Positive rights in the Framing era

"Right" means many things, and has long meant many things.

|The Volokh Conspiracy |

A recent post by David L. Burkhead (linked to by Sarah Hoyt) repeats a claim I've often heard: That "the right to [something]" "actually means" just a negative right—a right not to be free from some restraint—rather than a positive right, "a right … that someone else must provide [something]."

I think that claim misdescribes what "the right to" means in the American legal tradition, from the Constitution and the Bill of Rights to the present. Maybe it would be good to have a sharp linguistic distinction between negative rights and positive rights—but the actual phrase "the right to" in American legal usage does not draw that distinction.

I am not a fan of many asserted positive rights (e.g., a right to shelter, to medical care, to a subsistence income), and the Constitution doesn't secure them. But it does secure other such rights, and other well-established American sources of law secure still more.

Let's begin with a quick tour through rights in the Constitution. The word "right" appears exactly once in the original Constitution—in the Copyright/Patent Clause, which gives Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Such an "exclusive Right," secured promptly by Congress in the first copyright and patent statutes, involves a positive right to go to court to stop infringements: That's the point of giving government the power to "secur[e]" an "exclusive Right." There is also a negative right there—a right not to have others copy your works or inventions—but the purpose of the Clause is precisely to have someone (the government) provide protection of that right through the court system.

Now of course that right was itself to be secured by federal statute; the Constitution doesn't directly protect authors' or inventors' rights, but just gives Congress the power to protect them. But that just helps show that "right" has long covered many kinds of rights—statutory as well as constitutional, positive as well as negative.

Let's move down the body of the Constitution, to article I, sections 9 and 10. Even before the Bill of Rights, these provisions secured various rights against the federal and state governments. Many were negative rights, such as the rights not to be subjected to ex post facto laws and bills of attainder.

But what about the Contracts Clause ("No state shall … pass any … Law impairing the Obligation of Contracts"), described by Federalist No. 44 as a "constitutional bulwark in favor of … private rights"? That secures a positive right—the right to go to court and have the courts enforce a contract you entered into. If a state legislature simply decides that courts will do nothing to enforce your contract, that would be a forbidden law impairing the obligation of contracts. The Contracts Clause secures you a positive right to have the government use its coercive power to enforce your contracts. (The Supreme Court has been quite stingy about enforcing the Clause recently, but that's a separate matter.)

How about Article VI? Its first sentence says, "All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation." That too secures a positive right on the part of holders of U.S. debt—including speculators who had bought up the debt at a discount—to be provided payment on that debt.

Now the Bill of Rights, like sections 9 and 10 of article I, mostly does secure negative rights (such as the right not to have the government punish you for your speech). But consider the Takings Clause; it stops the government from physically taking away your property, but I think it is also properly read to assure you some affirmative governmental protection for your property. (Protection of property from trespassers, after all, was long understood as a major function of government.)

Say that the government said, "Anyone is henceforth free to use your property, and if you sue them for trespass or call the police to kick them out, we'll do nothing to help you." That would, I think, be a taking of your property for public use—literally, allowing the public to use it—and would require the government to compensate you. (See, e.g., Kaiser Aetna v. U.S. (1979), for a modern reaffirmation of this principle.) That reflects the positive right component of the Takings Clause (a right to government protection of your property) and not just a negative right.

Or consider the Seventh Amendment, which secures both to plaintiffs and defendants the right to trial by jury in many civil cases. This presupposes a positive right to go to a government-provided court and have a government-provided decisionmaker render a verdict that you can then ask the government to enforce.

Now let's look at another Constitution, which also tells us something about how Americans of the Framing era understood rights: the Pennsylvania Constitution of 1776. (Recall that the U.S. Constitution deals with only a part of the American structure of government—the federal government, the relationship of the federal government with the states, and the relationship among the states—and leaves the structure of state governments, which were much more important to people's lives at the time, chiefly to state constitutions.)

Article VIII of the Pennsylvania Bill of Rights says that "every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary, or an equivalent thereto." This is an overtly positive right—a right to have the government provide protection of life, liberty, and property (though with a corresponding duty to pay one's share for that expense). It is likely not a judicially enforceable right; again, "right" is a term with many meanings, and can apply both to judicially enforceable rights and to rights that are expected to be protected through the political process. But the Framers of the Pennsylvania Constitution were certainly willing to label it a "right" nonetheless.

The Pennsylvania Constitution also expressly referred to the "right" to trial by jury in civil cases, including the right of plaintiffs to demand a jury for a case in which they affirmatively seek government enforcement of the law: "in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred."

Likewise, though the federal Constitution doesn't secure a right to vote (except to say that those who can vote in state elections can vote in federal ones), the Pennsylvania Constitution certainly did, and called it a right. ("Every freeman of the full age of twenty-one Years, having resided in this state for the space of one whole Year next before the day of election for representatives, and paid public taxes during that time, shall enjoy the right of an elector.") It's a political right—a right to participate in a particular political process—and thus somewhat different than some other rights, but it's still a sort of positive right.

The Massachusetts Constitution of 1780, largely credited to John Adams has similar language, and further reaffirms a right to judicial protection of one's rights: "Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws." This is a positive right to get a "remedy," and not just a negative right to be free of restraint.

All these positive rights, I think, capture a broader point. Civilized life, including in the view of conservatives and almost all libertarians (except anarchists), requires that the government positively protect property, contracts, and persons. Indeed, the main reason American governments were created was to provide positive protection for our rights—protections from foreign nations and protections from our own fellow citizens.

Conservatives and libertarians are right to stress the importance of private property, of freedom of contract, and of personal liberty. But they are not the antithesis of positive rights against the government. Rather, protecting them necessarily involves positive rights to have the government provide some such protection (through courts, through the military, and through the police and similar institutions), at least in the view of the American legal tradition.

This doesn't tell us, of course, what other positive rights are secured by American constitutions (not many, but a few; many state constitutions could be read as securing a right to a free public education). It doesn't tell us what other positive rights should be secured by those constitutions, or by federal or state statutes. But it does remind us that the word "right" in the American legal tradition—including in the American constitutional tradition, going back to the Framing era—has never been limited to negative rights.

NEXT: Trump's NAFTA Antics Will Drive America's Auto Industry Into a Ditch

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Umm, the Ninth Amendment guarantees to the people ALL rights NOT enumerated in the Constitution.

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    I wonder of Mr. Volokh might enlighten us, with a list of what these rights are, since he alleges there are only “a few.” Based on what?

    Obviously, the unenumerated rights negate the claims by the KKK, southern racists and Ron Pual, that the 10th Amendment empowers states to do whatever they choose .. and that “rogue judges” (SCOTUS) have no power to defend Constitutional rights from abuse by state or local governments .. while falsely claiming to be “originalists” or “constitutional conservatives.” (lol) Jefferson was, of course, crazy to say that governments are formed to defend unalienable rights .. Life, Liberty, Pursuit of Happiness and all the many others. (which Volokh claims are only “a few”, based on God only knows what)

    1. No, it guarantees to the people all then existing rights not enumerated in the Constitution. It wasn’t a license for the judiciary to invent new rights, it was simply intended to rule out existing accepted rights being repealed by the failure to mention them.

      If a right was generally accepted at the time of the 9th amendment’s ratification, it is protected under the 9th amendment, but you still have to establish that it was already generally accepted at that time.

      1. Brett takes the bait!

        No, it guarantees to the people all then existing rights not enumerated in the Constitution

        WHAT WERE THEY? (lol)

        but you still have to establish that it was already generally accepted at that time.

        NAME THEM!!

        Then I’ll explain your total; ignorance of individual liberty.

        1. Sheesh, you sure are hostile to the idea that the 9th amendment doesn’t license judges to just make up any right that comes into their head.

          Let’s see, a right to garden or farm, a right to hunt, a right wear clothing… You’d have a 9th amendment violation if the government banned bathing, for instance. Or mandated that you skip instead of walking.

          All those rights that never got included in the Bill of Rights because it never occurred to anybody they’d need to be listed.

          1. 1 of 2
            Now that you finally name SOME rights I can continue. WHO defines those as rights? And all the others. WHO?

            ALL rights are limits on government. They wanted a perpetual Constitution because the Articles lasted only 18 years. There was sincere fear that enumerated rights might be considered the only rights … and the Declaration’s premise ALREADY had unenumerated rights. “… AMONG those rights are Life, Liberty, etc. Pursuit of Happiness was itself a undefined extension from Life, Liberty and Property.

            And the Declaration is the PHILOSOPHICAL basis of a “just” government.

            They KNEW they could never assume all possible future abuses, so a perpetual constitution needed an open-ended mechanism to DEFINE those rights from unforeseen abuses. The 9th incorporates the Declaration’s unalienable rights ? which are now called “fundamental” rights in the law and rulings.

            ONLY the Judiciary can perform this function, because only the other two branches can abuse our rights. . Checks and Balances. So the Authoritarian Right , by denying Judicial Review, claims we have NO constitutional protection from ANYTHING …. because THEY want to abuse someone’s rights … originally blacks, now gays ? to “justify” their rejection of equal rights.

            You now have nowhere to go … unless you deny THREE co-EQUAL branches AND Balance of Power, AND checks and balances.
            Cont’d

            1. 2 of 2
              If you say judges “invented” a right, poor phrasing, but THAT’S THEIR JOB. Tell me how the Founders could have assumed gay marriage. It had to appear, and then be banned, and only THEN decided if it’s a protected right. So first the law. THEN a judgment.

              There can be no right to something that never existed!
              .
              IT’S IN THERE. The 14th Amendment FORBIDS states to deny equal treatment under the law. And it’s the 9th which empowers the courts to decide. Whoever told you gay marriage is not in the Constitution is lying about BOTH those amendments. Both. Read ’em,

              (And forget the religious b.s. Marriage was not a Sacrament until 1500 years after the death of Christ. For the vast majority of human history, in years, it was NEITHER church NOR state. We’re being manipulated by Political Elites, left and right, each conniving to pull us in a different direction. Like every other damn issue these days, which is why God invented libertarians! ,,.. then the Devil crippled them. For now!.)

              1. Like Hell that’s their job. Their job is to uphold the rules other people originated, whether or not they like them, and if they can’t stomach doing that, they should find another line of work.

                1. Brett REPEATS his right-wing fascism … says we have NO defense from ANY abuse, by government, of even the most fundamental of individual rights. Trust him, not the mere words of an ancient Constitution

                  To authoritarians — left and rIght —
                  It’s INSANE that rights protect us from government abuse.
                  Because THEIR government would NEVER abuse any rights .. so repeal the Constitution … allow then to govern use in whatever way they choose, and simply … TRUST THEM

                  “Why?”
                  TREASON that you would ask such a thing.

                  What could possibly go wrong?
                  Said a sign at the entrance to Auschwitz.

                  Mass movements do not need a god, but they do need a devil. Hatred unifies the True Believers.” -Eric Hoffer, “The True Believers” (1951)

  2. “Civilized life, including in the view of conservatives and almost all libertarians (except anarchists), requires that the government positively protect property, contracts, and persons.”

    Well, the Supreme Court disagrees with you about protection of persons: CASTLE ROCK, COLORADO v. GONZALES.

    1. “Again, ‘right’ is a term with many meanings, and can apply both to judicially enforceable rights and to rights that are expected to be protected through the political process.”

    2. The case is not that clearcut. I was stunned to see! She sued he city because the police ignored her repeated calls that her estranged husband had violated a restraining order by kidnapping her sons. She used the Due Process Clause.

      Did the Due Process Clause create a property interest in police enforcement of the restraining order against her husband? (For any readers, it was not just violating a restraining order. He murdered the three children,)

      I’d like to think the error was using the Due Process Clause like that. I only read a summary of the ruling, which did not SEEM. to deal with the enforcement validity of a restraining order. There have been trials for violating such orders. And the issue, in simple English, is can the police be legally accountable for failing to respond to and enforce the restraining order. The murder is tragic, but is extraneous to the case. I’d have fired the cops!.

      If this is intended as an argument against Judicial Review, I’ll suggest you need a alternative that does not assume humans are infallible — to defend us from abuses by the other two branches, at any level of government, as the Founders intended

      Would YOU have argued Due Process on this (may be an unfair question!)

  3. I think it can be summed up in this way: The natural rights guaranteed protection by the Constitution are negative rights, but the Constitutional also creates, not guarantees, some procedural rights and privileges that take the form of positive rights.

    1. That’s silly.

      First of all, there is no such thing as a natural right. There is no evidence of a god who intervenes in human affairs, and even if there is one, nobody can agree on what She considers important anyway. And there are no rights at all in a state of nature. It’s the law of the jungle. Rights are created by governments.

      Second of all, the Constitution does not “guarantee” rights, it creates them. As do other laws. And court decisions. Without a source of aw to protect a right, it is meaningless. If you feel you have a property right that supersedes the government’s ability to collect a tax from you, and the government does not recognize that right, good luck to you. You are going to lose and have your property levied upon.

      The Constitution creates a number of rights, and some of them are negative and some of them are positive. Period.

      1. Pay attention. I’ll TRY try dumb it down.

        First of all, there is no such thing as a natural right. There is no evidence of a god who intervenes in human affairs, and even if there is one, nobody can agree on what She considers important anyway

        The phrase has meant, for maybe 500 years, rights which are inherent in humankind, regardless of how humankind came to be.
        And, umm, AYN RAND WAS AN ATHEIST.

        The Constitution creates a number of rights, and some of them are negative and some of them are positive. Period

        Even though the Founders said the exact opposite? If only your brilliance was not over 200 years into the future. If only you’d been there to guide them. How much better America would be today!

        You say there is no God, and I agree. Then proclaim yourself to be one, and I deny you also. Period.

      2. “Second of all, the Constitution does not “guarantee” rights, it creates them.”

        That’s not what it says it does. You might as well just admit you have a big philosophical disagreement with the people who wrote the Constitution, which is fine, but they wrote it, not you.

  4. Isn’t this what privileges and immunities are? They are much clearer to my layman’s mind than positive and negative rights.

    1. I’m not sure that this is precisely the distinction captured by those terms. But in any event, people do often talk about “rights” — as to constitutions and laws — so we need to have a sense of what that term covers; and it turns out that it covers a lot.

    2. Positive and negative rights are (mostly) a game invented by an-caps to hide their authoritarian mentality, the notion that Non-Aggression is the sole right and all others derive from that.

      Today, it allows them to defend bans on marriage equality. In earlier days it would justify bans on inter-racial marriage, women’s suffrage and the like … while calling themselves anarchists! Trumpkins are far from the first totally gullible puppets. And like Trump, it’s all a game to justify denying individual rights.

      1. “An-caps”? Oh, anarcho-capitalists.

        Anyway, when it comes to the implications of the distinction between positive and negative rights, you’re cracked. Otherwise, too, possibly, but certainly in that context.

        1. Considering your MASSIVE screwup here:
          https://reason.com/volokh/2018/…..nt_7122322

          Closing your eyes, and/or denial, is not an argument.
          Anything else?

  5. I’ve always appreciated the wording of the Titles of Nobility portion of The Massachusetts Constitution of 1780 (which reads “No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public…”). Although the US Constitution precludes the issuance of titles of nobility (by states, through the Contracts Clause, and by the federal union, elsewhere), it does so without defining titles of nobility and without expressly clarifying that such titles cannot be bestowed upon corporations and associations.

  6. The inherent positive right in the American system is the right to have the government use its powers to secure your ability to exercise your “unalienable” rights, because that’s why we created and empowered it in the first place:

    “We hold these truths to be self-evident, 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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

    If there’s no positive right to government action in securing your individual rights — the “Blessings of Liberty,” in the phrasing of the Constitution — against other entities, then why would you need to create and empower a government to secure your rights by protecting you against…itself?

    1. The Constitution limits government powers to those delegated by the governed. It is through that limitation that we secure our rights, or hope to. That same Jefferson also noted that each generation must create its own Constitution. else we be governed by the consent of the dead. Sadly, he lost that argument. We are indeed governed bu the consent of those who dies over two centuries ago.

      1. Each generation is certainly entitled to craft its own constitution, but the constitution crafted by an earlier generation is certainly a better default if they don’t, than whatever the existing government decides to put in its place.

        1. Typical authoritarian defense for being governed by the consent of the dead, versus a government elected by the living. You reject Will of the People and Consent of the Governed. Thanks for admitting it publicly.

          I’ll take Jefferson over you. No offence intended.

          1. Mao was living at one time, So was Pol Pot. The rule of the living has it’s problems, too.

            My point is that the Constitution, while scarcely perfect, is better than just submitting to the will of those who thought a career in government was attractive.

            Which is the real option to the consent of the dead, unless we actually go and create that new Constitution. So, the existing constitution makes a great default constitution, barring us creating the new one.

            1. Mao was living at one time, So was Pol Pot.

              OMG. You think they had consent of the governed!!!

              The rule of the living has it’s problems, too.

              CONSENT of the living!

              My point is

              That you have no clue — and actual contempt — for Consent of the Governed and Will of the People.

              The Authoritrian Right in full display

              1. And here’s what you FAIL to even address.

                Typical authoritarian defense for being governed by the consent of the dead, versus a government elected by the living.

                Pol Pot had consent of the governed??

                1. I will, doubtless pointlessly, explain myself.

                  We have a Constitution written by the dead. The living who rule over us wish to be rid of it.

                  Their typical excuse for being rid of it, is that we should not be ruled by the dead hand of the past. But they don’t propose a constitutional convention resulting in a formal document which would be put up for ratification or rejection. Oh, no.

                  They simply wish to deprive that dead Constitution of any force, so that we will be ruled over by the living: Them.

                  Unless you’re proposing that each new generation literally draft a new constitution, we’re better off with that dead hand than their living hands.

                  1. I will, doubtless pointlessly, explain myself.

                    (OMG) You STILL refuse to address:

                    Typical authoritarian defense for being governed by the consent of the dead, versus a government elected by the living.

                    And DEFY individual liberty!

                    We have a Constitution written by the dead. The living who rule over us wish to be rid of it.

                    Who are you to DEFY Will of the People and Consent of the Governed, in your authoritarian demands?

                    They simply wish to deprive that dead Constitution of any force, so that we will be ruled over by the living: Them.

                    THE PEOPLE BEING GOVERNED!

                    Unless you’re proposing that each new generation literally draft a new constitution,

                    At the very start. But that does NOT mean literally drafting one from scratch. It means putting it lall on the table for consideration

                    we’re better off with that dead hand than their living hands.

                    TOTALLY shameful defiance of individual liberty.

    2. Moz, your question is a good one, and ought to come up more often, because modern thinkers about rights tend to differ from at least some of the founders on questions like yours. It’s a speculation?but not far-fetched on the basis of the historical record?that founder James Wilson, for instance, would have answered your question by asserting that the government is not the power which protects your rights. Your political rights are created, and are protected, not by government power, but by sovereign power. When the founders wrote “deriving their just powers from the consent of the governed,” what they had in mind was not merely the consent, but the decree and unlimited constitutive power, of the sovereign People.

      Whatever rights you have can be vindicated because the sovereign decrees them, and directs its government to enforce them. The founders’ political philosophy posited a government of limited power, but a sovereign with absolute power. Such a sovereign thus protects its subjects’ rights by staying the hand of government in the case of negative rights, or by compelling the hand of government in the case of positive rights.

      A good deal of Professor Volokh’s discussion might inflect differently if he were not conflating the government with the sovereign. The founders tended not to do that. Modern lawyers do it almost universally, and from time to time it creates some very muddled thinking about rights.

      1. Great argument. But sovereign power MAY be even more confusing than Creator ,… or Innate.

        1. Well, you could justify saying the notion of sovereign power is objectively confusing. It’s easy to show a lot of people are confused by it. Problem is, the sources of their confusion tend to lie among poorly-founded, long-standing, emotionally-held views to the contrary, which they picked up quite early in their educations.

          Upon examination, those habitual views turn out to be self-contradictory (at least), and also under-equipped to explain quite a bit about government which the notion of sovereign power explains easily. As someone who has been down the road to conversion, I suggest the result will more likely be a sense of relief from confusion than the contrary.

          1. Problem is, the sources of their confusion tend to lie among poorly-founded, long-standing, emotionally-held views to the contrary, which they picked up quite early in their educations.

            As opposed to smug intellectuals?
            Who blame readers for their own failure to communicate, knowingly.

            1. Nah, I haven’t failed to communicate. I haven’t tried to communicate. Two reasons:

              1. I’m talking to libertarians. You can show by history and reason that government without sovereignty is a contradiction in terms, but you can’t show it to a libertarian. Sovereignty is anathema to libertarians, so they refuse even to consider such arguments. And refuse more vehemently to attempt any theory of sovereignty of their own. Too bad for them, because without it they will never have any workable theory of government. That means no ability to compete politically. Without changing that, the better class of libertarians are doomed to be, at best, lightly heeded critics of others’ governments; the lesser class of libertarians will continue as cranks. That makes me sad, because quite often I like libertarian critiques. I would like to see libertarians do better and become more influential?but certainly less theoretical.

              2. Only 1500 characters. Nobody can get from a state of nature to limited government in 1500 characters, so I’m not going to try. And anyway, it has already been done beautifully. Go read Hobbes, James Wilson, and Michael Oakeshott.

              1. Nah, I haven’t failed to communicate. I haven’t tried to communicate.

                I noticed.

                Two reasons:

                One is that people are too stupid to appreciate you.

                >I’m talking to libertarians.

                How does insulting us advance your goal? We already have too many doing that.

                I would like to see libertarians do better and become more influential

                Smug and patronizing.. To do better, we need policy proposals for getting elected and governing. That means communicating with people, the very people you sneer at. You may or may not be an expert on government, but certainly unschooled on governing. And ….

                but certainly less theoretical.

                Starting when?
                Would you stand at a campaign rally, center stage, and say

                Go read Hobbes, James Wilson, and Michael Oakeshott.

                That was rhetorical.

                1. Michael, I don’t know about you, but I try hard to distinguish between “stupid” and “mistaken.” Sure, I think, and say, many libertarians think wrong, but mostly not because I think they are stupid. It’s possible to be brilliant, but persist stubbornly in errors after those become habitual. I’m sure I do it, because when I hear a better argument, it’s not uncommon for me to turn my thinking around after years (I’m 71 years old) of near-certainty to the contrary. A fairly recent example came thanks to Oakeshott, who I mentioned above, when I read his essay, “Rationalism in Politics.”

                  I believe?with a lot of other people?that many libertarians are stuck with ideas they learned to love early, and haven’t much critiqued since. (Who isn’t?) I suggest that has been particularly true on the subject of sovereignty?so badly addressed in K-12 during my lifetime as to amount almost to a secret. Another turnaround for me came when I discovered that James Wilson’s remarks on that subject explained away a host of confusions which I had accumulated while reading other founders. Turns out I was misreading them, because I didn’t know what they thought about sovereignty.

                  So my remark about talking to libertarians wasn’t meant to suggest they were stupid, but instead that it would take more characters than this forum provides to engage them properly. Of course, we can get those characters cumulatively if we keep the discussion going. I’m looking forward to it.

                  1. You just cannot help yourself/

                    Would you stand at a campaign rally, center stage, and say
                    Go read Hobbes, James Wilson, and Michael Oakeshott.?

                    1. Can’t figure out what you are getting at. Is it possible you are telling me that I must think of you as a member of a crowd at a campaign rally, and that like a hack politician I have to soft-soap you?

                    2. ? I must think of you as a member of a crowd at a campaign rally, and that like a hack politician I have to soft-soap you?

                      More smug patronizing Let’s reviews. Emphasis added.

                      I’m talking to libertarians.

                      How does insulting us advance your goal?

                      I would like to see libertarians do better and become more influential

                      Smug and patronizing.. To do better, we need policy proposals for getting elected and governing. That means communicating with people, the very people you sneer at.

                      but certainly less theoretical.

                      Starting when?
                      Would you stand at a campaign rally, center stage, and say”
                      “Go read Hobbes, James Wilson, and Michael Oakeshott.”

                      Libertarians should be less theoretical. ? by reading political theory,,,, NOT campaigning and … NEVER governing .

                      You confirm NO CLUE how to be non-theoretical to libertarians , RIDICULE the notion of even seeking election, let alone governing — which is “soft-soaping” people. And you cannot express HOW to achieve … anything. Thereby confirming “smug and patronizing”

                      You ridicule any attempt to achieve anything,. We can “become more influential” by … curling up and reading Hobbes!
                      That (but reading different books) is WHY we have ZERO influence.

  7. Has anyone mentioned the Sixth Amendment?

    “In all criminal prosecutions, the accused shall enjoy the right…to have compulsory process for obtaining witnesses in his favor…”

    That sounds like a right to have the courts order someone with relevant information to attend your trial as a witness, subject to imprisonment (as a general rule) if (s)he refuses.

    1. Ummm, it’s called a subpoena. And it says “in your favor” not “relevant information.”

      If I’m accused of murder, and somebody knows I was not even in the same state, you would allow me to be convicted? By what right?

    2. That’s one of those procedural positive rights the Constitution creates, like the right to trial by jury.

      And it nicely illustrates the general problem with positive rights, which is that they can only be satisfied by curtailing the negative rights of other people. To get you your positive right to obtain witnesses in your favor, said witnesses have to lose their negative right to just go on with their lives without showing up at the trial.

      That’s the general problem with all positive rights, they always involve reducing negative rights. If you have a right to food, somebody has to provide it…

      1. Brett, you seem to be conflating rights and preferences. I agree with Professor Volokh that “rights” is a term with some elasticity in it, but I don’t think it stretches that far.

      2. Which is why nobody has a right to food!

  8. ” Rather, protecting them necessarily involves positive rights to have the government provide some such protection (through courts, through the military, and through the police and similar institutions), at least in the view of the American legal tradition.”

    Are you saying that Warren v. District of Columbia was decided incorrectly?

    1. He seems to be (gently) ridiculing the Rothbardians/an-caps, etc., who invented the positive/negative rights nonsense … which makes no sense even in their CURRENT (bastardized) anarchism … but they use it to bludgeon non-anarchists,REJECTING our right to form voluntary associations. One need not use force to evince an authoritarian (controlling) mentality. That’s the theory (as I see it)

      He gave examples of WHY we have positive rights. The an-cap fallacy is that positive rights are when people are REQUIRED to provide us with something. The military ended its draft. Police and judges never had one. It’s an exchange no different than any marketplace. We want a service, are willing to pay for it, and others provide it willingly..

      Sorry, a bit more, to get of the blind alley I’m in.!

      “AHA,” screech the an-caps, “ALL TAXATION IS THEFT.” Sadly non anarchists fall for that one. Taxes are NOT theft to the vast majority of “the people.” So an-caps are demanding MINORITY RULE. America is like Kiwanis, just more complex. If you disagree with the policies, your free to leave! They have an entitlement mentality, sucking the teat of America’s liberty and prosperity. freely provided by the same majority they assail

      “Consent of the governed”– the core for both Jefferson and Rand. An-caps deny our right to CONSENT.

Please to post comments

Comments are closed.