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Positive vs. negative human rights

By on Oct 6, 2011 in Politics

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… the United States [has a] constitutional tradition that sees human rights as “negative” rights–rights against government–not “positive” rights that can be used to oblige government to take action to secure people’s livelihoods.

I was stopped by this quote in the article, “Who says food is a human right?”, in The Nation’s recent Food Issue.

While I am a huge advocate of Medicare-for-all and other progressive, social safety net programs, I have always felt uncomfortable at the mention that “Healthcare is a human right” or “Food is a human right.” For some reason the idea that healthcare or food or shelter are human rights on par with freedom of speech or religion feels wrong to me. I could say that historically food or shelter haven’t been rights, but then neither has freedom or speech or religion.

I suspect that this concept–the concept that rights exist to protect us from the government–is so engrained in me–in all Americans–that it never occurred to me.

So embedded is this in your constitutional culture that the concept that social and economic rights are real rights is generally not accepted. While human rights to health, education, and social security or food are guaranteed to a certain extent through legislation, they are still seen as suspect. Indeed, the protective role of government is denounced as paternalistic and even, following Hayek, as paving the way for totalitarianism: such rights could empower courts against the executive in ways perceived as undemocratic.

I do not, by any means, buy the argument that this way totalitarianism lies (mostly because what people really mean when they say totalitarianism is Hitler and fascism and the actual definition of fascism is ‘corporate controlled government’); I clearly do believe the government should offer a protective role — both against itself and against sometimes awful luck of the draw, otherwise known as life. What protects us from undemocratic or abusive forces isn’t quelling the creation of rights, but the checks and balances inherent in our governmental system and the right of all citizens to vote.

Real freedom can be achieved only when individuals are shielded against the most serious exclusions caused by the market. Rights have been invented precisely because majorities can act abusively, failing to respect the needs of minorities and the underprivileged.

This was my ‘aha’ moment in my ambiguity on the subject of “positive” rights. In the US, we tend to think of the majority as simply the majority of voters; however, what about the majority of power or wealth? In many ways we have overcome the former majority and its abusive (although not all ways), and now our struggle is against the majority of power and wealth — corporations and the very rich.

This brings me to the preamble to the constitution itself:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

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