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IN FOCUS:
Positive Rights, the Constitution
and Conservatives & Moderate Libertarians

Eugene Volokh, The Volokh Conspiracy

Some recent conversations I've heard about "positive rights" and American legal traditions made me want to repeat something I've written before: While it's true that the U.S. Constitution lacks some of the "positive rights" that people sometimes discuss under that label (e.g., a right to shelter, to medical care, to a subsistence income, and so on), it does secure other positive rights; and indeed, some positive rights are a longstanding feature of American legal traditions. I think such rights should remain limited, but I think one shouldn't deny that they exist, and are in some measure secured by the U.S. Constitution (and state constitutions).

First, some definitions. The term "right" is a broad one, which encompasses many different kinds of entitlement.

1. Rights can be against the government (e.g., the freedom of speech or the right to keep and bear arms) or against private entities (e.g., the right to be free from trespass, negligent or intentional injury, or defamation).

2. Rights can be constitutional (e.g., the freedom of speech), statutory (e.g., copyright, which is authorized by the constitution but actually secured by Congressional statute, or freedom from many kinds of private discrimination), common-law (e.g., historically, rights to be free from private trespasses, negligence, defamation, breach of contract, etc.), or contractual, depending on which source of law secures those rights.

3. Rights can belong to individuals, associations of individuals (churches, partnerships, corporations), or governments (especially when the government's right is a right asserted against other governments). Some people claim that governments can only have "powers," not "rights," but that's not the way American legal usage has operated (see here for sources).

4. Rights are generally judicially enforceable, but they may also be broadly agreed on as entitlements even when the courts don't step in. For instance, most people would say that everyone has a right to police protection, even though such a right may be unenforceable. We think the government ought to provide that protection (subject to manpower constraints, and possible police and prosecutorial discretion not to enforce certain relatively petty laws). If the government fails to provide such protection, we would think it's doing something wrong, and the political process would often correct this.

So this is something of a right (especially when the judgment is about the government's proper role, and not just judicially enforceability). Likewise, the constitutional command that Congress protect each State from invasion is probably not judicially enforceable; but one can characterize this as a right of a state.

5. Rights can be negative rights, which is to say (quoting Black's Law Dictionary), "entitling a person to have another refrain from doing an act that might harm the person entitled." Some examples: Free speech is a negative constitutional right against the government. My property rights in my land are a negative constitutional right against the government and a negative common-law/statutory right against private entities.

6. Rights can be positive rights, which is to say "entitling a person to have another do some act for the benefit of the person entitled." Some examples: The right to demand that the government enforce your contracts is a positive constitutional right against the government). The right to public education under those state constitutions that secure such a right is a positive state constitutional right against the government. The right to get money under an annuity you've bought is a positive contractual right against a private entity. A child's right to support from his parents is a positive common-law and statutory right against a private entity.

7. Rights can be equality rights, which is to say rights to be treated the same way that others who differ only in certain particulars are treated. Some examples: The right not to be discriminated in government hiring is a constitutional and statutory equality right against the government. The right not to be discriminated against in private hiring is a statutory equality right against a private party. Such an equality right may end up being a right to get a certain benefit, but only when the government or the private party is already giving the benefit to others.

8. Rights can also be rights to participation in government functions, such as the right to vote (secured by various state and federal statutory provisions, and in some measure by some state and federal constitutional guarantees). These are in a sense positive rights, but not quite the same as other rights.

9. Rights can also be mixtures, or look like one while actually being the other. The right to have a criminal defense lawyer appointed for you (if you're too poor to afford one) may look like a constitutional positive right, but I think it's really a constitutional negative right -- it's really the right not to be deprived of your liberty unless you've been convicted through a process in which a lawyer has been appointed for you. Similarly, your rights in your property consist of (1) a negative right against private people who would trespass on it, (2) a more limited negative right against the government, preventing it from trespassing on the property unless it takes the property for a public purpose and pays just compensation, and (3) a positive right against the government to protect your property via the court system and the police.

10. The Constitution and positive rights: As I've mentioned above, the federal Constitution does secure a few positive rights. The clearest example is the Contracts Clause, which bars states from impairing the obligation of contracts, and thus mandates states to provide a forum for enforcing contracts. Under this Clause, people have a right to demand that the government enforce their contracts. (The Court has provided only weak protection for this right, which I think is a mistake, but the right still is a positive right.)

Likewise, the Takings Clause bars the government from interfering with my right to exclude others from my property. If I own some wooded land, the government can't just say "You must allow everyone onto the land." That would be a taking of my private property and making it public property.

I think it follows that the government also can't simply refuse to enforce trespass laws, for instance by saying "The police and the courts shall not enforce civil or criminal trespass laws against those who trespass on others' woodland property, or who tear down fences protecting others' woodland property." Such a deprivation of legal protection would be close to legally destroying my property right. (It wouldn't be exactly the same, because it would still leave me with some negative right to be free of legal punishment for defending my property through force.) I think that such a denial of property protection probably would violate the Takings Clause.

The right of holders of United States debt to be paid back is likely a positive constitutional right, too. See Article VI, "All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation," and the Fourteenth Amendment, "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."

The Seventh Amendment might also be seen as securing a positive right to have lawsuits that one brings in federal court be decided by a jury, so long as one is seeking common-law remedies and asking for more than $20. This is a closer call, since Congress could withdraw federal jurisdiction over many and maybe all cases seeking such remedies. But so long as such jurisdiction is available, plaintiffs are entitled to have a jury convened to hear the case; and the assumption behind the Amendment is that plaintiffs indeed have a positive right to sue, whether in federal court or in state court. (The defendant's right to a civil jury is, I think, a negative right not to have to pay damages without having a jury decide the matter.)

And all these positive rights, I think -- the Contracts Clause, the Takings Clause, the Debt Clauses, and the Seventh Amendment -- capture a broader point. Civilized life requires that the government positively protect property, contracts, and persons, and while the political process must have a great deal of flexibility in deciding the scope of such protection, some amount of such protection is constitutionally required.

11. Many state constitutions provide more positive rights -- two prominent examples are the right to sue in court, and in many constitutions the right to a public education.

12. Conservatives and libertarians and positive rights: This suggests that conservatives and moderate libertarians (though not anarcho-libertarians) do and should indeed endorse positive rights, including positive constitutional rights.

Consider the various agencies of government, and the demands that you can place on them.

You can go to the police station and say "Come eject these people who are trespassing on my property." That's generally seen by conservatives as a right, even if not always a legally enforceable one. It's the positive right to get (and without paying for it, except through taxes) a certain government service.

You can go to court and say "Issue a judgment awarding me damages for my ex-partner's breach of contract." That is a legally enforceable right, secured both by common-law and by the federal constitution. It's the positive right to get (and these days without paying for the entirety of the court's expenses) a certain government service.

You can go to the government and say "Educate my child for free." That is a legally enforceable right, secured by state statutes and many state constitutions. It's the positive right to get a certain government service -- one that's more controversial among many libertarians and some conservatives, though also one that's broadly accepted by many conservatives and some moderate libertarians (though they might prefer that the right be to a voucher redeemable at a wide range of schools).

You can go to the government and say "Give me medical care." That too would be a positive right to get a certain government service, though one that is probably opposed (except perhaps as to a few services, especially ones having to do with communicable diseases) by many hard-core conservatives and libertarians.

All of these are claims of positive right. Indeed, one can distinguish them on various grounds. But none of these distinctions change the fact that

1. a right to get the government to enforce your contracts (secured by the Contracts Clause and by the common law and statutes of all states),

2. a right to get the government to protect your property by awarding you injunctions and damages against trespassers (secured by the common law and statutes of all states, and I think by the Takings Clause),

3. a right to get the government to protect your property by sending out the police or the sheriff to eject trespassers (accepted as a matter of practice everywhere, even where it's not legally enforceable through a lawsuit against the police department, and I suspect actually legally enforceable in many states), and

4. a right to get the government to protect you by sending out the police when you call for them (accepted as a matter of practice everywhere, subject to manpower constraints and other limitations, though generally not legally enforceable)

are all positive rights -- entitlements to have government act for one's benefit (though indirectly also for the benefit of society) -- that conservatives and moderate libertarians would generally endorse.

Protection of private property and freedom of contract is a core function of government. Conservatives are right to stress its importance. But it is not the antithesis of positive rights against the government. Rather, it necessarily involves such positive rights (at least in the view of conservatives and most moderate libertarians, and in the American legal tradition of protecting property and contract).

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