What American Exceptionalism Actually Means
A response to Justice Ginsburg on positive rights and the Constitution.
February 28, 2012 - 12:00 am
Negative rights do not come from government. They come from nature. They exist independent of government. They would continue to exist even if the government were to evaporate out of existence. The government’s job is to protect these natural rights, not to bestow them.
Of course, not everyone around the world views liberty in this manner. The South African Constitution provides “positive rights” like the “right to housing,” prompting Cass Sunstein — White House legal scholar and regulations czar — to call it “the most admirable constitution in the history of the world.” But suppose a South African citizen doesn’t have a home. They can claim a constitutional right to one. Therefore, the South African government can claim the authority to compel a South African homeowner to house the homeless. This not only destroys the homeowner’s rights, but it also destroys civil society in that it compels men and women, through the threat of government force, to lend a helping hand to one another. There should be no compulsion in brotherhood. It should be organic. A “positive rights” society undermines this aspect of human solidarity.
President Franklin D. Roosevelt once tried to create a Second Bill of Rights, full of positive rights: the right to a “decent home,” the right to a “decent living,” the right to “adequate food,” and so forth. A decent home, a decent living, and adequate food are all good things; things we should be free to pursue (what we Americans call “the pursuit of happiness”).
But all of these things, if guaranteed to us by the government as a positive right, would require the violation of someone else’s liberty. Who is to determine what is and isn’t a decent living? Who is to determine what is and isn’t adequate food? Employees would tell their bosses — consumers would tell providers — what they were getting wasn’t “decent” and “adequate” enough. They want more for free, they would say, and standing behind them would be armed “enforcers of rights” from the government. Such a society would devolve into a Hobbesian dystopia within months. It’d look a lot like Africa.
For instance, should a doctor be forced to perform surgery for free? Maybe he should do so of his own volition (and many doctors do, in fact, work pro bono for people without insurance). But if the doctor is compelled to work for free, he may go somewhere else. In short, the government cannot create anything; it can only allocate or “redistribute” it.
We are seeing the same debate today with the contraception controversy. The issue is not contraception but the forced financing of contraception. The government is violating a negative right (the religious freedom of Catholics) and imposing a positive right (mandated subsidization of contraception). These two violations of liberty are equal in consequence. Should the government force kosher delis to offer non-kosher ham on their menu? Of course not. Non-kosher customers have no positive right to ham sandwiches. As Sheldon Richman explains, “the fulfillment of positive rights requires that other people act affirmatively even if they don’t want to… if one person’s freedom depends on the infringement of someone else’s freedom, the first claim is illegitimate.” To contend otherwise is to oppose the principle of equality.
Frédéric Bastiat, the great 19th century French philosopher, once wrote of negative and positive rights like so: “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….It is quite impossible for me to conceive of fraternity as legally enforced, without liberty being legally destroyed, and justice being legally trampled underfoot.”
Positive rights aren’t “progressive.” They’re regressive. They’re the oldest idea in legal history. The negative liberties of the Founders — the intellectual revolution of 1776 — was real progress, an exceptional diversion from the normal trajectory of political theory. Our adherence to these principles, when and where we do adhere, is progressive and exceptional.
The Constitution does not enslave us to 18th century ethics. It does not forbid the future. The Constitution is a dictionary with which we should define, a prism through which we may view, individual liberty, and protect it, come what the future may bring. That the future may bring indefinite detention of American citizens and 30,000 surveillance drones over American skies only underscores the importance of the Constitution.
This is how American leaders ought to speak to the world. The world would appreciate such honesty, not recoil from it. Our exceptionalism is not genetic. We are an imperfect country. But our birth song, the Constitution, and our founding principles define liberty much differently than all other democratic republics throughout human history.