and then I hope to stop. Steve Bainbridge writes:
I locate the term “positive rights” in the context in which it was typically used in Cold War debates between Western democracies and the Socialist bloc. The latter typically defended their abysmal human rights records by saying that their system provide certain positive (a.k.a. economic a.k.a. security) rights that the Western system did not. Hence, for example, I understand the term “positive right” to refer to a specific type of claim, such as:
“You have a right to a job. If you cannot find one, the state will use its taxing and spending powers to create a public works job for you or its regulatory powers to induce some private actor to hire you.”
As the always useful Wikipedia explains:
Many positive rights are economic in nature: they involve the rights-holder being assured of the provision of some economic good such as housing, a job, a pension, or medicine. Under most systems of social democracy, these are provided under some manner of public welfare system, in which public funds are used to establish public housing, works programs, social security, and the like.
So defined, it seems that part of our disagreement is semantic. As I understand your definition of positive rights, you are using that term in a far broader way than the I am.
As I understand your argument, it has two main claims: (1) Enforcement of negative rights has a positive component, in the sense that the government’s enforcement of such rights confers a benefit on the claimant of said right. (2) Enforcement of negative liberties can constrain the liberties of others. Some of the more radical libertarians around the blogosphere took issue with you on that one, but I am prepared to concede both points. Indeed, I already conceded at least the first point in my earlier posts (albeit somewhat begrudgingly).
Accordingly, I do not deny that both the Constitution and the larger legal system confer some positive rights in the broad sense you have defined them. I still maintain, however, that many of those positive rights are procedural or process-oriented (such as the right to vote). Others involve the use of government power to facilitate private ordering. Still others entail government provision of public goods.
In any event, the key issue for me is whether the validity of positive rights as I have defined them follows from your argument. In other words, does the fact that the government provides some positive benefits mean that government also must (or, at least, should) provide the positive rights William Saletan posited? Do you have a right for the government to use its taxing, spending, and/or regulatory powers to confer upon you a private good? Do you have a positive right to a job?
In an earlier post, I quoted two leading judicial decisions rejecting claims of such positive rights as being foreign to the American system of liberty. . . .
This is the sense in which Reagan understood the concept of liberty. It is also the conception of liberty that I set out to defend in my TCS column. And, my friend, I suspect it is a conception of liberty that you find congenial as well. . . .
Steve and I are indeed not far apart. I think he and I would equally reject most claims of positive rights. And it looks like he and I now agree that conservatives and many moderate libertarians would indeed support the government providing some positive rights under a broad definition (which, as my earlier post quoting Black’s Law Dictionary suggests, is the common definition) — chiefly the very important benefits of contract enforcement and police protection.
I also think my definition is the clearer and better defined one. Note that the chief definitions Steve starts with are definitions by example, which makes it hard to determine their boundaries. And his follow-up, which is that positive rights are benefits that aren’t merely enforcement of private ordering or provision of public goods doesn’t fit neatly into the positive/negative dichotomy: There’s no reason why an entitlement to government provision of public goods is somehow “negative” rather than “positive” — I’d say that it’s generally a positive right, but a justifiable one.
I do think that not all other positive rights are “foreign to the American system of liberty” — the chief example is a positive right to government-funded and government-supplied education, which has been part of the American tradition since the 1800s, and is part of many state constitutions (though not the federal Constitution). Even many conservatives would support some such positive right, though many of them might prefer government funding to government provision of the actual service. (I suppose that Steve might argue that the right to an education is under his framework not a “positive right” because broad education is a public good — but that would just show, I think, the oddness of his definition of “positive right.”)
But more generally, I agree with Steve that the government should provide relatively few benefits to citizens. I just think that we need to acknowledge that it does and should provide some benefits, including some positive rights (rights “entitling a person to have another [in this instance, the government] do some act for the benefit of the person entitled”). The debate should then be over the scope of those benefits — and that is a debate on which Steve and I are indeed probably quite close together.
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