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U.S. Constitution Title: Principles of constitutionalism: negative rights versus positive rights http://www.renewamerica.com Principles of constitutionalism: negative rights versus positive rights By Tim Dunkin It has previously been shown that constitutionalism, by which is meant the general proposition that government should be restrained by well-defined principles and structures under which it operates (whether written or unwritten), depends up a recognition of the rule of law as reflecting natural law. From this natural law arises the recognition, in turn, of the natural rights of individual citizens, which ought to be acknowledged and protected by just government, but which are not granted by any government. These principles, perhaps, find their purest distillation in the American Constitution, a short and simple document which provides a succinct summation of both the natural rights it affirms and a structure of government designed to preserve liberty. This basis in natural law explains one of the greatest divides between the broad Left and Right, and shows us why one side (the Right) fights to hold onto our Constitution, while the other (the Left) fights to destroy it. In many ways, what it all really comes down to is whether the rights that every individual has, and should enjoy, are "negative" or "positive" in nature, whether they are primarily "defensive" or "proactive." Those of us on the Right – liberty-lovers, traditionalists, conservatives, and the like – tend to understand that the rights we have and which are affirmed in the Constitution are "negative" in character. What this means is that rights are viewed primarily as affirming things that other people, in the form of the commonwealth or government, cannot do to the individual possessing those rights. Even when couched in "positive" terms, a negative view of rights understands them to be primarily about restricting others from infringing those rights. For instance, we often talk of "free speech," and it is often affirmed to mean "being able to say what I want." Yet, what we're really looking at with this is "the government cannot stop me from saying what I want." Likewise, the right to keep and bear arms involves the government being restrained from disarming or otherwise hindering the people from arming themselves for self-defense of every sort. As such, a "negative" view of rights understands that government is, or at least constantly has the potential to be, the aggressor against the free exercise and enjoyment of our liberties by the people. Affirming a negative view of rights is to proclaim that the government cannot do such-and-such against the individual, his or her property, or his or her person, nor against such voluntary associations as he or she may see fit to join themselves to. Those on the Left – "progressives," liberals, socialists, and so forth – absolutely hate this view of individual rights. In its place, they prefer a "positive" view of rights as being that which the government or society can compel the individual to do, or to provide for others. This is why those on the Left often speak of "rights" to health care, housing, a "living wage," and whatever else. These are all "rights" that allow, and indeed require, the government to step in and provide for some by taking away from others. The "positive" sense comes in that individuals have the "right" to get government to something for them. Obviously, this understanding of rights, far from limiting the aggression of government, encourages it and removes restraints from it. That is why liberals so terribly hate the United States Constitution, except in those few instances where they can (inconsistently) hide behind some of its provisions as the circumstances may suit. Liberals hate a document that exists primarily to prevent government from doing the very things – wealth redistribution, coercion to conform to top-down social standards from a small vanguard "elite" – that they most dearly want government to be doing. Yet, you cannot have genuine constitutionalism and have a "positive" view of rights at the same time. By their very nature, positive "rights" defy the rule of law, as they necessarily involve one faction using the coercive power of government to force some program onto another group, or to take wealth and property away from one to give to another. This is the very antithesis of a rule of law scenario in which the law applies equally to all and in which neither overarching law nor individual statutes exist at the behest of some small group within society. When you take from one to give to another, you are using unequal law to benefit the one over and against the other. You do not have the rule of law any longer. Further, natural rights are incompatible with positive rights. Positive rights practically require that some individuals sacrifice the possession of their property – whether material or moral – so that others can gain. When a business or individual is taxed so that the monies can be transferred as welfare payments to others, the individuals being taxed are being deprived of their property. When a small faction of gay activists use the coercive power of government to force bakers and florists to provide services to them, they are stealing away the intangible, yet very real, liberty of these other individuals to associate with whom they choose and to make their own decisions about what they approve or don't approve of. This is why liberals hate natural law theory and want to replace it with legal positivism. Natural law restrains aggressors from using the force of government to take from others or to force others to adhere to certain "preferred" viewpoints. Legal positivism, on the other hands, allows whatever big government clique that gets into power to excuse any and all intrusions into the private realm of the individual's life, so long as a fig leaf of "social" or legal justification can be provided. Natural law says, for instance, that gays can't force bakers to bake cakes for them, even should the baker not desire to do so because of "discrimination." Legal positivism and "positive" rights say that gays can compel people who disagree with them, regardless of what they think of the matter. Natural and negative rights provide for a free, voluntary society, while legal positivism and positive rights provide for a coercive, totalitarian society. © Tim Dunkin Notice anything wrong? Send Silk feedback
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#1. To: tpaine (#0)
(Edited)
We are heading toward a society where everybody owns everybody else, but nobody owns themselves.
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