Saturday, November 1, 2008

"Negative" Rights

Another buzz in the campaign is the recently released (and much less damning, but still damning) 2001 radio interview with then-State Senator Obama regarding the make up of the US Constitution. Obama laments that there are only "negative" rights conferred upon the people by the Constitution. To be honest, I'm not a Constitutional Attorney so I have never heard the term "Negative Rights", but I instantly knew what Obama meant when he brought the term up. Government, as the Framers intended, was to be passive in what it could do to the American people - and that protecting individuals from its encroachment was the main thrust of the Bill of Rights, an important part of its (the Constitution's) passage.

Obama doesn't like this limitation. What can government do - rather, what should or must government do - on behalf of the people. What about "positive rights"?

You can begin to deconstruct the argument for "positive rights" by reading Federalist 10 by James Madison, when he states that "…measures are too often decided…by the superior force of an interested and overbearing majority", making the case to steer away from the mob rule of true democracy and toward representative republicanism. Further with regards to decisions of taxation, Madison added "…there is…no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets" Madison was succintly speaking of wealth and the tendancies of those who have very little of it to try to use the force of government to take from those who have more (the concept of Negative Rights is one that is not limited to protection of property, but obviously speech, religion, right to bear arms, etc. I'm going somewhere by focusing on the wealth issue).

In other words, the Framers were acutely aware of the value of property and the precariousness of its possession in a nation governed by mobs or Leviathans. Its worthwhile to note that, during the time of the American Revolution, John Locke's Two Treatises of Government was the reading rage. Its concepts were part of the fuel of the Revolution. This can be seen in the Declaration of Independence. We are all very familiar with the phrase "Life, Liberty and The Pursuit of Happiness." This phrase was influenced by Locke's "Life, Liberty, and Property." So, the Framers were obviously very concerned about the protection of an individual's wealth from a tyrannical majority enabled by an unchecked government.

Why didn't the Framers grant "positive rights" to the Government, so that it could act in benevolence on behalf of the people? Because the only way a government could grant rights in this manner was through the confiscation of property (ie, wealth) and redistributing it. Then, it would not only be the force of the mob but the very essence of our Governement - theft. As Madison points to above, this was a real concern in 1789.

Couple of things in this regard. First, Obama's desire to see "Positive Rights" Enumerated or clearly implied in the Constitution points to the importance of Strict Constructionism in reading and interpreting it. Once one abandons looking at the letter of the law as written and understanding its meaning through understanding Original Intent, then we, in effect, no longer have a Constitution but are very much governed by the whims of the mob that the Founders feared. If you are not going read the Constitution and apply it at face value, what good is even having a Constitution?

Second, and something very important as we go to the polls in a few days - there have been several concerns raised about the type of Justices that a President Obama (shudder) would appoint to the Courts. There is every reason to believe that the proponents of the "Living Constitution" - the exact opposite of Strict Constructionism - are on Obama's short list for appointment. Within 10 years after Obama's first inauguration, we could see a court filled with loons who master at torturing the language of the Founding Document to see an implied "right to free health care" or "right to paid secondary education" or "right to a government supplied IUD" blah blah....without adding a Second Bill of Rights. Positive Rights, we'd discover, were implied in the text, right under our noses all these nearly 250 years.

If Obama and his Ilk are unhappy with the absence of a list of "Positive Rights" in the Constitution, there is a perfectly reasonable and valid process to get them into the Constitution... we'll refer to it hereafter as the AMENDMENT PROCESS. People can make the claim that the ideas of the Founders are outdated and that we shouldn't be constrained by them. I disagree, but fair enough... if you feel that way, try ramming your Second Bill of Rights through 3/4 of the State Legislatures. Let me know how that goes, will you, Barry?

(thanks to for the cut and paste of the text of Federalist 10. Also, Sam Ryskind's cartoon above - "Fresh Meat" link to the right - inspired this post).