When Supreme Court Justice Anthony Kennedy announced his planned retirement from the Court, progressives around the country expressed despair and panic. Many lamented how landmark Court decisions such as Roe v. Wade could be overturned. A common element of these lamentations has been an explicit reference to human rights, which is the focus of a recent opinion piece in the New York Times by Senate minority leader Chuck Schumer entitled, “Our Rights Hang in the Balance.” 

Regarding the appointment of a new Supreme Court Justice, Schumer argues: “Enormously important issues hang in the balance: the right of workers to organize . . . the right of Americans to marry who they love, the right to vote,” in addition to a woman’s right to have an abortion and the right to affordable health care.

But when people talk about “rights,” what do they really mean?

In general, rights can be categorized as either “negative” or “positive.” All rights create a corresponding duty for other people, but negative rights restrict the actions of others. For example, because I have a right to my property, no one should steal from me. In contrast, positive rights obligate others to act in some way. Thus, a right to healthcare would mean someone must provide it for me.

Most modern progressives believe that every man has positive rights relating to personal happiness and economic security. This is expressed in Franklin Delano Roosevelt’s “Second Bill of Rights,” where he enumerated certain rights without which, he believed, a man cannot be truly free. Such rights include:

  • “The right to earn enough to provide adequate food and clothing and recreation”
  • “The right of every family to a decent home”
  • “The right to adequate medical care and the opportunity to achieve and enjoy good health”
  • “The right to a good education”

It’s easy to see how pushes for the government to provide universal healthcare and tuition-free college are based on beliefs in these positive rights.

However, this idea creates problems, largely because any opposition to government programs designed to ensure these positive rights can be interpreted as an attack on human freedom. Some even view opposition to government welfare programs as attempted murder. This helps explain why radical groups like Antifa violently demonstrate in the streets and politicians like Maxine Waters call for physical retaliation against members of President Trump’s administration.

Following the July 4th holiday, social media was full of individuals trying to justify violent resistance by pointing out that America became a country by violently resisting Britain.

But does the modern progressive focus on positive rights match the principles of the American Founding that primarily focus on negative rights?

In the Declaration of Independence, the founders assert that King George III committed “a long train of abuses and usurpations” that violated their divinely-bestowed natural rights. Appealing to Nature and a Creator was necessary to provide justification for the rebellion. In doing so, the founders drew from the thinking of English philosopher John Locke, who wrote:

“The state of nature has a law of nature to govern it, which obliges everyone: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”

In the Founding era, Americans were trying to protect their natural rights such as the freedom of speech and the freedom to practice their religion without persecution. In this regard, the negative rights associated with the American Revolution appear to be dramatically different from the positive rights many contemporary Americans call for.

But do people have rights to things like healthcare and college education? It depends on where you think rights come from. As philosophy professor Shannon Holzer writes: 

“While America on the surface seems to be divided merely over current moral issues, we are really a nation divided over the first principles of what grounds our government. Are we a nation that fights to preserve the rights with which God has endowed us? Or, are we a nation that votes on what rights to confer upon ourselves? If we affirm the former, then we can expect a stable government that will endeavor to protect the unchanging rights we naturally possess. If we affirm the latter, then we can expect our government to ‘be changed for light and transient causes’ to fit the arbitrary whims that hover above foundation-less rights.”

It certainly seems America has strayed from viewing natural rights as grounded in a divine Creator. Instead, they are in favor of whatever they think is necessary to be economically secure.

What rights do you think our government should be protecting? Furthermore, what would the founders say about the political tension which these different views of rights are causing in modern society?

—

[Image credit: Flickr – User: Steve Garfield CC BY-SA 2.0]