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Thread: Positive Rights, the Constitution, and Conservatives and Moderate Libertarians.

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    Positive Rights, the Constitution, and Conservatives and Moderate Libertarians.

    Some recent conversations I’ve heard about “positive rights” and American legal traditions made me want to repeat something I’ve written before: While it’s true that the U.S. Constitution lacks some of the “positive rights” that people sometimes discuss under that label (e.g., a right to shelter, to medical care, to a subsistence income, and so on, it does secure other positive rights; and indeed, some positive rights are a longstanding feature of American legal traditions. I think such rights should remain limited, but I think one shouldn’t deny that they exist, and are in some measure secured by the U.S. Constitution (and state constitutions).

    First, some definitions. The term “right” is a broad one, which encompasses many different kinds of entitlement.

    1. Rights can be against the government (e.g., the freedom of speech or the right to keep and bear arms) or against private entities (e.g., the right to be free from trespass, negligent or intentional injury, or defamation).
    http://www.volokh.com/2013/05/07/pos...-libertarians/

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    right to shelter? Right to income? Right to medical care?

    How about the right for you to take responsibility for your own life & if you don't you live in a van down by the river.

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    Those "positive rights" can only be secured by denying the REAL rights of others, i.e. taking their property and forcing them to take actions against their interests.

    The exercise of REAL rights cannot step on the REAL rights of others. Therefore, "positive rights" are NOT rights. Shame on anyone who claims that they are! They are not advocates of REAL rights.

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    Regular Member Thundar's Avatar
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    Quote Originally Posted by eye95 View Post
    Those "positive rights" can only be secured by denying the REAL rights of others, i.e. taking their property and forcing them to take actions against their interests.

    The exercise of REAL rights cannot step on the REAL rights of others. Therefore, "positive rights" are NOT rights. Shame on anyone who claims that they are! They are not advocates of REAL rights.
    You are right, all government money is confiscated from the people. "Positive" rights are nothing more than income redistribution.

    Margret Thatcher said: "There is no such thing as government money, only taxpayer money."
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Campaign Veteran marshaul's Avatar
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    The right to public education under those state constitutions that secure such a right is a positive state constitutional right against the government.
    This is so. But before that we have...

    6. Rights can be positive rights, which is to say “entitling a person to have another do some act for the benefit of the person entitled.” Some examples: The right to demand that the government enforce your contracts is a positive constitutional right against the government).
    Well, that's just silly. I'm not saying the conclusion is wrong (although I'm leaning that way), but I will say the logic supporting it is... forced.

    In simple terms, if you sign a contract promising to mow my grass, and you then fail to mow my grass, you have defrauded me. I have a negative right to not be defrauded. The same as I have a negative right to not be murdered or robbed from.

    OK. But that leaves the putative "positive" right of demanding government do something about it. Is that right positive? Perhaps. But if so, then it necessarily follows that my right to have government do something about the guy who robs me is also a "positive" right.

    That being the case, I must ask: what is the point of this observation? For, if government has any purpose at all, surely that purpose is first and foremost to provide exactly such redress against acts of aggression. Comparing this to the "right" of education seems cheap and lazy.

    Which gets me to my next issue with the concept of "positive rights"; the entire concept of right originated to described freedoms which are self-evidently mine, by virtue of their causing no harm to my neighbor nor affecting his equivalent freedom, regardless of government. Ideally, government should be instituted to allow me to speak my mind, but I have a right to speak my mind no matter what government says, dammit. And that right is very real, not a mere philosophical conceit or intellectual construction. I exercise it every day, and so have millions of people throughout history whose government declared that there was no such right.

    From here, it's a simple logical progression to argue that, if I have a right not to be robbed or assaulted, I have a concomitant (stay with me here) right to effect recompense or redress from my aggressor. And remember, these rights exist independently of government. I need no legislation to endow me with them, or to remind me that they are mine.

    This being the case, then when government provides the "service" of justice, it is actually imposing upon me its monopolization of the means of redress. Which is ostensibly fine, because we as a society ostensibly agree that this is fairest for all. But the fact remains, government is merely demanding that I allow it to arbitrate and mediate something I could accomplish for myself.

    This is a far, far cry from education, which I have no right to demand anybody provide to me. If courts are a "positive right", education is in such a different category as to be a mere "privilege".

    Which, I think, is a fair assessment, given that such a "right" is inherently dependent upon legislative provision. (And do remember, I started off with the observation that rights are not dependent on any legislative action.)

    Now, this may seem like mere pedantry on my part, but I think not. To me this gets down to the fundamental, brass tacks nature of right. You'll note that my argument is, every step of the way, insistent upon right existing independent of government approval, much less provision.

    Do we see any of that from Mr. Volokh? I say, no we do not. Time and again he implies some sort of explicit foundation for every right he mentions, from a Constitution to a contract to common law to a legislative privilege. But right need not be explicit (until and unless we make it so). A caveman in prehistory, under no governing structure, had every right to defend himself and be free of aggression that I have, even though nobody would have thought to say as much for thousands of years.

    I find it revealing (and amusing) that I worked out the entire issue regarding the supposed positivity of the right to courts, logically and without a single textual reference (read: appeal to authority), whereas when Volokh revisits the question he immediately gets wrapped up in the irrelevant seventh amendment.

    Lawyers.




    Edit:

    Quote Originally Posted by marshaul View Post
    I'm not saying the conclusion is wrong (although I'm leaning that way)...
    Oh, and by the time I was done with all that, I concluded definitely that Volokh is wrong. So there.
    Last edited by marshaul; 05-08-2013 at 07:31 PM.

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    -2 points for using the words like pedantry and concomitant in one post.

    It just ain't right a fella's gotta look up two big words for one post.

    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Regular Member OC for ME's Avatar
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    The "right" to a education is a liberal premise. Society, via the state, mandates that we must be "educated." Therefore, the state mandated education of our children is anti-liberty and anti-citizen.

    ...nor shall private property be taken for public use, without just compensation.
    I take advantage of the state education system because I have, and have had, my property confiscated to pay the state education system, even when I do not use the state education system.

    The 3A, 6A, 7A, 8A are "rights" that are derived from a presupposed, and inevitable, intrusion from that which we, as "free" individuals, do not really need.....government. But, "society" demands that government exist to protect us all from government. Society demands that government exist to do the "redressing of our grievances" on our behalf, proactively, via LE. Government exists because we are lazy to a certain extent.

    Some rights are just plain hard work to protect, so we made government to protect those rights that we do not desire to protect ourselves.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Positive Rights, the Constitution, and Conservatives and Moderate Libertarians.

    I don't think there is a "right" to an education. It is smart public policy (on the State and local level) to ensure that folks can educate their kids. But it ain't a "right." I favor local and State funding of education but not the conduct of it--i.e. vouchers. Post-secondary education is not for everyone. Folks should demonstrate their ability to do college work before being accepted. Public funding of college should be limited to merit scholarships, if at all.

    If you deserve college and cannot afford it, get a job and work your way through!


    Sent from my iPad using Tapatalk.

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    Regular Member sudden valley gunner's Avatar
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    There are rights to education, medicine, food, ........there just is no right to demand it from others.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Quote Originally Posted by sudden valley gunner View Post
    There are rights to education, medicine, food, ........there just is no right to demand it from others.
    I would go one inch further: There is a right for you to try to obtain these things through mutual interaction with others. There is the possibility that, no matter how hard you try, you may not successfully obtain these things, meaning the receipt of them is not a right. They are part of the right to pursue happiness, not to get it.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by eye95 View Post
    I would go one inch further: There is a right for you to try to obtain these things through mutual interaction with others. There is the possibility that, no matter how hard you try, you may not successfully obtain these things, meaning the receipt of them is not a right. They are part of the right to pursue happiness, not to get it.
    Yep I agree. Do I have the right to food, absolutely this is a necessity for me to remain alive. Do I have the right to force you to help feed me .........nope.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    Yep I agree. Do I have the right to food, absolutely this is a necessity for me to remain alive. Do I have the right to force you to help feed me .........nope.
    I can not dispute that I have no right to expect for you to feed me. But, I have just as much right to that last Twinkie on the shelf at the 7-Eleven as you do and we is gunna have to Indian wrestle for that last Twinkie.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Quote Originally Posted by OC for ME View Post
    I can not dispute that I have no right to expect for you to feed me. But, I have just as much right to that last Twinkie on the shelf at the 7-Eleven as you do and we is gunna have to Indian wrestle for that last Twinkie.
    Nope, cuz I called firsties!

    And firsties is a recognized exercise of a positive right.
    Last edited by eye95; 05-10-2013 at 08:35 AM.

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by eye95 View Post
    Nope, cuz I called firsties!

    And firsties is a recognized exercise of a positive right.
    Firsties?!?!?!?!......where's the dang manager.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by OC for ME View Post
    I can not dispute that I have no right to expect for you to feed me. But, I have just as much right to that last Twinkie on the shelf at the 7-Eleven as you do and we is gunna have to Indian wrestle for that last Twinkie.
    Quote Originally Posted by eye95 View Post
    Nope, cuz I called firsties!

    And firsties is a recognized exercise of a positive right.
    Quote Originally Posted by OC for ME View Post
    Firsties?!?!?!?!......where's the dang manager.

    LOL....I have a vison of two men locking legs in the isle of 7-11, while a gorilla grabs the item the are wrestling for.....lol.....
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Re: Positive Rights, the Constitution, and Conservatives and Moderate Libertarians.

    Quote Originally Posted by sudden valley gunner View Post
    LOL....I have a vison of two men locking legs in the isle of 7-11, while a gorilla grabs the item the are wrestling for.....lol.....
    I thought the exact same thing when I read that.

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