Positive and Negative Liberties: What Our Government Should Do

From time to time, I get really thoughtful comments that make me want to respond a little more thoroughly than a usual quick reply, and unfortunately the WordPress system doesn’t allow for any sort of direct reply or notification.  I got one of those comments the other day from reader Teresa on this post, and so I thought I’d post my reply here.  It raises some interesting questions.

Yes, I think our descendants will be embarrassed about a number of things happening now. You bring up that there is a difference between a constitution and democracy, and that’s something most Americans probably wouldn’t think about. The Constitution lists what the government cannot do to us, while “democracy” is focused almost entirely at this time on what the government should be doing for us.

Obama has picked up FDR’s idea for a second Bill of Rights to give the country a “positive” list of what the government must do rather than what it must not do. Included in the list are things like jobs and houses and health care and education. But are those correctly labeled as “rights”? I understand a right as something natural that doesn’t impinge on another. If we guarantee everyone a satisfying job or house, then that means government must force someone else to provide it. I honestly don’t think most Americans have fully considered what Obama is proposing, or they are so stunned they don’t believe he will pursue these things.

The notion that Obama or his supporters would support the right to a job or housing or health care and construct the government machinery to strip mine the country for the resources but not the right to marry is outrageous, and I marvel still at the coalition of constituencies that gave him the election while denying this basic human right to the LGBT. Freedom and equality are not the same thing. Often they are contradictory, with freedom being the riskier, and only truly democratic ideal.

So what is a right?  The classic notion is that for someone to have a right, someone else must have a corresponding duty.  At the time of this country’s founding, the Framers were thinking about negative liberties in the context of an aggressive, intrusive imperial government.  The duty of the government was simply to stay the hell out – don’t stop people from speaking, from practicing their religion, from electing representatives.  These were freedoms from intrusion, not freedoms to a particular object.  One man’s right ended where another’s began.

But then socialism began to ascend, along with the idea of a state that has a positive duty to provide certain benefits to its citizens, whether that be health care, a living wage, or education.  People started talking about economic, social, and cultural rights.  Personally, I’m a strong believer in these rights, and in the idea that the state, to the extent of its resources, has a duty to provide them.  So my idea of rights does include jobs, houses, health care, and education, not only the “natural rights.”

Still, the “to the extent of its resources” bit is crucial.  I tend to support politicians that I think lean towards my socialist ideology, which includes providing to the citizens.  I also recognize that no politician can actually provide health care for all, quality education for all, a house for every citizen or a job for every citizen.  I think we should work towards these goals, but we don’t have the resources to achieve them.  We can’t achieve world peace, either, but does that mean that constantly working towards it is a waste of time?  I don’t think so.

I agree with Teresa, though, that it’s interesting that people would simultaneously vote for a candidate who is trying to assure everyone these positive economic, social, and cultural rights and vote against propositions that simply assure everyone the civil and political right to be left alone.  The right to marry does generally fall under positive rights, but as the Supreme Court has recognized there is a big difference between not having the resources to provide a service at all and having the resources but excluding only one group from its benefits.  I do see how this particular fight can fall into the category of government intrusion into individuals’ private lives, and I find it upsetting that the people of several states have decided this election to allow it.

About Avory

Avory Faucette is a queer feminist activist, writer, and public speaker. Zie graduated from the University of Iowa with a JD in 2009, focusing on international human rights and gender/sexuality issues in the law. Hir current work focuses on queer identity, policy, and marginalized identities under the queer umbrella. As a genderqueer person, zie comments frequently on non-binary identity, transgender and genderqueer issues, and media coverage of these populations. Zie also speaks at colleges, universities, and events on transgender and queer issues and conducts trainings on related topics.

Posted on November 12, 2008, in human rights, law & politics and tagged , , , , , , , , , . Bookmark the permalink. Leave a comment.

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