What are rights?
If your knowledge of political philosophy were informed by the contemporary rhetoric of many prominent Democrats, you could be easily forgiven for thinking “rights” don’t really mean anything at all; or, rather, that they mean whatever progressives want them to mean.
It seems that we are increasingly expected to believe that rights are synonymous with whichever policies inhabit the progressive agenda on a given day. Universal health-care coverage? That’s a human right. Government-funded housing? Check. A four-year college education? Yup. Guaranteed employment in a well-paying job? Yes, that too.
This isn’t a particularly new development within progressive thought. In fact, the debate over the true meaning of foundational political concepts — rights, liberty, freedom, etc. — has been a central feature of our national discourse since the American project’s inception. Isaiah Berlin’s famous essay “Two Concepts of Liberty” is a seminal work on the subject. In it, he draws a distinction between two competing notions of liberty:
The first of these political senses of freedom or liberty (I shall use both words to mean the same), which (following much precedent) I shall call the “negative” sense, is involved in the answer to the question “What is the area within which the subject — a person or group of persons — is or should be left to do or be what he is able to do or be, without interference by other persons?” The second, which I shall call the positive sense, is involved in the answer to the question “What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?” The two questions are clearly different, even though the answers to them may overlap.
Many of the core, fundamental philosophical differences between conservatives and progressives can be traced back to this difference of opinions regarding positive and negative freedom. Negative freedom is freedom from, freedom to act without government coercion. Positive freedom is freedom to, the existence of the conditions necessary to achieve a certain end. Conservatives often prefer the negative, while progressives look to the positive. Pete Buttigieg, the Democratic presidential candidate, articulated the progressive conceptualization with unusual clarity in his campaign-launch speech:
First comes freedom: something that our conservative friends have come to think of as their own . . . [but] freedom has been a Democratic bedrock ever since the New Deal. Health care is freedom . . . Consumer protection is freedom . . . Racial justice is freedom . . . Empowering teachers means freedom . . . Women’s equality is freedom . . . Organized labor sows freedom . . . The chance to live a life of your choosing, in keeping with your values: that is freedom in its richest sense. And we know that good government can secure such freedom just as much as bad government can deny it.
The debate over “rights” — what they do and don’t include, what the government’s role is in securing them, and so on — happens within the same framework. Progressives have long preferred the positive conception of rights as the philosophical foundation for governance. From the New Deal to Bernie Sanders’s “21st Century Bill of Rights,” the Left has always looked at rights to a specific end as more important than rights secured from government interference.
Conservatives, on the other hand, have traditionally preferred a negative conception of rights, much of which can be traced back to John Locke. Locke had a relatively confined and narrow understanding of what constituted unalienable and universal rights: life, liberty, and property. The Framers were heavily influenced by this conception, so much so that our Constitution is, in many ways, a legal application of Lockean philosophy. As a result, it is a “negative” document, organized around securing rights from government intervention rather than rights to government provision. Even the rights to legal counsel and trial by a jury of one’s peers, which seem on their face to be “positive,” are included as a means to protect the limited, original conception of natural rights. They exist only so far as they ensure that freedom and bodily self-determination — rights which are identifiable in a state of nature — cannot be infringed upon without sufficient justification.
Contemporary progressives may propose to provide Americans with any number of allegedly long-denied “human rights,” but they always seem to fall short of explaining why we should believe that these claims possess philosophical legitimacy. Talk of “rights” has become a useful rhetorical device to be applied to any policy that progressives find desirable, but in the process, the Left has abandoned philosophical theory and conflated rights with “things that we like and think are a good idea.”
This framing is seductive. It adds a level of moral legitimacy to one’s demands for government programs that provide whatever policies are desired (e.g. Medicare for All and the Green New Deal).
But it bears considering: Does universal health-care coverage really pre-exist government? Is a federal jobs guarantee something with which all humans are endowed by their Creator? Are governments instituted among men to secure the “right” to . . . free college?
That the answer to the above questions is “no” doesn’t make fuzzy talk of “rights” any less effective a political tool. The abstract language itself, used as a justification for any number of bad ideas, serves to help progressives avoid engaging in concrete debates about their political agenda. Edmund Burke, prophetic as always, sniffed this out all the way back in 1790:
What is the use of discussing a man’s abstract right to food or medicine? The question is upon the method of procuring and administering them. In that deliberation I shall always advise to call in the aid of the farmer and the physician rather than the professor of metaphysics.
Burke is right, of course, that abstraction and theory do not make for good governance. But progressives’ strategy has been to make the debate over their unrealistic policy proposals as theoretically abstract as possible, so as to render any practical reservations useless. (“What do you mean we can’t afford it? It’s a fundamental right!”)
Regardless of one’s personal opinions regarding the philosophical debate over the content of political, legal, and human rights, however, the pragmatic objection to the progressive conception of rights and liberty — and, therefore, the role of government in securing them — is strong enough on its own to merit a deep skepticism of the progressive project. Negative liberty is inherently limited to one’s own ability to achieve his aspirations within the space allowed by the state. The Lockean conceptualization of rights works within this framework, as it is primarily concerned with those rights which pre-exist government, and the subsequent limits upon the ability of the state to interfere with them. The more radical, positive conceptualization preferred by contemporary progressives lacks any manner of limiting principle whatsoever, and therefore poses significantly more danger to our political discourse. Limited government is fundamentally unable to provide the never-ending stream of “rights” enumerated by the positive conception, so the removal of checks on state power is an inevitable antecedent to the Sisyphean task of providing them. It’s no coincidence that the totalitarian regimes of the 20th century spoke of freedom and liberty as positive, rather than negative.
The positive conception does, though, make for catchy slogans, one must admit. “Health care is a human right!” sounds much more appealing than “universal health care is an admirable policy goal that we should pursue creatively and thoughtfully to produce the best possible result, but it’s important to understand that the end product will still be far from perfect because all legislative policies include trade-offs, humans are inherently flawed, life is difficult, there’s not much that the government can actually do about it, and no society can ever solve the problem of human suffering.”
Good luck making that a bumper sticker.