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Chapter One
All Rights Are Positive
In Roe v. Wade , the Supreme Court ruled that the U.S. Constitution protects a woman's right to have an abortion. A few years later, complications arose: does the Constitution also mandate public funding of abortions? Does it require the government to defray the costs of nontherapeutic abortions if the government is already subsidizing childbirths? In Maher v. Roe , the Court concluded that the Constitution does no such thing. A denial of Medicaid payments, it explained, "places no obstacles--absolute or otherwise--in the pregnant woman's path to an abortion." This is because "an indigent woman who desires an abortion suffers no disadvantage as a consequence of the state's decision to fund childbirth," for the government is in no way responsible for her penury. According to the Court, a state legislature's refusal to foot this particular bill, while it may effectively deny safe abortion to a penniless woman, in no way violates that woman's "right" to choose.
To reconcile its holding in Roe with that in Maher , the Court drew a crucial distinction. It said that "there is a basic difference between direct state interference with a protected activity and state encouragement of an alternative." Apparently, the Constitution can, with unimpeachable consistency, first prohibit the government from intruding and afterward permit the government to withhold support. A woman is constitutionally protected from impermissible restrictions by state agencies, the Court went on to explain. But her freedom of choice does not carry with it "a constitutional entitlement to the financial resources to avail herself of the full range of protected choices." Protection from a burden is one thing, entitlement to a benefit is another. And indeed such a distinction between a liberty and a subsidy sounds like common sense. But is it supportable? On what grounds?
Behind the distinction adduced by the Court lies an unspoken premise: immunity from invasion by the state involves no significant entitlement to financial resources. Theorists who share this assumption see constitutional rights as shields established solely to protect vulnerable individuals from arbitrary imprisonment, intrusions on contractual freedom, takings of property, and other forms of governmental abuse. Personal liberty can be secured, they typically argue, simply by limiting the government's interference with freedom of action and association. Individual freedom requires not governmental performance but only governmental forbearance. Construed along these lines, rights resemble "walls against the state," embodying the assurance that Congress "shall make no laws" restricting private liberty or imposing excessive burdens. By dividing government against itself, the Constitution prevents public authorities from intruding or abridging or infringing. The limited government that results leaves plenty of room for private individuals to mind their own business, to breathe and act freely in unregulated social realms. Such immunity from government meddling is even said to be the essence of constitutionalism. And while action is costly, inaction is relatively cheap, or perhaps free. How could anyone confuse the right to noninterference by public authorities with monetary claims upon the public treasury?
The Futility of Dichotomy
The opposition between two fundamentally different sorts of claim--between "negative rights" such as those granted in Roe and "positive rights" such as those denied in Maher --is quite familiar. But it is anything but self-evident. It does not appear anywhere in the Constitution, for one thing. It was wholly unknown to the American framers. So how does it arise? It has profoundly shaped the legal landscape of the United States, but does it provide a cogent classification of different kinds of rights? Does it make sense?
Without some simplifying scheme, admittedly, the plethora of rights entrenched in American law are hard to think about in an orderly fashion. U.S. citizens successfully claim such a cornucopia of rights, and these rights are so palpably diverse, that generalization about them sometimes seems beyond our reach. How should we think systematically about rights so disparate as the right to strike and freedom of conscience, the right to sue journalists for libel and the right to be free from unreasonable searches and seizures? And how should the right to vote be compared to the right to bequeath one's property, or the right of self-defense to freedom of the press? What do these highly variegated claims have in common? And how can we classify or subdivide, in a rational way, the rights protected and enforced in the United States today?
Even a selective list of the everyday rights of ordinary Americans will make our embarrassment of riches clear. It is not easy to arrange in useful categories such strikingly diverse claims as the right to an abortion, the right to practice one's profession, the right to terminate an agreement, the right to be considered for parole, consumer rights, parental rights, the right to submit evidence before a review board, the right to testify in court, and the right against self-incrimination. Under what basic headings should we classify the right to change one's name, the right of private security guards to make arrests, the exclusive right to decide who publishes (copyright), stock-purchase rights, the right to recover money damages for defamation, tenants' and landlords' rights, the right to smoke the dried leaves of some (but not all) plants, and the right to judicial review of the rulings of administrative agencies? Are there purposes for which it is helpful to sort into two basic groupings--say, the positive and the negative--the right of legislative initiative, the right not to be denied a job because of sexual preference, the right to return to a job after taking unpaid maternity leave, the right to interstate travel, freedom of testation, and the right to inform authorities of a violation of the law? And what about hunting and fishing rights, the right to keep and bear arms, a landowner's right to abate nuisances upon his land, mineral rights, the right to present testimony about the victim of a crime in order to influence the sentencing of a perpetrator, pension rights, the right to give to charity tax-free, the right to recover a debt, the right to run for office, the right to use extra-judicial arbitration methods, and the right to view obscene materials at home? And how should we classify visitation rights in prison, the right to dispose of one's property as one wishes, the right of an expelled high school student to a hearing, the right to marry and divorce, the right of first refusal, the right to be reimbursed for overpayments, the right to the presence and advice of an attorney before custodial interrogation by law enforcement authorities, the right to emigrate, the right to receive counseling about birth control, and the right to use contraceptives?
This ramshackle inventory of only some of the everyday rights of ordinary Americans suggests the magnitude of the challenge facing anyone who wants to map the sprawling terrain of our individual liberties. Even if we set aside archaic-sounding anomalies, such as the "right of rebellion," we will have a tough time organizing into two mutually exclusive and jointly exhaustive groups the swarm of claims and counterclaims that help structure the commonplace expectations and routine behavior of U.S. citizens today.
The Lure of Dichotomy
True, grand efforts at simplification cannot be impeded. For some purposes, moreover, simplification can be useful; the question is whether the relevant simplification helps illuminate reality. Among recent attempts to impose an easily grasped order on the multiplicity of basic rights invoked and enforced in this country, the one to which the Supreme Court, for good or ill, has lent the weight of its authority has been far and away the most influential. In classrooms and on editorial pages, in judicial opinions and before congressional committees, a distinction is routinely drawn between negative rights and positive rights, or (what is often perceived to be the same thing) between liberties and subsidies. The distinction gains its initial plausibility, perhaps, because it seems to track the politically more familiar contrast between small government and big government.
This dichotomy has taken deep root in common thought and expression. Those Americans who wish to be left alone prize their immunities from public interference, it is said, while those who wish to be taken care of seek entitlements to public aid. Negative rights ban and exclude government; positive ones invite and demand government. The former require the hobbling of public officials, while the latter require their affirmative intervention. Negative rights typically protect liberty; positive rights typically promote equality. The former shield a private realm, whereas the latter reallocate tax dollars. The former are privative or obstructionist, while the latter are charitable and contributory. If negative rights shelter us from the government, then positive rights grant us services by the government. The former rights include the rights of property and contract and, of course, freedom from being tortured by the police; the latter encompass rights to food stamps, subsidized housing, and minimal welfare payments.
This storybook distinction between immunities and entitlements has become so influential, even authoritative, that the Supreme Court was able to assume its validity without serious examination or even argument. Neither its relative historical novelty nor its palpable inadequacy has weakened its hold on academic analysis or the public imagination. But wherein lies its seemingly irresistible appeal?
The attraction of this categorization stems partly from the moral warning or moral promise it is believed to convey. Conservative devotees of the positive/negative rights distinction routinely urge, for instance, that welfare rights are potentially infantilizing and exercised on the basis of resources forked out free of charge by the government. Classical liberal rights, they add by way of contrast, are exercised autonomously, American-style, by hardy and self-sufficient individuals who spurn paternalism and government handouts.
Critics of the regulatory-welfare state also interpret the immunities/entitlements dichotomy in the light of a simplified narrative of historical betrayal or decline. Negative rights, they say, were the first liberties to be established, having been wisely institutionalized at the Founding, if not earlier, whereas positive rights were added afterward, in an ill-considered twentieth-century deviation from the original understanding. When the United States was first created, the protection and enforcement of basic rights was limited to guarantees against tyrannical and corrupt government. Only much later--with the New Deal, the Great Society, and the Warren Court--were supererogatory entitlements to public assistance introduced. Instead of protecting us from government, this conservative story continues, welfare rights make people dependent on government, thus eroding "real freedom" in two different ways: by unfairly confiscating the private assets of the wealthy and imprudently weakening the self-sufficiency of the poor. By profligately adding new positive rights to old negative ones, modern liberals such as Franklin Delano Roosevelt and Lyndon Johnson not only betrayed the Founders' conception of freedom, but also summoned into existence a whole flock of impoverished and dependent citizens who now, alas, must be elbowed off the government soup wagon.
This narrative of decline is recounted with palpable earnestness by political conservatives. American progressives could not disagree more. Nevertheless, they too frequently assume that there are basically two kinds of rights, the positive and the negative. They merely redescribe the shift from immunities to entitlements as a progressive tale of evolutionary improvement and moral growth. While conservatives deplore the emergence of taxpayer-subsidized welfare rights, progressives applaud the rise of positive guarantees--interpreting this as a sign of political learning and an improved understanding of the requirements of justice. Charitable impulses have finally come to the fore and been codified into law. New Deal and Great Society America broke with the narrow principles that served the interests of property holders and big business to the detriment of the majority. Viewed with hindsight, negative rights were limited or perhaps even cruel. The eventual rise of positive rights registered a novel appreciation of the need to supplement non-interference with public provision.
One and the same distinction, in effect, obligingly serves two contrary outlooks. While American liberals typically associate rights of property and contract with immoral egoism, American conservatives link private liberties to moral autonomy. Progressives trace entitlements to generous solidarity, while libertarian conservatives connect welfare handouts to sickly dependency. Opposite evaluations are attached, but the conceptual skeleton is the same. Although politically nonpartisan, the negative/positive rights dichotomy is by no means politically innocent, shaping as it does some of our most important debates. It provides the theoretical underpinnings for both attacks on and defenses of the regulatory-welfare state. The negative/positive polarity, we might even say, furnishes a common language within which welfare-state liberals and libertarian conservatives can understand each other and trade abuse.
But who is correct? Are property rights instruments of selfish egoism or sources of personal autonomy? Do welfare rights (including those to medical care or employment training) express solidarity and fellow-feeling or erode initiative and inculcate dependency? Should individuals be protected only from government or also by government? These questions encapsulate much of the American rights debate today. Naturally, any dichotomy that appeals simultaneously to both the Left and the Right is likely to be hard to criticize and immensely difficult to slough off. Taken-for-grantedness, however, does not mean that the distinction is justifiable either descriptively or normatively. Upon inspection, the contrast between two fundamental sorts of rights is more elusive than we might have expected, and much less clear and simple than our Supreme Court has assumed. In fact, it turns out to be based on fundamental confusions, both theoretical and empirical. But if the distinction itself is flawed, then perhaps neither side of the American rights debate is on solid ground.
The Cost of Remedies
"Where there is a right, there is a remedy" is a classical legal maxim. Individuals enjoy rights, in a legal as opposed to a moral sense, only if the wrongs they suffer are fairly and predictably redressed by their government. This simple point goes a long way toward disclosing the inadequacy of the negative rights/positive rights distinction. What it shows is that all legally enforced rights are necessarily positive rights.
Rights are costly because remedies are costly. Enforcement is expensive, especially uniform and fair enforcement; and legal rights are hollow to the extent that they remain unenforced. Formulated differently, almost every right implies a correlative duty, and duties are taken seriously only when dereliction is punished by the public power drawing on the public purse. There are no legally enforceable rights in the absence of legally enforceable duties, which is why law can be permissive only by being simultaneously obligatory. That is to say, personal liberty cannot be secured merely by limiting government interference with freedom of action and association. No right is simply a right to be left alone by public officials. All rights are claims to an affirmative governmental response. All rights, descriptively speaking, amount to entitlements defined and safeguarded by law. A cease-and-desist order handed down by a judge whose injunctions are regularly obeyed is a good example of government "intrusion" for the sake of individual liberty. But government is involved at an even more fundamental level when legislatures and courts define the rights that such judges protect. Every thou-shalt-not, to whomever it is addressed, implies both an affirmative grant of right by the state and a legitimate request for assistance addressed to an agent of the state.
If rights were merely immunities from public interference, the highest virtue of government (so far as the exercise of rights was concerned) would be paralysis or disability. But a disabled state cannot protect personal liberties, even those that seem wholly "negative," such as the right against being tortured by police officers and prison guards. A state that cannot arrange prompt visits to jails and prisons by taxpayer-salaried doctors, prepared to submit credible evidence at trial, cannot effectively protect the incarcerated against tortures and beatings. All rights are costly because all rights presuppose taxpayer funding of effective supervisory machinery for monitoring and enforcement.
The most familiar government monitors of wrongs and enforcers of rights are the courts themselves. Indeed, the notion that rights are basically "walls against the state" often rests upon the confused belief that the judiciary is not a branch of government at all, that judges (who exercise jurisdiction over police-officers, executive agencies, legislatures, and other judges) are not civil servants living off government salaries. But American courts are "ordained and established" by government; they are part and parcel of the state. Judicial accessibility and openness to appeal are crowning achievements of liberal state-building. And their operating expenses are paid by tax revenues funneled successfully to the court and its officers; the judiciary on its own is helpless to extract those revenues. Federal judges in the United States have lifetime tenure, and they are quite free from the supervisory authority of the public prosecutor. But no well-functioning judiciary is financially independent. No court system can operate in a budgetary vacuum. No court can function without receiving regular injections of taxpayers' dollars to finance its efforts to discipline public or private violators of rights, and when those dollars are not forthcoming, rights cannot be vindicated. To the extent that rights enforcement depends upon judicial vigilance, rights cost, at a minimum, whatever it costs to recruit, train, supply, pay, and (in turn) monitor the judicial custodians of our basic rights.
When the holder of a legal right is wronged, he may usually petition a taxpayer-salaried judge for relief. To obtain a remedy, which is a form of government action, the wronged party exercises his right to use the publicly financed system of litigation, which must be kept readily available for this purpose. To have a right, it has been said, is always to be a potential plaintiff or appellant. Rights can be retrenched, as a consequence, by making it harder for complainants to seek vindication before a judge. One way to do this is to deprive courts of their operating funds. To claim a right successfully, by contrast, is to set in motion the coercive and corrective machinery of public authority. This machinery is expensive to operate, and the taxpayer must defray the costs. That is one of the senses in which even apparently negative rights are, in actuality, state-provided benefits.
To protect rights, judges exact obedience. Courts issue injunctions to restrain the unlawful infringement of patents or to force realty companies to rent to African Americans under the Fair Housing Act of 1968. To insure freedom of information, courts order federal agencies to provide information requested by the public. Liberty, in such cases, hinges upon authority. When judicial oversight is lax, rights are correspondingly flimsy or elusive. American immigration authorities routinely discriminate on the basis of physical disability, political opinion, and national origin. To remark that aliens trying to enter the United States have few legal rights is to observe that, under American law, they have little access to publicly funded judicial remedies.
But courts are not the only tax-funded government bodies to deliver remedies. For instance, consumer protection bureaus in various states regularly receive complaints and act to protect consumers' rights by penalizing the unfair and deceptive practices of retailers. At the federal level, the Consumer Product Safety Commission spent $41 million in 1996 identifying and analyzing hazardous products and enforcing manufacturer compliance with federal standards. Many other government agencies serve similar rights-enforcing functions. The Department of Justice itself spent $64 million on "civil rights matters" in 1996. The National Labor Relations Board (NLRB), which cost the taxpayer $170 million in 1996, protects the rights of workers by imposing obligations on management. The Occupational Safety and Health Administration (OSHA)--$306 million expended in 1996--defends the rights of workers by obliging employers to provide a safe and healthy workplace. The Equal Employment Opportunity Commission (EEOC), with a 1996 budget of $233 million, safeguards the rights of employees and job seekers by obliging employers not to discriminate in hiring, firing, promotion, and transfers. In every one of these cases, the cost of enforcing rights can be chalked up to the price of enforcing their correlative duties.
To be sure, it is possible to complain that several or all of these agencies are wasteful or too expensive, or even that some of them should be abolished. But while no particular set of institutions is ideal, some substantial governmental machinery for providing remedies must remain, for rights have nothing to do with autonomy from public authority. Because the wholly private and self-sufficient individual has no rights, it is implausible to be "for rights" and "against government."
A few more examples will help clarify this point. The right to bequeath one's private property to heirs of one's choice--"the right to speak after death"--is obviously a power that no individual testator can exercise autonomously, without the active assistance of state agencies. (Proceedings for construing and establishing the validity of wills, and arbitrating the disputes to which wills sometimes give rise, are managed by probate courts, which are funded by taxpayers, not merely by user fees.) And the right to make an enforceable will is perfectly typical, for no rightsholder is autonomous. What would the right to marry mean without public institutions, which must spend taxpayers' money to define and create the institution of marriage? What would the right to child support mean in practice if state agencies could not successfully fulfill requests to locate parents or deduct unpaid support from federal and state tax refunds? What would the copyrights owned by private American entertainment industries be worth in, say, China, if the U.S. government did not put its official weight behind their enforcement?
Something similar can be said about the right to private property. American law protects the property rights of owners not by leaving them alone but by coercively excluding nonowners (say, the homeless) who might otherwise be sorely tempted to trespass. Every creditor has a right to demand that the debtor repay his debt; in practice, this means that the creditor can instigate a two-party judicial procedure against a defaulting debtor in which a delict is ascertained and a sanction imposed. And he can also count on the sheriff to "levy upon" the personal property of the debtor, to sell it, and then to pay the delinquent's debts from the proceeds. The property rights of creditors, like the property rights of landowners, would be empty words without such positive actions by publicly salaried officials.
The financing of basic rights through tax revenues helps us see clearly that rights are public goods: taxpayer-funded and government-managed social services designed to improve collective and individual well-being. All rights are positive rights.
Copyright © 1999 Stephen Holmes and Cass R. Sunstein. All rights reserved.
