The Difference Between Negative Rights and Positive Rights
By OREN M. LEVIN-WALDMAN, Ph.D.

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The Difference Between Negative Rights and Positive By Oren M. Levin-Waldman

Oren M. Levin-Waldman, Ph.D., Professor at the Graduate School for Public Affairs and Administration at Metropolitan College of New York, Research Scholar at the Binzagr Institute for Sustainable Prosperity, as well as faculty member in the Milano School for International Affairs, Management, and Urban Policy at the New School. Direct email to: olevin-waldman@mcny.edu

The United States is a country founded on the principle of negative rights. That means that the rights we enjoy cannot be abridged by anybody, especially government. Nevertheless the radical left in Congress is now attempting to introduce a new set of rights — positive rights which really have no place in American constitutional history and jurisprudence. A positive right, in contrast to a negative one, means that not only can one’s rights not be interfered with, but that positive steps must be taken to ensure that one’s rights can be realized.

The idea that everybody should be guaranteed a job is nothing new. The right to work in the U.S. has always been regarded as a negative right. That means one has a right to go to work and take a job that is available. Government cannot prevent one from taking a job, as that would be considered to be an abridgement of that person’s right to work. As an extension of that person’s negative right to work, we have anti-discrimination laws so that others also cannot interfere with that person’s negative right to work.

A positive right to work, however, would require that somebody ensure that everybody has a job so that everybody can realize their positive right to work. Either private employers would be forced to hire workers, even if they aren’t needed or hiring additional workers would put them at a financial loss, or the government would have to create public sector jobs — to become the Employer of Last Resort — so that the positive right to work can be realized.

Still, the idea that the government should be an employer of last resort is not a new concept, and isn’t quite as radical as those on the right might think. During the Great Depression the federal government created the Work Progress Administration (WPA), which might have been regarded as a forerunner to the concept of Employer of Last Resort. Although it attempted to provide public jobs to those without, it was not predicated on the concept of a positive right to work. Rather it reflected the reality that since the private sector was not creating sufficient jobs, the public sector would then have to pick up the slack.

The goal was to lower the unemployment rate; not necessarily to achieve “full” employment. Still, a new debate was emerging. Following World War II, the Employment Act of 1946 was enacted. This law established that it would be as a matter of law and policy the responsibility of the federal government to ensure as high a level of employment as “practicable.” The law created the Council of Economic Advisors in the White House whose job it would be to submit annual reports to Congress on the state of the economy.

One implied policy flowing from the Employment Act was monetary policy. In efforts to boost employment during periods of recession, the Federal Reserve would lower interest rates. Of course, Congress might also boost employment through fiscal measures such as reducing taxes and the creation of other stimulus packages. And yet, all but forgotten in the discussions of the Employment Act prior to its passage was that it was initially introduced as the Full Employment Bill.

It isn’t merely a semantic difference to distinguish the two by removing “Full” from the title. There was considerable concern in Congress, especially among conservatives, that a Full Employment Act would not only obligate government to create jobs, but in the process effectively create a positive right to work. That is, full employment was not the same as the old WPA.

The old WPA merely compensated for the failures of the private sector to create jobs. It only offered jobs to those without. To ensure full employment, as the bill was proposing, meant that government would have to guarantee that there were jobs for everybody. It would create a right to work that had never previously existed. And this raised larger philosophical and constitutional questions than anybody cared to deal with. After all, if government isn’t creating jobs, then private employers would be required to. If that were the case, then the traditional understanding of property rights would be turned upside down.

Consider the implications of a mandate to employ for a small firm owned by somebody who decides its time to retire and decides to sell. Can an employer be forced to remain in business so that others’ positive right to work can be realized? The old WPA was simply consistent with the negative right to work. That government was creating jobs did not mean it had an obligation to do so.

There may well be good arguments for creating a positive right to work, but my purpose here isn’t to argue for or against. Rather it is to explore the implications of what that means. Since the U.S. has no real tradition of positive rights, it might require new definitions of rights, especially property rights in the form of constitutional amendments.

Even a simple approach of government being the Employer of Last Resort will create an implicit positive right to work, especially if it is cast as an entitlement. This approach will no doubt cost a lot of money. Of course the radicals will respond that it can be paid for by new taxes, especially on the wealthy. Although that can have economic consequences, especially if new taxes lead to a slowdown and layoffs, the unemployed could always theoretically fall back on the new public jobs.

Still what begins as an attempt to complement the private sector could end up supplanting the private sector over time. If through the creation of positive rights, new obligations are imposed on government, more power and authority would have to rest with government. This could lead to new infringements of individual liberties, and it is to protect liberties that we have a constitutional system predicated on the protection of negative rights.

The radicals among the freshman Democrats in Congress no doubt understand that this would be giving government more control. Those who espouse true socialism have long believed in strong government at the expense of individual rights and liberties. They are banking on the fact that most of the public won’t understand. After all, to guarantee a job for all seems so reasonable. But it may not be so reasonable if it upends a rich tradition of American constitutional history and jurisprudence.

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Restoring the Middle Class through Wage / Oren M. Levin-Waldman / Palgrave MacMillan

 https://www.palgrave.com/us/book/9783319744476

This book makes the case for minimum wage as a way to improve well-being of middle-income workers, reduce income inequality, and enhance democracy.

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Minimum Wage: A Reference Handbook / ABC – CLIO

https://www.abc-clio.com/ABC-CLIOCorporate/SearchResults.aspx?type=a 

The Minimum Wage: A Reference Handbook By Oren M. Levin-Waldman. As of 2014, the minimum wage in Seattle is $15 an hour — double the federal minimum wage.

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“Wage Policy, Income Distribution, and Democratic Theory” By Oren M. Levin-Waldman

http://www.routledge.com/books/details/9780415779715/#reviews

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Dr. Oren M. Levin-Waldman, Ph.D., Professor at the Graduate School for Public Affairs and Administration at Metropolitan College of New York, Research Scholar at the Binzagr Institute for Sustainable Prosperity, as well as faculty member in the Milano School for International Affairs, Management, and Urban Policy at the New School. Direct email to: olevin-waldman@mcny.edu 

 

Oren M. Levin-WaldmanThe Difference Between Negative Rights and Positive Rights
By OREN M. LEVIN-WALDMAN, Ph.D.

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