An excellent post at the Bloomberg View blog by Megan McArdle explains why the political left and the right view the outcome of the recent Hobby Lobby case so very differently.
Her argument is that there is a fundamental clash between how each side views the nature of rights. As she points out:
Usually in political disputes, it’s broadly understood which side is being forced and which side is doing the forcing. We may argue about how much people should pay in taxes or how harsh incarceration policies should be, but both sides can generally agree on who is being coerced and who is doing the coercing. Here we have a case in which folks on both sides genuinely believe that they are the ones being imposed upon. How is it possible that we disagree on something so fundamental and obvious?
Stringing together a few of McArdle’s key sections, we can capture the essence of the problem:
Consider an argument I have now heard hundreds of times. …“Hobby Lobby’s owners have a right to their own religious views, but they don’t have a right to impose them on others.”… [T]he 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?… 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. …
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.
For McArdle, this clash represents a fundamental problem facing American society, and I agree. Traditionally the “American view” has been dominated by the concept of negative rights and has seen rights, so conceived, as essential to true liberty.
Indeed the Bill of Rights in the Constitution has traditionally been seen as a list of negative rights expressing a fundamental philosophy of “live and let live.” From this perspective, a person’s right to pursue happiness imposes no particular obligation on his or her fellows, other than to respect it.
My free-speech rights do not entail an obligation on your part to buy me a bullhorn or a printing press; my right to be armed does not obligate you to purchase me a weapon; and my right to exercise my religion freely does not obligate you to pay for my Bibles or build me a church. Your only obligation with respect to each of these “negative rights” is to refrain from using force or threats of force in an attempt to stop me from using my self and my property in exercising these rights.
The exercise of positive rights — like the right to health care, the right to a college education, or, in the Hobby Lobby case, the right to certain forms of contraception — imposes a positive obligation on the part of others, i.e., to turn over some portion of the fruits of their labor (income) to pay for it. This is because positive rights typically imply the right to receive something free of charge, or at least subsidized, to the person who holds the right.
Hence the right to access contraception is not merely the negative right to go to a pharmacist and purchase birth control pills, which no one in this case has suggested should be denied, but the positive right to receive contraceptives at the expense of someone else. In the world of positive rights, if Hobby lobby or anyone else would like to exercise their negative right to practice their religion freely and refuse to pay, it is equivalent to denying someone else their positive rights.
The two kinds of rights cannot coexist. The roll of the state in enforcing positive rights is necessarily to use threats of violence and coercion against the recalcitrant Hobby Lobbies of the world to enforce their obligation. State action invoked to enforce positive rights inherently violate negative rights.
As positive rights come to dominate how our government and many, if not most, people in society think about rights, these kinds of clashes will become increasingly prevalent.
We are quickly reaching a point where our country will have to decide whether we want a society built on the freedom allowed by a regime of negative rights as recognized in the Constitution or an ad hoc and arbitrary system of positive rights, where refusal to finance those rights by those who object is met by legalized brute force.
Dr. Roy Cordato (@roycordato) is Vice President for Research and Resident Scholar at the John Locke Foundation.