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RIGHTS AND WRONGS

After living through the dark days of prohibition in Springfield, Homer Simpson held his glass high and offered a toast: “To alcohol, the cause of, and solution to, all of life’s problems.”1 In many respects, Homer’s take on alcohol is what Americans should think about rights; they are both the cause of and solution to most of our political problems.

This starts to become clear when we consider the relative merits of cooperation and coercion, and how these two things play out in our daily lives. At some point in our history we decided that the coercive power of government should be used to achieve good outcomes rather than merely to prevent bad ones. This newfound optimism regarding what government could be expected to accomplish replaced the previous, more pessimistic view, which understood government to be a necessary but dangerous thing. In short, we traded in Tom Paine and Thomas Jefferson for FDR. That shift played out slowly over generations.

And as it did, our understanding of rights changed, too, resulting in any number of unintended consequences.

What Are Rights?

An examination of the history of rights in the United States reveals a massive shift in the language we use. The word rights now encompasses far more than it did earlier in our history. The thoroughgoing expansion of the term’s meaning has caused us to lose sight of why rights were central to the American experiment in the first place, and of the role they were supposed to play in our political life.

By the time Thomas Jefferson wrote the Declaration of Independence in 1776, the word rights was in the American vernacular. This was due, in no small part, to the hostilities with Great Britain. In Jefferson’s time and for a while beyond, the concept of a right was straightforward: a right was a part of human life that lay outside of government control. To define a right was to create a zone of noninterference for citizens where their government was concerned.

The sense of noninterference was so ingrained that Alexander Hamilton, in Federalist 84, argued against including a Bill of Rights in the Constitution because people might misinterpret its presence to imply that the Constitution defined what the government may not do rather than what it may do. It turns out that Hamilton’s concern was well placed. Today, many people, including many elected officials, regard the Bill of Rights as a list of freedoms that government grants to the people rather than as a list of restrictions people impose on government.

In the Declaration, Jefferson introduced the idea of rights by discussing their origins and nature rather than by offering an exhaustive list of what they included. He famously wrote,

“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.”

Following this, he explained the proper role of government, which was nothing other than to secure the rights of individuals:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The shift in our conception of rights has led to a virtually limitless federal government

In the Jeffersonian formulation, rights are both natural and negative. Natural rights are rights people have by virtue of their humanity. Because natural rights arise from our nature as humans, they precede government and render humans fundamentally equal. When governments enact laws to treat people equally under the law, they are not bestowing equality; they are recog-

nizing it. As Jefferson said elsewhere, “The mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.”2 No one can lay claim to the right of ruling, and all enjoy the same fundamental rights.

Because natural rights all stand athwart governmental intrusion into the private sphere, they are relatively easy to name.

Most Americans list them when asked what rights they have, and at least some of them appear in the Bill of Rights, which was ratified in 1791.

These sorts of rights—like the rights to free speech, to freedom of religion, to keep and bear arms, and to freedom of the press—protect Americans not from one another but from their government. One can exercise these rights without making any claim against other citizens. Sure, it may be irritating to listen to your neighbor exercise his right to free speech, and you might worry if he exercises his right to keep and bear arms, but these rights do not require some citizens to pay a subsidy for others to enjoy their rights.

So in addition to being natural rights, they are also negative rights. The most common formulation to explain such rights is that they provide “freedom from” governmental intervention.

The word negative contains no pejorative element here, just as there is nothing pejorative about referring to the negative pole on a battery. But the existence of negative rights points to the possibility of a different kind of rights—positive rights.

Where negative rights are “freedom from” rights, positive rights are typically described as “freedom to” rights. We hear about these kinds of rights all the time in today’s political discourse. How often do you hear politicians and pundits declare that every American should have a right to healthcare, or a college education, or even an income?

Positive rights are an entirely different animal from negative rights. If you have the right to something, that places a duty on others to provide it. And unlike negative rights, positive rights do not disempower the government in the least. In fact, they enable, even require, government to do all sorts of things, typically in the name of enhancing the welfare of the citizenry.

It is in the difference between these two kinds of rights that we find the fundamental friction of American political life. On one hand, the nation was founded on a set of rights that disallows the government from doing things. On the other, we find citizens calling for a set of rights that requires the government to do things. And the things the government must do in pursuance of positive rights violate people’s negative rights.

Consider the negative right of owning property. By working, people earn money. That is their property. The government has no right to take their property except through taxation, which is then used to address common needs, things like federal courthouses, post offices, and the military—things that the federal government is constitutionally empowered to provide.

In an environment of negative rights, a limited government necessarily results. But in an environment of positive rights, a very large and powerful government emerges. Look at the drivers of big government over the past several decades and you’ll find many programs set up to deliver on positive rights, including Social Security, Medicare, Medicaid, and the Affordable Care Act. Such programs have fundamentally changed both the nature of American government and what citizens expect government to accomplish.

The shift in our conception of rights from the negative to the positive has led to a federal government that is virtually limitless in what it attempts.

Reconciling Negative and Positive Rights

Can negative and positive rights coexist? The short answer to this question is no, because every advance in positive rights diminishes negative rights, if only in terms of property rights. But the long answer is more complex, and more interesting.

The United States, from its earliest history, has tried to reconcile negative and positive formulations of rights, and it has had quite a bit of success in doing so. While Thomas Jefferson supported limited government and negative rights, he also supported public education, which means that he perceived education to be a positive right. Someone must pay for schools, and a hallmark of positive rights is the need for some to pay the cost for others. Jefferson’s proposed 1779 legislation, “A Bill for the More General Diffusion of Knowledge,” was quite limited in scope compared to what we now do in the name of public education—it was to provide only three years of tax-funded schooling for “all the free children, male and female.” Nonetheless, it illustrates that, right from the beginning, Americans struggled with the question of just how much government should attempt to accomplish.

The desire for positive rights emerged early in American history, but it took a fair amount of time before this desire overtook Americans’ commitment to negative rights. At some point, though, enough voters decided that government was less a thing to be frightened of than a tool with which they might accomplish all manner of good. To get a good deal more in terms of positive rights than the minimal version they had previously experienced, the people had to give up their negative rights to some degree.

Put another way, the potential for cooperation among people had to give way to a greater level of coercion.

This shift in political thought makes perfect sense in the context of history. People understandably wanted certain guarantees in their lives, be it in the form of guaranteed healthcare, housing, or some other desired outcome. Cooperation, after all, doesn’t guarantee outcomes; it simply creates a context within which good things that people want might emerge. What are we to do when these things do not emerge, or do not emerge in sufficient quantity for everyone to enjoy? Coercion can, to some degree, offer a guarantee of results.

The people’s desire for a “full implementation” of the positive rights regime had become evident by 1944, when President Franklin Roosevelt offered a new vision to the American people in that year’s State of the Union address. Roosevelt offered what has come to be known as the Second, or Economic, Bill of Rights. To push his economic plan, Roosevelt co-opted the language of the Bill of Rights. But where the Bill of Rights almost exclusively protected negative rights by enumerating things the government may not do to people, Roosevelt’s Second Bill of Rights entrenched positive rights by describing things the government should do for people. Roosevelt’s list:

Everyone might agree that these are good things and that the world would be wonderful if everyone had them. But to categorize these as “rights” is to claim that the government should use coercive force to take from some people whatever is needed to supply these things to others.

Something had clearly flowered by 1944. The positive rights FDR listed inspired politicians to bring into being any number of federal programs. Social Security, Medicare, Medicaid, the Affordable Care Act, and Unemployment Insurance, along with a host of smaller programs, are direct outgrowths of the change in America’s political orientation toward positive rights.

The scope of this change is clear in the data. Government spending as a fraction of all spending in the economy reveals the magnitude of the government’s role in the economy. Since 1792, there have been three periods in U.S. history when government spending rose precipitously: the Civil War, World War I, and World War II. In each case, government spending, as a fraction of all spending in the economy, jumped between fiveand eightfold for the duration of the war.

To get a clearer picture of the expansion of government over time, we can remove the wars to reveal a more general trend.

From 1792 until 1928—a period of more than 130 years— federal government spending remained relatively stable at about

Government Spending as Fraction of All Spending in the Economy (1792–2017)

45%

40%

35%

30%

25%

20%

15%

10%

5%

0%

Data sources: Office of Management and Budget, Federal Reserve Bank of St. Louis

2.5 percent of all spending in the economy. But from just before the time that Franklin Roosevelt became president in 1932, government spending began to grow—from less than 3 percent of the economy prior to 1928, to 10 percent in the 1930s, to 17 percent in the 1950s, to 22 percent today. The growth of government spending has happened as a direct result of the expansion of positive rights and the government apparatus necessary to implement those rights.

Data sources: Office of Management and Budget, Federal Reserve Bank of St. Louis

Government Spending as Fraction of All Spending in the

Economy (1792–2017) (major wars removed)

25%

20%

15%

10%

5%

0%

We can turn away from economic measures and still see this phenomenon. Consider the Code of Federal Regulations, the compendium of all the federal government’s regulations on American citizens and others living within U.S. borders. When first published—not surprisingly, also in the 1930s—the Code contained about 18,000 pages of printed regulations, which seemed quite a lot at the time. Now there are almost 200,000 pages.

Data sources: Office of Management and Budget, Federal Reserve Bank of St. Louis

Pages in the Code of Federal Regulations

(1950–2017)

200,000

180,000

160,000

140,000

120,000

100,000

80,000

60,000

40,000

20,000

0

Whatever else it says, this growth clearly shows that Americans both wanted and invited government to become a much bigger part of their lives to accomplish any number of goals. And this meant moving away from a more cooperative model of the world to a more coercive one.

Embracing positive rights as a means of directing people’s activities toward desirable ends put a palatable, even attractive, sheen on coercion.

Cooperation had not delivered everything people had come to want. The problem, though, wasn’t that cooperation was an inadequate organizing principle. It was that what we had come to want was incompatible with freedom and equality.

The political reality is that it is impossible to guarantee everyone housing, food, clothing, and all the other things Roosevelt listed in his Second Bill of Rights without also denying those same people their freedom and the rights that flow from it.

The economic reality, bleaker still, is that it is simply impossible to guarantee these things at all. In the end, the price for more positive rights is fewer negative rights.

The curious thing is that we called into question what cooperation could accomplish but never asked what government could accomplish. The possibilities of what cooperation can yield are limited, as all human endeavors are. Why, then, do we not as readily consider the limitations of what coercion can yield? For public policies to work as promised often requires that economic realities and limitations be ignored. But we ignore them at our peril.

The federal debt, massive and growing, seems a clear indication that for far too long we have ignored what is possible in favor of what is desirable.