Monday, December 05, 2005

The negative rights debate continues

My debate with Mike Huben on negative rights and the United States Constitution continues. My basic thesis is that the substantive rights defined in the Bill of Rights and the Civil War Amendments, while often defined very broadly ("rights...retained by the people," "life, liberty, and property," "privileges and immunities," "equal protection of the laws," etc.) include only negative, and never positive, substantive rights.

I have since made a second claim: that it continues to be the case that, when broadly defining basic human rights, positive rights are a very bad idea. This is illustrated by our experience with some broad clauses in the constitutions of some States and some foreign nations defining positive rights (such as a "right to health care" or "right to education"). These clauses are naive and inherently vague, have led to endless debate, and have harmed rather than helped the economy in general and the poor in particular.

10 Comments:

Blogger Gabriel Mihalache said...

This is a very important discussion that gets very little attention, as all important topics seem to get.

People seem to forget that the welfare-warfare state is a relatively recent development, and one that we might want to revert.

I think the resistence against positive "rights" is best coupled with a rejection of implicit positive obligations between all members of a society. I'm looking forward to comments on that! :-)

2:54 PM  
Anonymous Adam said...

I tend to use the word liberty when I mean liberty, because there's no catchphrase like 'liberty from hunger.' Yet anyway.

7:00 AM  
Blogger Mike Huben said...

Adam, you're wrong. FDR's "Four Freedoms" speech:

"In the future days which we seek to make secure, we look forward to a world founded upon four essential human freedoms."
"The first is freedom of speech and expression --everywhere in the world."
"The second is freedom of every person to worship God in his own way-- everywhere in the world."
"The third is freedom from want, which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants --everywhere in the world."
"The fourth is freedom from fear...."

It will take a little longer to respond to Mr. Szabo.

2:59 PM  
Anonymous George Thompson said...

Japanese-Americans in particular had a splendid economic understanding with Roosevelt, as well as freedom from fear, no?

The "economic understanding" was that Roosevelt would steal their lands, drive them from their homes, and provide them with government-built housing, a.k.a. concentration camps.

Another "economic understanding" Roosevelt had was with the millions of other people he drove out of business with his government planned cartels.

Another great understanding was when he confiscated gold from all Americans and built the world's largest gold horde at Fort Knox, putting old Smaug to shame.

Yes, all us ignorant fools would be free, if only we let good old government boys like FDR, who only have our freedom in mind, do our planning for us.

6:04 PM  
Blogger Nick Szabo said...

I agree with Gabriel that it's the positive obligations to act, often in a quite costly fashion, that make positive rights problematic. Positive rights require involuntary servitudes.

Adam's comment reflects that many of us still instinctively think of "liberties" and "rights" as synonomous with negative rights. That's how the founders thought of rights, so they didn't need a special phrase "negative rights."
Of coure, many so-called "progressives" like Roosevelt later disagreed.

George, Roosevelt did pay dollars for the gold, but considering that about a year later Roosevelt devalued the dollar relative to gold by about 40%, it was not exactly just compensation. Roosevelt's executive order was a culmination of the central bank gold hording war that greatly contributed to the Depression in the first place. Ironically, the order accused its victims of "hording." The Federal Reserve "won" the hording war and most other central banks went off gold altogether.

As for the Japanse-Americans, Roosevelt didn't steal their land directly, but the rapid forced relocation meant that many Japanese-Americans had to sell their lands for pennies on the dollar. The American economy in general, not to mention the Japanese-Americans in particular, were deprived of their unique farming skills. Quite shamefully, most of the Supreme Court's justices, who had been appointed by Hoover and Roosevelt, held this wholesale and parallel deprivation of many constitutional rights to be constitutional, in the sordid Korematsu case. Apparently Americans' "freedom from fear" was also a positive right that required an acceptable (to Roosevelt and his Supreme Court) corresponding positive obligation: the obligation as a member of a feared minority to be deprived en masse of one's constitutional rights.

7:06 PM  
Blogger Mike Huben said...

Just checking in, but it's astonishing to me that George and Nick are unable to admit that I'm right, and provided a counterexample to Adam's claim. Instead, it's as if I hit some hot button, and oblivious to the fact that FDR ***did*** establish a catchphrase that was inportant to a generation, immediately go on to attack Roosevelt.

It makes me wonder if I should bother posting at a blog where even focussed responses about facts immediately trigger loosely related ideological barrages resembling the shouting of "sexcrime". That's much easier than admitting error, I guess.

Except in the dream world of Pareto-efficiency, no matter what actions take place, some will be made worse off. "Liberty" has its faults too, as the history of lynchings, prejudice, and assorted crime tell us. There is no institution or actor that can be perfectly unobjectionable; for all of the bad things you think FDR did, he and Stalin together did stop the Nazis, and that was far more important than the change in gold policy and the persecution of some innocent Japanese citizens. Doesn't excuse those actions, but have a sense of proportion.

5:31 PM  
Blogger Nick Szabo said...

Mike, I did point out Adam's error -- "[o]f coure, many so-called 'progressives' like Roosevelt...disagreed" with Adam and the U.S. founders. I also pointed out in the earlier thread that many communist constitutions, among others, were or are full of such declarations of positive rights. That positive rights became popular along with Marx during the Depression no great mystery; it's not worth belaboring the obvious.

What is worth discussing is what effects these rights (and the mindset behind promoting such rights, which ignores the corresponding involuntary servitudes) actually had or failed to have on actual people. Despite of (and sometimes because of) Roosevelt's promotion of positive rights, many other rights were violated under his rule. This is hardly "loosely related"; it's one of the two theses I said that I am arguing, namely the negative effects of positive rights.

8:20 PM  
Blogger Mike Huben said...

It is silly to single out "Roosevelt's promotion of positive rights", claiming it made him any more likely to violate other putative rights. The US has traditionally persecuted minorities and conscripted in times of war, for example.

It would be so nice if you were able to quantify such claims and show causation, rather than produce endless just-so stories that appeal to the true believers.

'Adam's comment reflects that many of us still instinctively think of "liberties" and "rights" as synonomous with negative rights.'

Ah, the "instinct" frame. Please oh please show some anthropological evidence that this is instinct, and not merely ideological conditioning, I'm waiting with bated breath.

'That's how the founders thought of rights, so they didn't need a special phrase "negative rights."'

The primary concern of the founders was creation of a government, which is based on political rights, which are not negative rights. Rights to self-governance in the orginal meaning of community to govern itself (rather than the libertarian historical revisionist meaning for individuals to behave well.)

The founders had a much wider view of rights than the stilted, cold-war inspired false dichotomy claimed by Berlin.

4:49 AM  
Blogger Yacap said...

Actually, both sides of this debate are wrong. The US Constitutition grants neither positive nor negative rights, because it grants no rights at all. The phrase "constitutional rights" is a misnomer. It lists some rights, which people have as a matter of fact, prior to the constitution; it doesn't grant those rights. But those rights it lists are all negative rights, as all true rights are necessarily negative rights - in fact, there's only one right: the right to property; all other rights are corolloraries of that.

4:30 PM  
Blogger Mike Huben said...

I don't see any other way to communicate with Nick than to add a comment to this post.

My explication of why I think Nick is wrong in his methodology of constitutional interpretation (along with many others) is now available through my blog:

Mechanism, Not Policy: Creation Of The Second Invisible Hand

I also suggest my own methodology for interpretation.

I'm also working on my interpretation of rights: it's another long standing project, with no estimated release date.

9:33 PM  

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