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Opening Arguments

They say yes, we say no

Want to wade into a thorough examination of positive rights vs. negative rights? Of course you do. Here's the case for positive rights, from a salon.com piece by Michael Lind:

But the conservative theory of rights does not do justice to the pragmatism and flexibility of the Lockean natural rights theory held by America’s Founders. According to that theory, natural rights are either inalienable, such as the rights to life and liberty (you cannot legitimately sell yourself into slavery), or alienable (individuals may alienate part or all of their natural right to self-defense, by forming a community and pooling the coercive power to enforce laws). In addition to these few, broad natural rights, there are potentially an infinite number of subsidiary rights that can be created by laws or constitutions. While natural rights are universal, the subsidiary or instrumental rights needed to promote them necessarily vary, in different times and places. For example, the right to life is universal, but the right to a free press is a subsidiary right that would be pointless in a preliterate tribal society.

Lockean natural rights theory, then, is quite flexible, particularly when it comes to lesser rights or entitlements that a sovereign people may choose to create to better achieve fundamental natural rights. Conservatives, however, typically fail to make the distinction between timeless natural rights and subsidiary rights that are time-bound and context-bound.

And here's the response extolling negative rights from one of those distinction-impaired conservatives, Stephen Kruiser:

The negative/positive rights debate is brilliantly explored by Richard A. Epstein in his book Mortal Peril. He begins with a general discussion but his focus is on American health care. He points out that the positive rights frenzy contains “certain remnants of a discredited socialism” and that “…the protection of these newly minted positive rights invests government at all levels with vast powers to tax, to regulate, and to hire and fire the very individuals whose rights it is duty-bound to protect.”

The story, of course, is one we’ve seen over and over. The government continues to bloat itself as the social welfare state grows and in the process more rights are trampled upon than created.

The list of subsidiary rights quoted from an FDR speech in this post reads like a sad grown-up’s letter to Santa Claus.

These subsidiary rights are all justified under the “pursuit of happiness” umbrella. So we’re back to the old hippie, “If it feels good, do it” mantra and they want us stuck with the bill for the bongs and the penicillin shots.

As Epstein notes, the naive notion that we have a right to “all the good things in the world” only leads to programs that “…expand with time beyond our worst fears until they devour resources that by any sane reckoning are better spent on other human needs.”

But, hey, free stuff!

I think Lind is guilty of a fundamental misunderstanding (or perhaps a deliberate mischaracterization) of the values this country was founded on. Governments are created to protect the fundamental rights we are born with, not create and dispense new ones. What he calls "subsidiary fights" are more properly called "privileges," which the government can grant or withhold as it wishes, just the way kings did. This nation was created to get away from such tyranny, not perpetuate it. Government is a necessary evil, not a benign granter of gifts.

His piece is headlined "The right is wrong about rights." Kruiser's response is headlined "The childlike progressive view of rights," but "What the left doesn't understand about power and its abuse" also would have worked. The more we concentrate on all those conditional rights, the less we focus on fundamental ones. That's how we lose them.

The "pragmatism and flexibility of the Lockean natural rights theory"? Oh, please, gimme a break.


Wed, 08/28/2013 - 2:44pm

Whether a right is negative or positve, that right is limited by the same maxim.  It stops when it interfers with the rights of another.  I may have the right to have my own religious views because our government has no business interfering with it, but it doesn't mean that I can sacrifice a virgin on an altar or beat the crap out of a spouse because they don't follow orders.  I may have the right to good health care, but it doesn't mean that someone has to provide it and I will get you to make you pay for it.  

Leo Morris
Thu, 08/29/2013 - 7:30am

I'm not sure how germane your point is to the fundamental vs. "subsidiary" rights debate, but I agree with it. And I'd throw in that, as long as I am minding my own business and not going out of my way to harm others, I have the right to be left alone.

Thu, 08/29/2013 - 2:29pm

Sorry, sometimes dealing with concepts I have to think.  Two concepts are involved here.  First, the U.S. government is different from any other in the world.  Citizens are not subjects of the state in any form.  Second, positive rights are not rights.  When the U.S. government gives me the positive right to affordable healthcare or any other social program by taking property (money) from someone else it is a form of involuntary servitude to some citizens.  My positive rights are euphemisms for enslavement for others.  Some will say that the authority of the U.S. government to enact these programs comes from Article 1, Sec. 8, "provide for the ..........general welfare of the United States."  That doesn't mean provide welfare for certain individuals any more than the "common defense" means providing security forces to keep your home from being robbed.  

Would it be easier to just say that Mr. Lind is a meathead?

Leo Morris
Fri, 08/30/2013 - 8:11am

Works for me.