The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Positive rights in the Framing era
"Right" means many things, and has long meant many things.
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.
