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.

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  1. “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. 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. “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.

  3. 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.

  4. 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.

  5. 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. 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.

  6. 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. 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.

  7. ” 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?

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