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  • Josh Lewis

What Conservatives Believe: Life, Liberty, & that Other Thing – Part III

Updated: Jun 20, 2020

“Conservatives are persuaded that freedom and property are closely linked.” Russell Kirk – Ten Conservative Principles*

In Part I of this series we discussed capitalism as the ideal protector of an individual’s natural right to the pursuit of property. We also touched on the competing economic system of socialism. In Part II we discussed the allure socialism has over Millennials in particular. If you’re reading this series for the first time be sure and check out Part I and Part II.

Positive and Negative Rights

In part II, I quoted Bernie Sanders expressing his belief that everybody in this country should be entitled to health care as a right. Former president Obama took this a step further in insisting Americans had a right to health insurance. If this is the case—if healthcare and health insurance are a right—then a certain level of governmental intervention would be acceptable and necessary to provide for this right. But is healthcare or health insurance a right in the same sense as the rights to life, liberty, and the pursuit of property conservatives uphold?

There is a distinction to be made between what may be called negative and positive rights. A negative right is a right not to be subjected to an action whereas a positive right is a right to be subjected to an action. The right to life, liberty, and the pursuit of property and the rights found in the Bill of Rights are negative rights in that the individual pursuing these things should be protected from intrusion. The right to healthcare would be a positive right because it would imply we have a right for something to be provided to us.

Those on the political left are—no pun intended—quite liberal in identifying a great many things as rights beyond the confines of the negative rights described above. In 1944, liberal darling and former president Franklin D. Roosevelt argued these negative rights “proved inadequate to assure us equality in the pursuit of happiness.” It was no longer sufficient for our rights to be defined by how the government would be constrained. Our nation had reached the affluence necessary to afford a new crop of rights to be provided by the government. Roosevelt’s famous Second Bill of Rights included the right to a job, leisure, fair income, housing, medical care, social security, and a good education.

Positive rights invariably require something of someone else. If I declare broadly that I have the right to marry, the implication is someone must be my mate. If we say we have a right to healthcare, someone is going to have to pay for it. Let’s say that we were to declare that every man, woman, and child in the United States had a right to a no. 2 pencil. Not everyone currently owns a no. 2 pencil, though most of us could acquire one if we so chose. Suppose someone were to identify a specific group of people—say, orphans or those in nursing homes or the homeless—who had no access to no. 2 pencils or the means of acquiring them. If it is their right to own a no. 2 pencil, then it would be a justifiable act of government to grant them the means of acquiring them. How might this be accomplished? Perhaps a modest national sales tax could be placed on no. 2 pencils, with collections appropriated to provide no. 2 pencils to the disenfranchised. Perhaps the government could mandate no. 2 pencils could not be exported overseas until census takers ensured some Federal agency that everyone here was adequately supplied. Perhaps the government could become part-owners in the pencil manufacturing industry, providing their product “free” of charge to those without the means of acquiring them.

Positive rights are granted to citizens by a benevolent government. But because they are granted, they can just as easily be rescinded. I have a right to drive on roads built by the government. But only if I am licensed by the state, maintain vehicle insurance, renew my tag and license, drive within mandated traffic laws, am of a certain age, and much more. The government giveth and the government taketh away.

It is my contention that positive rights are not rights at all. They are privileges. Our rights are endowed to us by our Creator and must be recognized and defended by government. Our privileges are advantages granted to us by governmental benevolence and the consent of the governed. Constitutional law attorney Jenna Ellis offered some clarification on our rights when she wrote:

“You and I don’t have a “First Amendment right to free speech.” You and I have a preexisting, unalienable right to free speech that the First Amendment preserves and protects in the context of American government. The Bill of Rights states that Congress shall make no law abridging the freedom of speech, not that the government grants the people the privilege of freedom of speech with the implication that the government can take away or narrow that privilege however it sees fit. This is the unique beauty of our Constitution, built upon our Declaration.”

Some may object that both rights and privileges can be taken away. The government may deprive me of the right to liberty and property if I am convicted of a crime. If the crime is a capital offense, the government may even deprive me of the right to life. But to protect our rights, governments must fine, imprison, detain, or perhaps even execute those who have demonstrated they pose a threat to others’ rights. If I murder, I have deprived someone else of their right to life, and the government would be blameless in executing judgement on me that includes depriving me of my right to life, liberty, and the pursuit of happiness.

Alexander Hamilton, a colossal genius second only to James Madison in the crafting of the United States Constitution, was initially suspicious of defining any rights in the Constitution. He expressed in Federalist No. 84:

“It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. . . Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. “We, the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights…I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

Did you catch that? Hamilton was concerned that a constitution which specifies what rights its citizens possess risks misinforming citizens that their rights come from a constitution. The Constitution was designed to limit the power of the government, not invent rights of its citizens.

Privileges granted by the government—what some may call positive rights—are not all wrongheaded or unjustifiable. I may freely enjoy my privilege to operate a motor vehicle as a citizen of the State of Oklahoma providing I fulfill the state’s requirements for a license. There is nothing requiring the government to provide the privilege of licensed driving to citizens beyond consent of the governed. And this is well and good. But where privileges and rights come into conflict—that is, when advantages the majority demands come into conflict with our God-given, inalienable rights—rights must win out. The privilege of universally affordable healthcare and other benevolent social endeavors for some comes at the cost of depriving others of their right to the pursuit of property.

In Part IV, our final post in the series, we’ll turn our attention to some specific objections raised against capitalism and offer some brief rebuttals.

*The “What Conservatives Believe” series was inspired by Russell Kirk’s “Ten Conservative Principles”. As a diligent student of conservatism my aim in this series is not to improve upon his manifesto—a task for which I’m hardly qualified—but to restate his ideas in a more digestible manner for the political layman who’d like to know what it means to be a conservative without having to read an academic paper.

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