Negative and Positive Rights

Welch treats the suggestion that such a right exists with scorn. He views “positive rights” in general as a dangerous historical innovation.

The Bill of Rights, famously, focuses on “negative” rights — the stuff that government is prohibited from doing to you. (“Congress shall make no law,” etc.) In 1944, President Franklin Delano Roosevelt suggested a “second Bill of Rights” that would put the federal government in the position of affirmatively guaranteeing “positive” outcomes — “the right of every family to a decent home,” freedom from “unfair competition and domination by monopolies,” and so on.

The idea went nowhere constitutionally, but the principles behind it survived beyond FDR, notably through President Harry Truman’s 1949 Fair Deal, which called for such positive goods as universal health care, and which served as a precursor to Lyndon Johnson’s Great Society programs of the mid-1960s.

As Welch tells the story, various failures of government put the idea of state-guaranteed social rights back in the box for much of the late twentieth century, but Democrats today are re-embracing these dangerous ideas. Welch regards this development as a “genuine cause for despair.”

The distinction between “negative” and “positive” rights can actually be quite difficult to pin down. Think, for example, about Miranda rights. The right against being imprisoned or executed without a fair trial is a classic “negative” right, but to secure that right, the services of a public defender are “affirmatively guaranteed.”

Of course, we don’t want to commit the continuum fallacy, concluding from the existence of gray areas that a genuine distinction doesn’t exist or that it doesn’t matter. Even so, thinking hard about the gray areas can be instructive. If some future libertarian regime were determined to root out all programs that established “positive rights,” would public defenders be safe? Fire departments certainly wouldn’t be.

A better question is why anyone should have a problem with the notion of positive rights in the first place. The only support Welch gives the implied premise that new claims about positive rights are to be distrusted is that the Founding Fathers were focused on negative rights. But is that reason enough to put aside our own moral beliefs? The right to be served at restaurants regardless of the color of one’s skin (or the bigoted views of private restaurant owners) is a “positive” right — and certainly not one that George Washington and his compatriots believed in.

Should the civil rights campaigners who bled for that right have deferred to the beliefs of the founders? What about the right of all children — whether or not their parents can afford to purchase private-school tuition — to be educated at public schools?

Closer to the question at hand, should the generations of workers who fought for an eight-hour day have deferred to the views of Washington and Hamilton? If not, is part of the reason that the right to meaningful free time matters? If so, this makes O’Rourke’s point about the injustice of having to waste precious hours commuting to faraway jobs.

Instead of asking whether anyone in the late eighteenth century agreed with that point, we should ask ourselves a much simpler question. Is a society that gives many of its citizens no realistic choice but to work eight hours, sleep eight hours, and spend another three or four of the remaining eight commuting back and forth to work more or less just, more or less humane — and, let’s not forget, more or less environmentally responsible — than one that gives people the option of living where they work so they can have the remaining eight hours for themselves and their families?

How a Democratic-Socialist Government Could Secure the Right to Live Where You Work

Solutions should take two forms. First, there are a variety of policies by which jobs could be either moved to or created in the places where commuters already live. In many cases, we already have excellent reasons unrelated to commute-shortening to implement them. The Green New Deal will require converting or replacing energy-inefficient buildings across the United States — including all the places where people with the commutes O’Rourke was talking about already live.

An American equivalent to Jeremy Corbyn’s ambitious proposal for British Broadband would double as a jobs program in parts of the country where jobs close to home can be particularly hard to find. Even beyond addressing these immediate needs, a democratic-socialist government that had brought many currently private enterprises into public ownership could decide as a matter of policy to forgo some of the economic efficiency that comes from asking geographically dispersed workforces to come together in central locations. This could be done in favor of the humanitarian and environmental benefits of relocating more of the work to the places where workers live.

Of course, this may not be practical or desirable in every case, so the other half of the solution is to create (or free up) housing where people already work. A few simple reforms could go a long way in this direction. For one thing, as Bernie Sanders has already proposed, we need a massive investment in mixed-income-level public housing. For another, plenty of housing (and plenty of buildings that could easily be converted into housing) is currently unoccupied, for reasons ranging from banks repossessing houses and being unable to resell them, to oligarchs from around the world buying buildings in some of the most commuted-to cities as a way of parking their money.

All of this could be socialized and converted into new public housing. People who are currently homeless should be first in line to be housed over those who simply want to be able to eliminate their commute across the bridge from New Jersey, but there’s no reason we couldn’t provide enough public housing for both groups.

Some people might even prefer to live in New Jersey, but a decent society would at least give them a choice in the matter.