Just Say No to Positive Rights

by Matt Cavedon

The Center for Economic and Social Rights (CESR) says that “the United States stands virtually alone in the world as an opponent of economic and social rights,” and that this is especially troubling in the face of calls for government austerity, which threatens the “inherent human rights” of the poor to public assistance. How can this be possible in the country with the first written, constitutional Bill of Rights in the world?

It’s true that many systems do enshrine economic and social rights, which CESR defines as “essential to human dignity,” including education, health, food, water housing, and work: South Africa’s constitution protects the right to housing, Finland recognizes a right to broadband internet, and 160 countries have ratified a U.N. convention guaranteeing everyone’s right to “the continuous improvement of living conditions.” The closest the American constitution comes to protecting an economic right is giving Congress the power to establish post offices and roads.

As long as the aim of the Constitution is to limit the government, the absence of economic and social rights makes good sense. Economic and social rights empower governments to grow without limit, and to make tradeoffs between rights. If America wants limited government and secure rights, it must continue to reject economic and social rights.

The Constitution limits the federal government through its system of enumerated powers: every action or policy of the government must be grounded in a power specified in the Constitution. There are only a set number of aims that the government can constitutionally pursue, like national defense and orderly interstate commerce. The Constitution does not provide a right to everything “essential to human dignity,” as CESR puts it. Instead, it narrows the scope of the federal government to those things which the Framers thought reasonably necessary for national life, and that they thought only the federal government could provide. The Framers deemed this approach essential for “promoting the general welfare,” and “securing the blessings of liberty.” Most Americans evidently still agree with them.

It’s true that the Constitution does place some positive obligations on the government, as would the rights endorsed by CESR (“education, health, food, water housing, work, and other economic, social and cultural rights essential to human dignity”) and others on the legal left. Take the Sixth Amendment, for example: the government has the obligation to provide citizens with a trial by jury and access to counsel when they are accused of crimes. But the positive rights secured by the Constitution are procedural or political, not economic and social. They are limited by the ways in which the government interacts with citizens in pursuing its specified ends. Negative rights, which make up most of the Bill of Rights, work in the same way. To put it more simply, the right to vote at age 18 can only take place in the context of an election, and the right to speak freely can only serve as a limit on government power. Neither of these rights creates an open-ended power for government.

Trying to secure economic and social rights, on the other hand, is incompatible with the idea of enumerated powers. There is no limit to what sorts of material things could further human flourishing. If housing, why not homeownership? If internet, why not television? Once the right to the continuous improvement of living conditions is guaranteed, then the government has unlimited power to define and pursue “improvement” in “living conditions.” The Constitution stops serving as a limit on government power, and starts becoming an excuse for expanding it.

At that point, economic and social “rights” lose their bite, because they stop serving as clear demands that people can make to the government. Imagine, for example, that the Constitution guaranteed rights to housing, food, and property. One person would claim the right to a home. The government could then go out to build public housing. First, though, it would need land. It would get it by using eminent domain; surely, securing people’s rights is a public use of property. What would become of the previous landowner’s property right? It would be swept away.

Next, let’s assume that citizens in another state were going hungry. Asserting their right to food, they could make the government fund a soup kitchen. But, after spending more money on the military, the Foreign Service, and the post office than taxes brought in, the government hits a deficit. It could decide to cut funding from public housing…

In the end, no one really has a right at all. The only thing that the three rights do is serve as guideposts for government power, not limits on it. The Constitution is no longer limiting government power, as much as giving the government the power to decide how to balance people’s “rights.” The rights have no independent existence of their own – they are mere promises that citizens can hope government will find the means and the desire to fulfill.

This kind of hollow restraint on government, and helplessness citizenship, is precisely what the Framers sought to avoid. The American constitution may not have all the high-minded economic and social rights popular on the Left, but it does limit government power and secure rights. For the sake of the general welfare and the blessings of liberty, Americans can appreciate that.


  1. What would CESR have us do? Amend the Constitution? They seem to forget we already have an expansive view of the Commerce Clause, not to mention a Due Process Clause (Goldberg v. Kelly, especially).

  2. Piero Tozzi says:

    The distinction between rights grounded in “the laws of Nature and Nature’s God” — i.e, , “negative rights” which the government must recognize and which serve as a restraint on government power — and “positive rights” which a government can grant as well as take away or condition is extremely important.

    Here are some further thoughts on the subject as it relates to major human rights instruments: http://www.turtlebayandbeyond.org/2012/human-rights/not-rights-vs-freedom-reclaiming-the-universal-declaration-from-the-left-and-defending-it-from-the-right/

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