy. For example, when in 1999 the Brooklyn Museum showed the controversial exhibition "Sensation," mayor Rudolph Giuliani tried to deny them funding, which led to charges of censorship and restricting freedom of speech because the museum is a public museum receiving public support. On the other hand, when in 1933 Rockefeller decided to remove a Mural by Diego Rivera containing the face of Vladimir Lenin, the issue is less controversial because Rockefeller owned the space and was commissioning the work from Rivera. Rockefeller was not being forced to give Rivera a venue, but the public is in a sense being forced to give some group access to public venues.

Returning to the Bill of Rights the only positive rights in the Bill of Rights, are rights to a trial, which is to say that if the government decides to bring criminal charges against you, they are required to provide you with a fair trial, and citizens are required to serve on the jury. All the other numerous rights of the Bill of Rights are negative rights.

In general, as we look at traditional law through history we'll see a similar ratio of positive to negative rights, with most legal rights restraining people from doing bad things, rather than guaranteeing that they get good things. For example, in the Ten Commandments, followers are asked to worship the one God, keep the sabbath, and respect their parents. The rest is a list of things they can't do, mostly things they can't do to their fellow humans. Similarly, the Code of Hammurabi, also lays down punishment for doing various bad things, primarily setting down restraints on the citizenry, as well as implicitly restraining the monarchs, since they must too abide by these laws. As we go further along in history, the negative rights only grow, and the restrictions on what the government can do to its citizens increase, from the Magna Carta, to The Declaration of the Rights of Man, to the US Bill of Rights.

This is all rather for the best since by restraining people from doing bad things, this brings about more good. Negative rights, restricting bad things, are thus ethically good. One is tempted to think that this similarly applies to positive rights. It's nice to see people getting all types of good things like a home, a job and medical care. But that's until you realize that, as I've said, someone is forced to give them these things. If you don't have a job, then someone is forced to provide you with work and pay your salary.

Thus, while it is clear that negative rights that restrain people from doing a bad thing are ethically good, it is not clear whether positive rights can ever be good. Even if it's quite clear cut to say that if someone doesn't have a job, it's good to give them one voluntarily out of sense of charity, it's not so clear cut when a person is forced to involuntarily give it to them. To broaden the question a bit more, we might ask, "can involuntary charity ever be a good?"

I'd say no. In William Graham Sumner's "Forgotten Man" parable he makes a similar point. Two persons see the sad plight of some third person, but instead of helping him, they force some fourth person to help him. This fourth person is the forgotten man. If some person crusading for home ownership notices that there are people who want to own a home but can't, why would that person petition the government to force taxpayers to give them homes. Why doesn't the crusader simply help them himself? Give them money, start a charity, raise money from others, organize groups to build cheap homes. There are many options.

Positive rights also have a tendency to clash with many critical negative rights. For example the right to a home easily clashes with property rights, if homes have to be taken from others.

Not to mention that positive rights frequently set up some perverse incentives. Why bother to work hard to earn the money for a home, if you can just work less hard, and get someone else to buy it for you.

Then there's that whole problem of force in general. Force is bad, and really can only be justified if we see some countervailing evil that it's preventing.

In short, the moral integrity of the first Bill of Rights certainly doesn't translate to the so-called Second Bill of Rights. The ethical baseness of forcing people to provide for others, exposes the baseness of the Second Bill of Rights, and is why I say it is so distressing.