Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Principles of constitutionalism: negative rights versus positive rights
Renew America ^ | April 9, 2015 | Tim Dunkin

Posted on 04/09/2015 1:32:40 PM PDT by Yashcheritsiy

It has previously been shown that constitutionalism, by which is meant the general proposition that government should be restrained by well-defined principles and structures under which it operates (whether written or unwritten), depends up a recognition of the rule of law as reflecting natural law. From this natural law arises the recognition, in turn, of the natural rights of individual citizens, which ought to be acknowledged and protected by just government, but which are not granted by any government. These principles, perhaps, find their purest distillation in the American Constitution, a short and simple document which provides a succinct summation of both the natural rights it affirms and a structure of government designed to preserve liberty.

This basis in natural law explains one of the greatest divides between the broad Left and Right, and shows us why one side (the Right) fights to hold onto our Constitution, while the other (the Left) fights to destroy it.

In many ways, what it all really comes down to is whether the rights that every individual has, and should enjoy, are "negative" or "positive" in nature, whether they are primarily "defensive" or "proactive."

Those of us on the Right – liberty-lovers, traditionalists, conservatives, and the like – tend to understand that the rights we have and which are affirmed in the Constitution are "negative" in character. What this means is that rights are viewed primarily as affirming things that other people, in the form of the commonwealth or government, cannot do to the individual possessing those rights. Even when couched in "positive" terms, a negative view of rights understands them to be primarily about restricting others from infringing those rights.

For instance, we often talk of "free speech," and it is often affirmed to mean "being able to say what I want." Yet, what we're really looking at with this is "the government cannot stop me from saying what I want." Likewise, the right to keep and bear arms involves the government being restrained from disarming or otherwise hindering the people from arming themselves for self-defense of every sort.

As such, a "negative" view of rights understands that government is, or at least constantly has the potential to be, the aggressor against the free exercise and enjoyment of our liberties by the people. Affirming a negative view of rights is to proclaim that the government cannot do such-and-such against the individual, his or her property, or his or her person, nor against such voluntary associations as he or she may see fit to join themselves to.

Those on the Left – "progressives," liberals, socialists, and so forth – absolutely hate this view of individual rights. In its place, they prefer a "positive" view of rights as being that which the government or society can compel the individual to do, or to provide for others.

This is why those on the Left often speak of "rights" to health care, housing, a "living wage," and whatever else. These are all "rights" that allow, and indeed require, the government to step in and provide for some by taking away from others. The "positive" sense comes in that individuals have the "right" to get government to something for them. Obviously, this understanding of rights, far from limiting the aggression of government, encourages it and removes restraints from it.

That is why liberals so terribly hate the United States Constitution, except in those few instances where they can (inconsistently) hide behind some of its provisions as the circumstances may suit. Liberals hate a document that exists primarily to prevent government from doing the very things – wealth redistribution, coercion to conform to top-down social standards from a small vanguard "elite" – that they most dearly want government to be doing.

Yet, you cannot have genuine constitutionalism and have a "positive" view of rights at the same time. By their very nature, positive "rights" defy the rule of law, as they necessarily involve one faction using the coercive power of government to force some program onto another group, or to take wealth and property away from one to give to another. This is the very antithesis of a rule of law scenario in which the law applies equally to all and in which neither overarching law nor individual statutes exist at the behest of some small group within society. When you take from one to give to another, you are using unequal law to benefit the one over and against the other. You do not have the rule of law any longer.

Further, natural rights are incompatible with positive rights. Positive rights practically require that some individuals sacrifice the possession of their property – whether material or moral – so that others can gain. When a business or individual is taxed so that the monies can be transferred as welfare payments to others, the individuals being taxed are being deprived of their property. When a small faction of gay activists use the coercive power of government to force bakers and florists to provide services to them, they are stealing away the intangible, yet very real, liberty of these other individuals to associate with whom they choose and to make their own decisions about what they approve or don't approve of.

This is why liberals hate natural law theory and want to replace it with legal positivism. Natural law restrains aggressors from using the force of government to take from others or to force others to adhere to certain "preferred" viewpoints. Legal positivism, on the other hands, allows whatever big government clique that gets into power to excuse any and all intrusions into the private realm of the individual's life, so long as a fig leaf of "social" or legal justification can be provided.

Natural law says, for instance, that gays can't force bakers to bake cakes for them, even should the baker not desire to do so because of "discrimination." Legal positivism and "positive" rights say that gays can compel people who disagree with them, regardless of what they think of the matter. Natural and negative rights provide for a free, voluntary society, while legal positivism and positive rights provide for a coercive, totalitarian society.


TOPICS: Constitution/Conservatism; Editorial; News/Current Events; Philosophy
KEYWORDS:
Navigation: use the links below to view more comments.
first 1-2021 next last

1 posted on 04/09/2015 1:32:40 PM PDT by Yashcheritsiy
[ Post Reply | Private Reply | View Replies]

To: Yashcheritsiy

The two views cannot be reconciled. Normal political means are useless in resolving any impasse between Left and Right.


2 posted on 04/09/2015 1:37:06 PM PDT by AEMILIUS PAULUS
[ Post Reply | Private Reply | To 1 | View Replies]

To: Yashcheritsiy

The Constitution, from the statist point of view, is a charter of negative rights, severely limiting what the government can do and what it cannot do to you.

Correctly viewed however, it is a charter of personal rights, given to us by and which no government has the r8ght to impair, limit or license.


3 posted on 04/09/2015 1:37:44 PM PDT by Vendome (Don't take life so seriously-you won't live through it anyway-Enjoy Yourself ala Louis Prima)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Yashcheritsiy
The Soviet Union had a written constitution that guaranteed much of what we used to enjoy under the US constitution.

Tyranny existed alongside the Soviet constitution.

I ask any Freeper to explain how, through elections alone, we can “reclaim” (Ted Cruz term) our constitution.

4 posted on 04/09/2015 1:39:18 PM PDT by Jacquerie (Article V. If not now, when?)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Yashcheritsiy

Excellent article except for one thing - there are no positive rights, only government granted privileges. Rights are innate. Privileges are given, and may be taken away. Confusing those two concepts by using the word “rights” for both is THE most damaging tactic ever decided for hiding this treachery in plain sight.


5 posted on 04/09/2015 1:42:58 PM PDT by Talisker (One who commands, must obey.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Yashcheritsiy
Those on the Left – "progressives," liberals, socialists, and so forth – absolutely hate this view of individual rights. In its place, they prefer a "positive" view of rights as being that which the government or society can compel the individual to do, or to provide for others.

The minute you can be compelled to provide for anyone who is not your minor child, you become that person's slave.

6 posted on 04/09/2015 1:43:05 PM PDT by Blood of Tyrants (True followers of Christ emulate Christ. True followers of Mohammed emulate Mohammed.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Yashcheritsiy

The terminology employed here is so muddled as to be detrimental to the discussion.

Government “entitlements” are not rights — so there is no point referring to them as anything other than “entitlements”. The Constitution does not empower the government to create the many entitlements which it has wrongfully created.

And the rights of you and I under natural law are not “negative rights”. They are natural rights. The Constitution does not add to nor detract from those rights — it limits the government’s scope, power and authority and makes a passing reference to those rights which exist absent any reference to the Constitution — and which are indeed inalienable.


7 posted on 04/09/2015 1:55:01 PM PDT by BenLurkin (The above is not a statement of fact. It is either satire or opinion. Or both.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Jacquerie

That would be an interesting exercise I think. I always enjoyed the Fantasyland section of Disneyland.


8 posted on 04/09/2015 2:06:32 PM PDT by L,TOWM (Is it still too soon to start shooting?)
[ Post Reply | Private Reply | To 4 | View Replies]

To: BenLurkin
Government “entitlements” are not rights — so there is no point referring to them as anything other than “entitlements”.

If "positive rights" are synonymous with "entitlements" then they are a code word for partial enslavement of others.

9 posted on 04/09/2015 2:26:06 PM PDT by Pearls Before Swine
[ Post Reply | Private Reply | To 7 | View Replies]

To: Vendome
The Constitution, from the statist point of view, is a charter of negative rights, severely limiting what the government can do and what it cannot do to you.

That is the correct view: the Constitution doesn't bind private entities or corporations -- only the government.

Correctly viewed however, it is a charter of personal rights, given to us by and which no government has the right to impair, limit or license.

This is incorrect: to take this view would deny a corporation the affirmation of a jury-trial in the case of crimes [or civil suits > $20] (i.e. the 6th and 7th Amendments, which are specifically binding on legal process, not on people).

10 posted on 04/09/2015 2:32:55 PM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
[ Post Reply | Private Reply | To 3 | View Replies]

To: Yashcheritsiy

The first time I heard the term ‘positive charter of rights’ was from the runt tyrant currently inhabiting the white house.


11 posted on 04/09/2015 3:05:31 PM PDT by skeeter
[ Post Reply | Private Reply | To 1 | View Replies]

To: Yashcheritsiy

Thanks for posting.

That’s an excellent summary.

I often find myself struggling in discussions about “Constitutionalism.”

This post is really helpful.


12 posted on 04/09/2015 10:02:32 PM PDT by zeestephen
[ Post Reply | Private Reply | To 1 | View Replies]

To: OneWingedShark

Frankly, I believe one of the things that has contributed to the situation we are in now is in the extension of the 4th, 5th, 7th, and 14th amendment rights to corporations, in addition to the free speech provisions in the 1st. I would like to see a system in which the employees and directors of a corporation retain their rights as individual persons, but that corporations are viewed as and treated much differently.


13 posted on 04/10/2015 1:11:39 PM PDT by L,TOWM (Is it still too soon to start shooting?)
[ Post Reply | Private Reply | To 10 | View Replies]

To: L,TOWM
Frankly, I believe one of the things that has contributed to the situation we are in now is in the extension of the 4th, 5th, 7th, and 14th amendment rights to corporations,

While the 4th does say that the people have a right to be secure in their possessions (effects ) from unreasonable search, the 5th clearly says nor shall private property be taken for public use, without just compensation — so the question in that case becomes is the corporation's property private property? (If it is, then it must be covered by the 5th.)

As for the 7th, the only condition is that the suit at common law be greater than $20; therefore, as the litigants are of no consequence, if a corporation can have a suit under common law then the 7th must protect them.

As for the 14th, that amendment is a terrible and awful source of trouble: for it is by that amendment that the judiciary declares itself superior to the Constitution. (Look at how they say that the First applies to the states, ven though Congress is specifically and explicitly named.)

in addition to the free speech provisions in the 1st.

I suggest you look at the 1st amendment again:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
That amendment is all about limiting what Congress can do — it matters not if it is a single person printing and distributing literature, or a whole corporation doing so, Congress is prohibited from abridging that.

I would like to see a system in which the employees and directors of a corporation retain their rights as individual persons, but that corporations are viewed as and treated much differently.

That way is very dangerous — think of how that could be used against churches.

14 posted on 04/10/2015 10:44:01 PM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
[ Post Reply | Private Reply | To 13 | View Replies]

To: OneWingedShark

You and I may have to agree to disagree on this one. If I could wave my magic wand, the religious freedom clause in the 1st amendment would read “Neither Congress, a state, or any subdivision thereof shall make no law prohibiting the free exercise of any religion.” Period. There would also be language specifically identifying which rights are inalienable to natural persons and which are not.

Simply put, I do not believe that the system was designed for our representatives to be selected by a few thousand CEO’s and the Uber wealthy of this nation. Which is what the primary system, the two parties, and the unlimited cash from PAC’s accomplishes for the ruling class now.


15 posted on 04/11/2015 3:34:45 AM PDT by L,TOWM (Is it still too soon to start shooting?)
[ Post Reply | Private Reply | To 14 | View Replies]

To: L,TOWM
Simply put, I do not believe that the system was designed for our representatives to be selected by a few thousand CEO’s and the Uber wealthy of this nation. Which is what the primary system, the two parties, and the unlimited cash from PAC’s accomplishes for the ruling class now.

I don't believe that either — but that's not what we were talking about, we were talking about whether or not the Bill of Rights protects corporations or not.

Given the preamble of the Bill of Rights, and how it is quite clear that the Bill of Rights is limiting the [federal] government, I'm of the opinion that the Bill of Rights must in-general protect corporations because as they are a group of people to do otherwise would set the precedent that being in a group invalidates individual rights.

You and I may have to agree to disagree on this one. If I could wave my magic wand, the religious freedom clause in the 1st amendment would read “Neither Congress, a state, or any subdivision thereof shall make no law prohibiting the free exercise of any religion.” Period. There would also be language specifically identifying which rights are inalienable to natural persons and which are not.

Have you read the Constitutions of the States? How about your own? Usually they have just as strong guarantees, but it's not uncommon for more/better guarantees under a State's than the federal Constitution; a few examples from PA's Constitution:

Article 1 — DECLARATION OF RIGHTS

Religious Freedom
Section 3.
All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.

Elections
Section 5.
Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.

Freedom of Press and Speech; Libels
Section 7.
The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever by made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.

Security From Searches and Seizures
Section 8.
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed by the affiant.

Right to Bear Arms
Section 21.
The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

16 posted on 04/11/2015 9:47:24 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
[ Post Reply | Private Reply | To 15 | View Replies]

To: OneWingedShark
I don't believe that either — but that's not what we were talking about, we were talking about whether or not the Bill of Rights protects corporations or not.

I hope you'll forgive me if I find that statement somewhat disingenuous. At the very least, permitting a corporation or a PAC or a labor union to have unlimited contributions to elections, based on their right to free speech, is essentially making our government another asset of the Fortune 500 and public employee unions. This is a big reason for the shape we are in now. And also a big part of why the rest of us are essentially invisible to our government, except for the taxing authorities and whichever agency regulates the industry we work in.

17 posted on 04/11/2015 10:37:57 AM PDT by L,TOWM (Is it still too soon to start shooting?)
[ Post Reply | Private Reply | To 16 | View Replies]

To: L,TOWM
I hope you'll forgive me if I find that statement somewhat disingenuous.

Er, why?

At the very least, permitting a corporation or a PAC or a labor union to have unlimited contributions to elections, based on their right to free speech, is essentially making our government another asset of the Fortune 500 and public employee unions.

Ok, as a counter-point to this: how involved should the government be in the voluntary transfer of funds of one private entity to another?

I think you're approaching things from a viewpoint already accepting the validity of big-government — in the case of what the Constitution actually provides for, 95% of the federal government shouldn't exist and it would lack the power to intrude so much into daily affairs. This is to say, that properly constrained by the Constitution, government wouldn't be big enough [or powerful enough] for the corporations to buy.

Or, more simply:
When buying and selling are controlled by legislation, the first things to be bought and sold are legislators.
— P. J. O'Rourke

This is a big reason for the shape we are in now.

Because people accept assertions that what the government does is valid; because they accept transgressing the Constitution; because they have been brainwashed to think that there ought to be a law and the government needs to be a the major presence in their lives.

And also a big part of why the rest of us are essentially invisible to our government, except for the taxing authorities and whichever agency regulates the industry we work in.

I'm not saying that there isn't a problem here; but the reality is that if the federal government were constrained by the constitution virtually all of that regulation would be non-existent. The big-corporations and political-unions are only powerful because they buy and sell favor via government power, strip these powers from government and you strip them of their influence.

18 posted on 04/11/2015 11:08:36 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
[ Post Reply | Private Reply | To 17 | View Replies]

To: OneWingedShark

I will agree that if the government has too much power, but I have to confess exasperation that so many people, just as smart as I am or smarter, refuse to recognize something simple.

The government grew to this size and power under THIS constitution and with processes that have been in place since 1789. It took some disastrous amendments and court rulings to get here, yet this constitution has been unable to prevent our nation from being on the edge of full blown tyranny.

If the current constitution doesn’t provide for 95% of the government we have now, how did we end up with it? Was there another system in place? What is your explanation for how we got the 95% of the government we should not have under any plain reading of the supreme law of the land?

And no, I do not accept the validity of big government. I’ll go you one further; at this point, I no longer accept the validity of the document and processes that permitted that big government to happen.


19 posted on 04/11/2015 11:47:15 AM PDT by L,TOWM (Is it still too soon to start shooting?)
[ Post Reply | Private Reply | To 18 | View Replies]

To: OneWingedShark

“Negative rights”

Talk about prejudicial terminology!

The underlying concept is that government prerogatives should be unlimited.


20 posted on 04/11/2015 11:59:42 AM PDT by cookcounty ("Random Citizen:" ...ObamaSpeak for "Christian.")
[ Post Reply | Private Reply | To 10 | View Replies]


Navigation: use the links below to view more comments.
first 1-2021 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson