By Christina Ge (CM ’20)
There is an inherent distinction between obligations and aspirations. We ought to follow obligations but we strive to achieve aspirations. In a similar way, rights can also be interpreted as obligations or aspirations, or as negative and positive. While some rights in the First Bill of Rights and the Declaration of Independence are inalienable to us by our virtue of being human, the rights in FDR’s Second Bill of Rights are less fundamental and contingent upon societal conditions. In this article, I will first prove that there is an inherent distinction between positive and negative rights, both in their nature and in government engagement. Then, I will prove that positive “rights” are better characterized as government entitlements, or aspirations.
Positive rights necessitate government action; negative rights necessitate government inaction. It is commonly perceived that the Bill of Rights and Declaration of Independence represent negative rights, while FDR’s Second Bill of Rights entails positive rights. To understand why negative rights are more fundamental, it is important to search for the underlying premises of the rights enshrined in the Declaration of Independence and the Bill of Rights.
In the Declaration of Independence, the founders wrote that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” – all serving as “self-evident” truths, or negative rights. Life, liberty and the pursuit of happiness, or the means to pursue your own ends, are presupposed rights guaranteed to all humans despite their race, gender, ethnicity, status etc. These rights do not need to be earned; they are given to human beings by God. They are pre-political, and the founders claimed that they existed prior to government formation. Even while under monarchical rule, the colonists realized their God-endowed rights granted everybody equal potential to become political beings, and it is on this basis that they declared independence. As Danielle Allen writes, when the colonists claimed to possess these entitled rights, they were following their desire to survive – something as instinctual and natural as the law of gravity, or how water would flow downhill (Our Declaration, p. 132-3). And “when any group finds a way to survive that does not endanger the survival of anyone else, we should respect their right to organize their survival for themselves,” because these forces of nature are “an expression of God’s might” (Our Declaration, p. 134). Similarly, the Bill of Rights also contains inalienable rights such as the freedom of speech, religion, press, peaceful assembly, the right to be secure against unreasonable searches, and a trial before a jury (Federalist Papers, p. 471). On a philosophical level, these rights are entitled to all people in democracies, and are not contingent upon anything. They represent basic foundational blocks of democratic society upon which other laws are constructed. Because the right to religious freedom or free speech necessitates the lack of government intervention, they are considered negative rights.
On the other hand, FDR’s positive rights require policy planning and extensive government action to implement. Some include: the right to earn enough to provide adequate food and clothing and recreation; the right of every family to a decent home; the right to a good education. Interestingly, these rights seem to be constructed upon the philosophical foundations of negative rights, or the underlying premises of equality and self-ownership in the Bill of Rights and the Declaration. FDR proposes these rights with the assumption that all men are indeed created equal, and therefore all have the potential to become “political beings” that can contribute to self-government (Our Declaration, p. 35). Because all people have the potential to contribute productively, they all have the right to be enabled to do so through a good education. To implement this positive right, the government acts to fund schools, establish school districts, hire teachers, etc. The purpose of positive rights, in a way, is to equalize society and strive to realize negative principles such as equality and liberty. Because people are born into different socioeconomic circumstances, the government implements social infrastructures such as education, Medicare, housing programs, pension and insurance plans to enable all citizens to achieve the means to their own ends.
With the distinction in nature explained, I will now move onto the distinction in governmental involvement in both types of rights. Consider the freedom of religion. Though it is a negative right, the government must act to ensure that other people’s right to religion isn’t violated, since how we think of rights must be in relation to other’s rights. For example, I can have as much freedom of thought as I want, but I can only have enough freedom of religion as to not infringe upon others’ right to religion. Although a neutral government must avoid dictating versions of “the good life”, or a set of moral standards that everyone should adhere by, it must also simultaneously ensure that people’s religious freedom is not being compromised. Thus, to protect this negative right, it must balance safeguarding sectarian expression and not showing preferences for denominations.
However, we now run into a problem: if I have proven that the government must act to defend religious freedom, is it actually a positive right since it also mandates government action? Critics may argue that there is no distinction, but I think the distinction actually becomes more pronounced on this basis: negative and positive rights necessitate different types of government responses. Action that is necessitated due to securing a negative right differs in nature than action that is necessitated to implement policy, or a positive right. Since positive rights focus on implementation, there is more to be done on the part of the government than just regulation. FDR’s positive rights would require government policy implementation, rather than mere interpretation of the law. Although both positive and negative rights necessitate action, the intention behind the action is different: whereas one stems from implementing a version of the “good life”, the other stems from securing the fundamental principles that led to America’s creation.
Now that I have established why we must view negative and positive rights differently due to inherent differences, I will move on to part two of the paper. I seek to explain why positive “rights” are better interpreted as government entitlements, since they are contingent upon societal conditions and the desires and needs of people specific to each society.
Rights, as defined earlier, are usually moral or legal entitlements all people are granted at birth. And while negative rights are pre-political and not contingent upon anything, positive rights often depend upon societal conditions. In fact, FDR proposes his bill already having accounted for the generally high living standards of liberal democracies. The government has the resources necessary to implement social infrastructures that would facilitate these “rights”. For example, to actualize the right to healthcare, education or jobs, the government must have the capabilities of building hospitals, schools and social security systems. Thus, if for some reason, the abilities of the government were to be compromised, would these “rights” no longer be considered as such? For example, in a small, undeveloped town, it may be impossible for school-aged children to receive an education. Thus, does this limitation render FDR’s right to education illegitimate? In this case, “rights” seem to be highly dependent on what the government or society is capable of achieving, or subjected to change, rather than negative rights that always stay true. Therefore, although the government strives to fulfill the positive right of education, it may fall short in some situations without delegitimizing the overall value of education; on the other hand, the government must always secure negative rights, since if it fails to secure religious freedom for one person, it compromises the same right for everybody else.
Furthermore, positive rights inherently have a more expansive understanding, since they largely depend on the shifting priorities of government, which are not what rights should be constructed upon. This expansive understanding worries me, since it deviates significantly from the narrow yet accepted understanding of fundamental negative rights. It would be more appropriate to call these “rights” government entitlements, since they are policy improvements we strive towards. They also strengthen negative rights, as there is also more room to cater specifically to each society’s needs, or how they believe best to achieve the negative rights. For example, since Canada deems healthcare as one of its top priorities, it provides free medical care to all its citizens. However, in the US, more priority is placed upon free markets; this prioritization is visible in that the government tends to favor tax breaks for the rich rather than reforming the Medicare system. In other words, there doesn’t seem to be an exact set of criteria underlying FDR’s proposed bill. Why does he propose the right to “a useful and remunerative job” but not job training? Or why “a good education” but not a university degree?
Furthermore, the types of positive rights a government can propose largely depend on its resources and living standards. As society progresses, perhaps we can one day reach a point where life expectancies have risen significantly and unemployment rates are at an all-time low. At that point, FDR’s “rights” would seem inadequate and already fulfilled. According to his logic, perhaps it would then be reasonable to even propose third or even fourth bills of rights as living standards improve. Many goods that we currently consider necessities were once considered luxuries. Especially in the technology sector, many now perceive cell phone ownership or Internet access as rights. When the Black Plague wiped out ⅓ of Europe’s population, governments did not have the resources to provide adequate medical services to citizens, and thus, healthcare could not be considered a right. As society moves forward, humans become acclimated to higher standards of living, and perhaps one day, FDR’s positive “rights” will seem redundant and already achievable. The point, however, is that since all positive “rights” aspire to achieve negative rights, they should be perceived as government entitlements instead.
Although the line between positive and negative rights is certainly controversial, we must perceive them distinctly to truly adhere to the fundamental premises that shape democracies. Negative rights are narrow, universal, yet self-evident truths about the nature of humans, while positive rights more resemble government entitlements that build upon these pre-political blocks. Negative rights must always be secured to maintain their purpose and value, while positive rights cannot always be fulfilled due to different government capabilities and priorities. Ultimately, our aspirations and obligations do not have to operate separately despite their important distinctions; in fact, when they function together, aspirations strengthen the very obligations they draw upon.
