'Negative' Rights

'CONGRESS shall make no law Thus begins the Bill of Rights, the first 10 amendments to the Constitution. As these words indicate, the Bill of Rights is not an affirmative declaration of the rights of Americans; rather, it is a concise list of thou-shalt-not restrictions on government interference with the people's religious, political, and legal rights. There are other approaches to designating and protecting fundamental rights. The constitutions of many nations, including some of the new democracies in Eastern Europe, contain lengthy enumerations of the people's rights. Often these rights, stated affirmatively ("It shall be the right of each citizen ), go beyond civic rights like free speech or a speedy trial to social and economic entitlements - the right to a job, to shelter, to education or health care.

As we commemorate the 200th anniversary of the Bill of Rights, it's worthwhile to consider these different approaches. If Americans were drafting the Bill of Rights today, would they still adopt the 1791 model?

The Bill of Rights can't be separated from its history. It emerged from political deal-cutting that permitted ratification of the Constitution; and it also reflects the central concerns of 18th-century political thought. Beyond such historical considerations, however, the Bill of Rights is premised on a political philosophy still widely embraced two centuries later. It holds that fundamental human rights are not retractable grants from government, but rather are "inalienable," grounded in "natural law,"

to be defended from encroachments by the state.

These differing views of bills of rights - as negative restrictions on government power, or as affirmative guarantors of government benefaction - are more than just theoretical. A people's adherence to one viewpoint or the other has ramifications on a nation's political and legal culture, its social policy, its economy.

It's one thing to set forth a nation's social and economic goals, but quite another to designate them as constitutional rights. How is a court to enforce a right to, say, adequate shelter? By enjoining the government to create specified low-income housing programs, to levy taxes, and to establish a bureaucracy to administer it all? Such steps may be proper political responses to a society's housing needs, but should they be imposed by judges to enforce a constitutional right? Many Americans, believing t h

at courts already go too far in running schools or prisons, would not be pleased to see courts devising housing or jobs programs in the guise of constitutional jurisprudence. They worry about "constitutionalizing" the welfare state and turning social and economic policymaking over to lawyers.

At the same time, however, many other people - surveying the needs and problems of a complex society so far removed from the yeoman America of Jefferson and Madison - regard government not as an alien power to be feared, but as an instrument for social and economic justice. In the late 20th century, they ask, shouldn't a decent wage and a decent roof be rights of each American as much as a free press?

We can expect that this debate will be as central to our national dialogue on the Bill of Rights in its third century as trying to determine what constitutes establishment of religion or unreasonable search and seizure.

Part of a series of occasional editorials on the Bill of Rights.

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