Constitutional Changes of the Future—Part 3

Positive Rights

For people who believe that we need a new constitution, perhaps the greatest virtue of redefining the privileges or immunities clause is the prospect of transforming the Constitution from a guarantor of “negative liberties” into a charter of “affirmative government,” guaranteeing an array of “positive” rights. As President Obama has observed in a radio interview in criticism of the legacy of the Warren Court of the 1950s and 1960s, “[It] never ventured into the issues of redistribution of wealth and . . . more basic issues of political and economic justice in this society. . . . [T]he Warren Court . . . wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution. . . that generally the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.”

President Obama is correct. The original Constitution defines individual rights in terms of what the government cannot do to you. For example, the government cannot inflict cruel and unusual punishment, and therefore the individual has a constitutional right not to be subject to such punishment; the government cannot engage in unreasonable searches and seizures, and therefore the individual has a constitutional right not to be subject to such searches and seizures, and so forth. By contrast, the Framers’ Constitution does not guarantee rights to material goods such as housing, education, food, clothing, jobs, or health care—rights that place a related obligation upon the state to obtain the resources from other citizens to pay for them.

Proponents of constitutional change would like to change the document’s requirements into a document that requires many positive rights for the benefit of the people, rights such as those listed in the above paragraph, i.e., housing, education, etc. And, for today, that specifically refers to health care, which many people are claiming as a basic right that ought to be guaranteed under the Constitution or, at least, under statute law. For them, lack of universal health care abridges and limits the “privileges and immunities” of our citizens. Therefore, these changers of the Constitution like to use the “privileges and immunities” clause of the Fourteenth Amendment as their springboard into a new constitutional understanding.

As various advocates of a 21st century constitution have urged, a privilege or immunity might be interpreted to allow the invention of a host of new “rights,” and thus be construed to guarantee social or economic equality. However pleasing this might sound to some people, there should be no mistake: adopting this interpretation will supplant representative decision-making with the decision-making of unelected, unaccountable, and life-tenured judges. Should the privileges or immunities clause be used in this way, as a charter of positive rights, ours will become an America in which citizens are constitutionally entitled to their neighbors’ possessions; in which economic redistribution will become as ingrained a principle as federalism and the separation of powers. If this happens, a succession of new “rights” will be parceled out as people are deemed worthy of them by berobed lawyers in the judiciary.

Much of this post was excerpted from Imprimis April 2010.