Tuesday, July 8, 2014

Rights Versus Entitlements

Megan McArdle explains what is going on underneath the Hobby Lobby furor. Here's her first home-run paragraph:

I think a few things are going on here. The first is that while 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.

So that is part one, kind of a "don't hold your deeply-held beliefs any deeper than anyone who doesn't have any deeply-held beliefs" on the part of the secular left.

The second part of the explanation is the classic rights versus entitlements struggle. Conservatives want rights, liberals want entitlements. McArdle describes these as negative rights and positive rights.

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.


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.

I think this all is worth taking a lot of time to meditate on. For example, I'm a parent. In a sense it's true to say that my kids are entitled to "free food" since they can't earn it themselves. However, to me, it is much more true to say that my wife and I have the responsibility to feed them than it is to say they have the right to free food. So I have to figure out how to earn the money to do that and my wife has to figure out how to deliver meals to them three times a day, etc. Any entitlement they could claim is secondary and subsidiary to my actions in carrying out my duty.

The language of positive rights or entitlements devoid of any discussion of reciprocal responsibilities is what is found in many places on the left today. For example, people on unemployment are suppose to be looking for work and applying for so many jobs a week. But do they really? If you are out of work you can get low-cost or no-cost tech training in most states; I have a friend who did that. He hated being taxpayer-subsidized, but I'm afraid he's an exception. I've run into many more people who are sitting around waiting for the factory to re-open, content to subsist and blame whoever they dislike for their predicament.

I could go on with more, but you get it. Not only do our negative rights not clash with each other, they fit hand-in-glove with the personal responsibility that is part of the inherent dignity of the human person. On the other hand, so-called "positive rights" are the opposite of personal responsibility. Do you have a right to health care? Of course you do, but you have to pay for it. Do you have a right to food? Yes, and you can pay for it in the self-checkout line or the line with the cashier.

What if you walk into my wig store and hand me money for a wig and I don't want to sell it to you because you are a Zoroastrian? To bad for me; I have to sell you a wig. Otherwise I'm discriminating and trampling your rights. But you don't have a right to free wigs whether or not you are a Zoroastrian. However the entitlement mentality would state that if someone wants a wig but can't pay for it then they should have a right to it. The taxpayers should pony up to make sure there is "economic justice", yet another synonym for the entitlement mentality.

We need to continue the attack the left's constant assault on our personal liberty and the true nature of the rights we have as human beings which the state recognizes and protects. The government's job is not to enumerate ever more "positive rights" to squeeze out the true freedoms and the true nature of our personal responsibilities. We also need to teach our kids this, first by throwing propaganda like The Rainbow Fish into the garbage can, then by explaining the difference in how a Christian views our rights and responsibilities as citizens and how secular leftists like Obama and Ginsburg defines them. And of course by trying to fulfill our duties and respect the true rights of others.


  1. I agree with all of that, Pauli.

    I think it is also important to consider to whom our rights are relative. The Constitution defines our rights relative to the federal government (and, in some cases, relative to the states), but not among one another. We're left to our own devices regarding our relationships with others, and to the policing that the state (in a general sense) may arrive at to regulate the bounds of those relationships.

    For example, the first amendment prohibits Congress (and by extension, the states) from enacting any law establishing a religion, and any law that infringes the free exercise of religion. Obamacare is a statute (such as it is) that requires some citizens (employers) to pay for certain health care benefits for other citizens (employees). So it would seem to me that if that statute infringes the free exercise of religion (as in my view it does in the contraception and abortifacient instances), there should be little question that it is invalid. One is a express constitutional right relative to the government, while the other is a statutory arrangement relative to another citizen.

    The left of course confuses all this by framing the question of a comparison of the employers' alleged free exercise rights to the alleged statutory rights of the employees to cost-free abortifacients. Under our system, this seems to me to be an easy question -- the constitutional free exercise right relative to the government trumps any alleged "statutory right" relative to another citizen. Framing the issue as the left does is a complete warping of the question. And this is compounded by their assumption that no one really lives their religious faith anyway -- and if someone claims they are, they are using faith as an excuse to oppress by "imposing their beliefs on others".

    I'd also add that your wig shop is perfectly free to discriminate against ugly people by refusing to sell them wigs. Current law only prohibits you from discriminating on the basis of race, probably gender, and (in an increasing number of cases, sadly) sexual orientation.

    On this point, I'll refer to good old Scalia:

    When the Court takes sides in the culture wars, it tends to be with the knights rather than the villains--and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: "assurance of the employer's willingness" to hire homosexuals. . . Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.

    Romer v. Evans (Scalia's dissent).

  2. You're right about ugliness. I'm changing my example to use Zoroastrians, the old standby minority religious example.

  3. The problem isn't with positive rights. Church teaching is clear that those who can't afford food have a positive right to the extra food in our kitchens, and those who can't afford clothes have a positive right to the extra clothes in our closets. (Personally, I hope Christ judges me more along the lines of what Obama would consider "extra" than what St. Thomas would. God help me if St. John Chrysostom's is the balance I'm measured on.)

    The problem is that the government asserts as rights things that are not rights. Since rights -- or, in Catholic-speak, since justice is inextricably tied to human nature -- what we *are* has a lot to do with what we owe and are owed in justice -- it's unjust to arbitrarily invent rights, and a false or faulty notion of human nature is very likely to produce false or faulty notions of rights, and unjust laws to ensure them.

    1. I guess I see the positive right you mention as more of a moral obligation on our part, rather than an affirmative right of a poor person to come to our door and demand our spare clothes. Perhaps there is a moral right of the poor generally to our excess, but the burden falls on those of us with the excess, as you point out with the standards of judgment.

      On the problem of government asserting things that are not rights to be rights, boy howdy. IMO, many (particular libertarians) confuse license with rights. I remember Ron Paul asserting in one of the 2012 debates that we have the right to be heroin addicts. Natural law asserts that we do not have the "right" to do evil. When government claims to grant such rights to do evil (Roe v. Wade and Dred Scott being prime examples), society suffers as a result.

    2. I think part of the issue is that a legal right isn't quite the same sort of thing as a moral right, and people don't talk about both sorts of things in the same conversations often enough to take sufficient care with the distinction.

      St. Thomas, for example, teaches that, since a poor person has a natural right to my superabundance, it is lawful for him to take it secretly if necessary -- but that's not such an easy thing to translate into positive law.

    3. Well stated on the legal vs. moral rights point.

      ...that's not such an easy thing to translate into positive law.

      Indeed so. It would certainly complicate the Castle Doctrine ....

    4. In our society do we really see much of people coming in to steal food and clothing? You can get that stuff anywhere. B&E is usually reserved for cash or easily liquifiable stuff like electronics.

      I'm not sure it's profitable to dream up theoreticals that don't match experience in a discussion about the obligation people have to the poor among us.

      But assuming it is of profit, what does it have to do with the very real fight regarding religious rights in our country? No one out there is arguing for not providing food and clothing. We're talking about forcing one person to buy another person pharmaceuticals that the first person doesn't believe constitutes good medicine. It's not a matter of life and death for the employee, and the employee is free to purchase whatever they want with their wages. It's very far removed from the situation of B&E for subsistence in reality.

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    6. Well, what do you want? A discussion on "the classic rights versus entitlements struggle," or one on "the very real fight regarding religious rights in our country"?

      To the extent you want to bring the former to bear on the latter, you need to make sure you're getting the principles involved correct, and theoreticals are used to illustrate principles.

      (Somewhat tangentially, I suspect conservatives in general could do a better job working the principle that the right of ownership doesn't entail a sovereign right of use -- from which a lot more follows than that in extremis B&E isn't theft -- into their thinking.)

  4. Tom, if a poor person came to my door asking for food and clothes I would gladly invite him in and give him what he needed.

    But that's not what is going on today. Poor and working class people are being courted by rich politicians who promise them "goodies" for their votes. The goodies are all extras--birth control pills, college tuition, etc.

    The poor are taken care of pretty well in this country and their are charities tripping over each other to pass out food and clothing.

    We need to follow Church teaching, of course, but we also need to keep our eyes open.

    1. I don't dispute that.

      But "rights vs. entitlements" is a false dilemma. "Negative rights" and "positive rights" both exist and must both be recognized by the laws of a just society.

    2. True, but conservatives see society as something greater and larger than what is in the government's purview. McArdle recognizes that when she writes this:

      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.

      and this:

      In the 19th century, the line between the individual and the government was just as firm as it is now, but there was a large public space in between that was nonetheless seen as private in the sense of being mostly outside of government control -- which is why we still refer to “public" companies as being part of the “private" sector....

      My suggestion is that what she calls the "large public space in between" is what needs to be viewed when we are talking about rights and responsibilities, not legislation and government action. To me that is what subsidiary is about and the least centralized competent authority. Am I competent to provide food for my family, even if I might have to someday pay for it with government assistance? I think so. Do you realize that some schools in Chicago banned the bringing of lunches to school? So your child is entitled to eat, but you're not allowed to feed him.

      Also look at this. Obama has tried FIVE times to reduce the charitable Income Tax deduction. The rights versus entitlements is a very real way to look at how a society deals with the needs of its members.

  5. I wonder whether part of the issue stems from secularists/atheists trying to cook up their own "free exercise" rights. If one has no religion, he has nothing to exercise -- so the secularists/atheists naturally (even subconsciously) consider their right to do whatever they want to do to be the "free exercise" of their non-religion.

    In which case, when those who actually have a religion exercise that religion in such a way as to limit or even disapprove of the actions of the secularist/atheist, the secularist/atheist considers their "rights" to be infringed. And they squawk such things as don't "impose your beliefs on me" (including by refusing to pay for those actions).

    I am thinking that this is what the secularists/atheists are trying to do when they morph the free exercise of religion into "freedom of worship". They are trying to restrict the free exercise right to merely the right to attend mass on Sunday mornings behind closed doors, which can't possibly have any effect on what they otherwise want to do.

    1. I think you're on the right track with this idea, Pik, because a "religion" without any positive creed or structure is practically invulnerable to attack. They can usually attack religious groups one at a time without that much blowback from other religions. That's why groups like the ACLJ are so important because they defend religious rights in general.

  6. If you don't lock yourself into the rights vs, entitlements dichotomy from the beginning, there might be a different way of describing the distinction you're trying to make. I might describe is a bit verbosely as "rights vs. opportunisms riding parasitically on peoples' acceptance of the concept of rights in an effort to forge new 'rights' they'll go along with as rights, too". So "rights" becomes a lazy synonym for nothing more than "wants", but if you convince or cow enough people into going along with you, my right to a cold beer on demand for my health is no longer contested - in which case I suppose you could say the entitlement I sought just got enshrined as a right instead from now on.

    There's also another way to parse the situation of the poor and Catholic doctrine Tom and Pik were hashing out. Even though I'm not Catholic, Catholic doctrine says the poor have a right to my extra food and clothes. Okay, fine - which poor, and how poor? I don't have a bottomless barrel of extra food and clothes. Dude shows up at my door "Catholic doctrine, man: extra food & clothes, chop, chop!" My response, "Oh, I'm terribly sorry, I'm reserving them for someone truly much needier than you, someone meeting these criteria, which you don't. Good luck, though."

    Maybe this has something to do with me not being Catholic, but until I agree that they are rights - this particular dude gets this particular batch of extra food and clothes - he's not yet exercising a right, he's at best pursuing an opportunity and hoping I'll go along with it as a right. And keep in mind this example has the closest moral claim to being a "right" - Catholic doctrine. Other things sort out into the distance from there.

    1. Also "Which extra and how extra?" is a question which may be asked. When Aquinas wrote, plenty of people only had the clothes on their back and enough money in their pockets for a couple meals. I've been in the dwellings of people who have plenty of food and clothes but who are still considered to be in poverty.