“The Constitution is a charter of negative rather than positive liberties” – Judge Richard Posner
Yesterday I stumbled across a quote from Senator Rand Paul that someone had posted in a Facebook Group. The quote comes from a Subcommittee Hearing on Healthcare on May 11, 2017. You can find a video of the hearing here. The quote made by Paul starts at 1:37:05. It reads as follows:
“With regard to the idea of whether you have a right to health care, you have realize what that implies. It’s not an abstraction. I’m a physician. That means you have a right to come to my house and conscript me. It means you believe in slavery. It means that you’re going to enslave not only me, but the janitor at my hospital, the person who cleans my office, the assistants who work in my office, the nurses.
Basically, once you imply a belief in a right to someone’s services — do you have a right to plumbing? Do you have a right to water? Do you have right to food? — you’re basically saying you believe in slavery…
I’m a physician in your community and you say you have a right to health care. You have a right to beat down my door with the police, escort me away and force me to take care of you? That’s ultimately what the right to free health care would be.”
Of course the good doctor is 100% correct. If you doubt that assertion, try substituting “house” or “$1 million” in place of “health care”. Health care is a good – a commodity provided by someone else’s labor. In a free society, a person is paid for their labor according to the market rate for that labor. And they are free to decide if they want to provide said labor.
I’m always baffled by confusion on this matter. If you want something without payment – and then legislate that it be so – you have just conscripted others into your service. It might be the doctors – by forcing them to provide healthcare – or it might be your next door neighbor who is now working to pay extra taxes to cover your healthcare expenses. Or it might be both. But make no mistake, you have just forced someone else to do something for you – against their will.
By claiming a right – a Positive Obligation – to health care, you have trampled on someone else’s right.
But healthcare is not what I’m going to focus on in this post. (For a thoughtful, yet concise, discussion on health care see here.)
In response to the Rand Paul post I made the following comment:
“A “right” always conveys an action or nonaction onto another. That’s so often overlooked.”
There was a near-immediate response claiming that I was incorrect. The respondent noted that a right is the freedom to do something without the requirement of permission – like freedom of speech or freedom of religion. He disputed that a right conveys any responsibility onto another. His premise – that a right is fundamental and does not convey any obligation onto another – was only partially correct. I understood his point, but I had specifically commented in the manner I did, because there is so often confusion over the basic concept of rights. My response:
“A right to freedom still conveys a nonaction on the part of others. That is why rights can be taken away if we are not vigilant.”
What I was referring to is known as a Negative Obligation – the requirement of abstention from violating an individual’s rights. Positive Obligations are the opposite. They denote a requirement to engage in an activity to secure the effective enjoyment of another’s right.
The distinction between the two is vital. (For an accurate and succinct discussion of rights from the Ayn Rand Lexicon, see here.)
We as individual citizens, have only Negative Obligations placed on us by our Constitution. This must be so in order to protect our individual rights.
As noted by the Ayn Rand Lexicon:
“The concept of a “right” pertains only to action—specifically, to freedom of action. It means freedom from physical compulsion, coercion or interference by other men.
Thus, for every individual, a right is the moral sanction of a positive—of his freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice. As to his neighbors, his rights impose no obligations on them except of a negative kind: to abstain from violating his rights.”
In the referenced discussion on health care, the same point is made in plainer language:
“The right to life, liberty, and the pursuit of happiness, as described in the Declaration of Independence, doesn’t mean that someone else is forced to provide you with the means to sustain or improve your life. It means that government cannot enact laws, rules, or regulations that interfere with or infringe upon your right to pursue such things.”
We are granted the freedom to act as we will, to pursue what we want – as long as we do not place requirements onto others (without their consent). Rights are not about giving you something for free – they are about protecting natural liberties from those who would take them away from you.
It may seem like I am stating the obvious but consider how many times individuals, groups – or society – assert positive rights. Healthcare, a minimum or living wage, and education are all examples of positive rights.
By contrast, negative rights stem from the foremost and only fundamental right – the right to life. All other rights stem from this right. From right to life comes right to property. And as noted in the Rand Lexicon, “without property rights, no other rights are possible”. For a “man who produces while others dispose of his product, is a slave”.
And so we return, full circle, to Rand Paul’s point.
Viewing a proposal or argument through the filter of positive and negative obligations – of conveying either a positive or negative right – can be one of the single greatest tools to understand an underlying argument. Does the proposed legislation – i.e. Universal Healthcare – require a positive obligation of another? If yes – as Universal Healthcare does – the legislation is something that inherently infringes on the rights of others.
This is something the Left intrinsically trips over.
Liberals elevate the rights of the collective over the rights of the individual. And ultimately, sacrifice the rights of the collective to the power of government.
Judge Posner knew this when he made his famous legal statement. “The Constitution is a charter of negative rather than positive liberties”.
Remember that when you are next faced with a liberal argument.
For an excellent – and more detailed, legal examination of the issue see Positive and Negative Constitutional Rights.
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