Without a foundation we have nothing. Without a foundation, you can’t build a home, understand issues, or even see your own contradictions! My goal is to lay out explanations for the basic principles our country was founded on so we can cut through the noise and truly discover what we believe. Everyone has a right to his/her opinion, but many times an opinion can be based on a faulty assumption of a principle. In this first article of a series, I’ll be revisiting from time to time, I’d like to discuss the foundation of a “right”. What is a right? Where do our rights come from? How are they protected? What is the limit of a right, and what kinds of rights are there?
The most important thing to realize is a “right” can be either positive or negative. At times the combination of positive and negative rights can yield fantastic results. In Miranda rights, for example, you “…have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney one will be provided to you…”. Within those sentences, a negative and a positive right are combined to provide protection under the law. The negative right is innate within yourself “you have the right to remain silent…” essentially stating that you are not forced to speak unless you choose to do so. Only your actions or thoughts can affect a negative right. A negative right is also commonly referred to as a liberty.
A positive right is much more complicated because it imposes actions on other people. Taking the Miranda rights example you can see that the second right listed is a positive right. “You have the right to an attorney.” Within this right is an imposition on someone other than you. This right states that a lawyer has to defend your actions, regardless of their personal feelings. This right contains two options, enter into a mutual contract with a lawyer to defend you or call upon the local or federal government to provide a lawyer to defend you. The first option is actually in line with a negative right, considering the fact both parties must agree upon terms for a mutually beneficial outcome. The second option is where the larger implications can be tricky. Having a lawyer defend you assumes that there are lawyers. With our society, there’s no current worry of running out of lawyers, but hypothetically if we were to run out of lawyers then the supply would no longer meet the demand. The right of a lawyer would still need to be filled, however, and therefore the government could force an individual to defend you. It’s important to understand that public defenders in our current system are employed by the state, either directly or through contracts, which don’t currently interfere with their right of association.
For a real world example of positive versus negative rights let’s turn to the case of the Christian photographer that refused to partake in a wedding of two males. This is where court rulings and a fundamental misunderstanding of rights can cause real harm. If you’re not familiar with this case essentially what happened was a photographer was asked to film a wedding involving two males and the photographer politely declined. This case was taken to the courts and ruled in favor of the couple. Many have focused on the photographer, missing the entire point. This court ruling essentially stated that private businesses do not have a right to refuse service to any legally protected group. The overall problem with this ruling is that it opens the door for increased government involvement in private business. This case and many others like it have set precedent for anything to be defined as a positive right.
Protecting liberties (negative rights) was the ultimate goal of the founders and that is evident by reading through the original ten amendments of the United States constitution. The first ten amendments to the constitution consistently call upon the government to protect the inherent rights of the people, not establish services to give to the people. Later amendments call to enforce positive rights and rights of government itself. That is an issue for another day, but reveals that politicians very quickly lost the understanding of the government’s responsibility to the people.
Lastly, and most importantly, we need to decide where rights come from. Do they come from a creator, government, an individual or democratic rule? Our founders were very clear on the subject, reading through the Declaration of Independence we see the belief they held “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.” Discussions can certainly be made as to what specific founders believed, but the consensus they reached was that for the establishment of a constitutional republic the rights of the people had to come from an outside source. If rights had come from the government than each amendment would generally read “Congress shall establish…” implying that these rights can be suspended or abolished depending on elections. When rights are created by an individual there are no rules. A dictator can establish rights to certain people or groups and use any means necessary to enforce or deny those rights. This is seen throughout history whether it involves Saddam Hussein, Adolf Hitler, Mao Zedong, or Che Guevara the result is murder without trials and for unjust reasons. As relentless as dictators can be in deciding rights a democratic decision to grant rights can be equally misguided, although in most cases certainly not intentionally deadly or unjust.
Democratically granted rights are routinely cited for the good of the people, and often have a misinterpretation between a positive and a negative right. A more recent example of this would come from the right to healthcare or the right to a job as proposed by Bernie Sanders and Franklin D. Roosevelt, respectively. On the surface “the right to healthcare” seems like a straightforward statement. Every citizen should be treated. But digging deeper we see that this can be interpreted two ways, using either the negative right or positive right definitions. If the negative is true then I have a right to healthcare if I choose to seek it. My decision to seek health care or health insurance does not impose action because any decision would be a mutual agreement between two parties. If the positive is true, however, then I have a right to healthcare and you must provide it. In this case, my lack of healthcare or health insurance is a gap that must be filled either voluntarily or involuntarily. Similar to being provided a lawyer, a doctor must be assigned to me regardless of my ability to form a mutual agreement (pay). With the combination of obligation and assignment, it’s clear that the positive right of health care interferes with the negative right of association of the doctor.
Understanding these differences is crucial in determining what you believe and why you believe it. Some of you may, in fact, believe that impositions are in the best interest of the people and therefore support what are commonly referred to as 3rd generation rights. Others may believe that imposing action on other people is immoral or unjust and therefore support the notion that protection of a negative right is the only role of the government. Either view is a kind of journey and lays the framework for nearly all other political opinions. Take a journey, see where you land.
Sources: http://www.learnliberty.org/videos/positive-rights-vs-negative-rights/
http://www.mirandawarning.org/whatareyourmirandarights.html
