Friday, July 11, 2014

Positive and negative rights

In 1993 a bipartisan Congress almost unanimously passed the Religious Freedom Restoration Act then signed into law by President Clinton. What was uncontroversial then certainly isn't now. In "Who's the Real Hobby Lobby Bully?", Megan McArdle explains what seems a disproportionate reaction by the left to the Hobby Lobby decision:
...[W]hile the religious right views religion as a fundamental, and indeed essential, part of the human experience, the secular left views it as something more like a hobby, so for them it’s as if a major administrative rule was struck down because it unduly burdened model-train enthusiasts. That emotional disconnect makes it hard for the two sides to even debate; the emotional tenor quickly spirals into hysteria as one side says “Sacred!” and the other side says, essentially, “Seriously? Model trains?” That shows in Justice Ruth Bader Ginsburg’s dissent, where it seems to me that she takes a very narrow view of what role religious groups play in the lives of believers and society as a whole.

The second, and probably more important, problem is that the long compromise worked out between the state and religious groups — do what you want within very broad limits, but don’t expect the state to promote it — is breaking down in the face of a shift in the way we view rights and the role of the government in public life.

To see what I mean, consider an argument I have now heard hundreds of times — on Facebook, in my e-mail, in comment threads here and elsewhere: “Hobby Lobby’s owners have a right to their own religious views, but they don’t have a right to impose them on others.” As I wrote the day the decision came out, the statement itself is laudable, yet it rings strange when it’s applied to this particular circumstance. How is not buying you something equivalent to “imposing” on you?

I think you can understand this, however, as the clash of principles designed for a world of negative rights, in a society that has come to embrace substantial positive rights — as well as a clash between old and new concepts of what is private and what is public.

All of us learned some version of “You have the right to your beliefs, but not to impose them on others” in civics class. It’s a classic negative right. And negative rights are easy to make reciprocal: You have a right to practice your religion without interference, and I have a right not to have your beliefs imposed on me.

This works very well in situations in which most of the other rights granted by society are negative rights, because negative rights don’t clash very often. Oh, sure, you’re going to get arguments about noise ordinances and other nuisance abatements, but unless your religious practices are extreme indeed, the odds that they will substantively violate someone else’s negative rights are pretty slim.

I’m not saying that America ever perfectly hewed to this sort of ideal. (Blue laws, anyone?) I’m just saying that the statement of this ideal was perfectly consistent with the broadly held conception of what government was for, which was to provide “public goods” in the classical economics sense, but otherwise mostly to keep other people from doing stuff to you, not to do things for you or force you to do them for other people.

In this context, “Do what you want, as long as you don’t try to force me to do it, too” works very well, which is why this verbal formula has had such a long life. But when you introduce positive rights into the picture, this abruptly stops working. You have a negative right not to have your religious practice interfered with, and say your church forbids the purchase or use of certain forms of birth control. If I have a negative right not to have my purchase of birth control interfered with, we can reach a perhaps uneasy truce where you don’t buy it and I do. But if I have a positive right to have birth control purchased for me, then suddenly our rights are directly opposed: You have a right not to buy birth control, and I have a right to have it bought for me, by you. .... (emphases added) [more]