From The Cost of Rights: Why Liberty Depends on Taxes by Stephen Holmes and Cass R. Sunstein:
Jay's note - Perhaps the greatest intellectual straight-jacket I bound myself in during my libertarian years was the idea that Power and Market (to use the title from Murray Rothbard’s anarcho-capitalist call to action) were at odds with each other -- that the State, i.e. “Power”, even at the most basic minimal government level, is essentially hostile to individual rights, as exemplified in “the Market.” That I held on to such a view for so long I would chalk up to not being especially bright, except for the fact that so many really bright people I either knew or had read held to the same belief, and many, apparently, continue to do so.
The Cost of Rights is a wonderful counter-argument to this most libertarian of paradigms. The authors argue that there is no dichotomy between positive law and negative rights; that, as an example, the right to be free from unlawful search and seizure of your property still requires government administrators to realize that freedom. In other words, the Market requires government Power to operate in a manner that even libertarians have to acknowledge must exist if it is to be as free as possible and honor the property rights of all. Of course, the libertarian counter might be the utopian promises of an anarcho-capitalist society which has never existed in modern times and dwells only in the fervent dreams of American libertarians and nightmares of everyone else (check out the numerous corporate aristocratic anti-democratic dystopias popping up in books and film). Sticking with the real world for a moment, we can learn from several hundred years of democratic government.
This excerpt is from Chapter Two: The Necessity of Government Performance:
The idea that rights are essentially aimed “against” government, rather than calling on government, is patently wrong when applied to what is sometimes called “private law.” Rights in contract law and tort law are not only enforced but also created, interpreted, and revised by public agencies. At both federal and state levels, courts and legislatures are constantly creating and readjusting the legal rules that give meaning to rights, as well as specifying and respecifying the various exceptions to the rules. By adjudication and legislation, public authorities not only enforce contracts but also decide which contracts are enforceable and which are unenforceable, unconscionable, or otherwise meaningless pieces of paper. Judges and legislators not only award damages to the victims of negligence but also identify which excuses are legally accepable for what might otherwise be classified as negligent behavior. The right of American citizens to sue an FBI agent for violating their rights under color of law is wholly defined by statutes and statutory and constitutional interpretation. The rights of out-of-state recreational and commercial fishers owe much of their content to judicial interpretation of the privileges and immunities clause and all of their content to positive law.
The rules defining ordinary rights of this sort are intricate, technical, and full of highly subtle qualifications. In American jurisdictions, for instance, contract law generally stipulates that an injured party cannot collect damages for a loss that he could have avoided after he learned of the breach of contract. An individual who asserts his rights under contract law or tort law must therefore master, or submit to, a complex tissue of rules and exceptions that are, in turn, administered by state officials. He must avail himself of the public power first for the specification of these rules (and exceptions), then for their interpretation, and finally for their enforcement.
The plaintiff’s right to bring an action at law against a defendant is not adequately described as a right “against” the state It is neither a right to be independent of the state nor a right that protects the rightsholder from the state, but rather a right to use state power to give legal effect to a private agreement, to enjoin trespassers from entering private property, to collect compensatory or punitive damages from someone who has negligently or recklessly caused an injury, and so forth. When I sue someone under contract or tort law, I am not trying to get the government “off my back”; I am trying to get it “on my case.” In private law, the rightsholder does not need government forebearance, he needs government performance.
….. Some constitutional rights depend for their existence on positive acts by the state, and the government is therefore under a constitutional duty to perform, not to forbear, under the Constitution as it stands. If it allows one person to enslave another, by doing nothing to disrupt an arrangement that amounts to involuntary servitude, the state has violated the Thirteenth Amendment. Under the First Amendment’s protection of freedom of speech, states must keep streets and parks open for expressive activity, even though it is expensive to do this, and to do it requires an affirmative act. Under the protection against “takings” of private property without just compensation, the government is probably under an obligation to create trespass law and to make it available to property owners, and a partial or complete repeal of the law of trespass--a failure to act, in other words, to protect private property--would likely be unconstitutional. If a judge accepts a bribe offered by a defendant and therefore does nothing to protect the plaintiff’s rights, the judge has violated the due process clause. If a state declines to make its courts available to enforce certain contract rights, it has probably impaired the obligations of contracts, in violation of the contracts clause. In all these cases, the government is obliged, by the Constitution, to protect and to perform.
Practically speaking, the government “enfranchises” citizens by providing the legal facilities, such as polling stations, without which they could not exercise their rights. The right to vote is meaningless if polling place officials fail to show up for work. The right to just compensation for confiscated property is a mockery if the Treasury fails to disburse. The First Amendment right to petition for a redress of grievances is a right of access to government instiutions and a right, incidentally, that assumes that the government can perform for the benefit of aggrieved citizens. Nor is this all.
If an agency of the American government tries to deprive anyone of life, liberty, or property, it is required to give that person timely notice and provide an opportunity to be heard before an impartial body. The right to subpoena witnesses in one’s own defense is useless if the court’s solemn writs and summonses are greeted with laughter. And what does it mean to say that state and federal governments are prohibited from denying equal protection before the law if not that they are required to provide it? Protection against unequal treatment by government officials requires other government officials to receive and resolve complaints. The constitutional right to due process -- like the private right to bring an action in contract to tort -- presupposes that, at the taxpayer’s expense, the state maintains and makes accessible complex and relatively transparent legal institutions within which the cumbersome formalities of fair, public, and understandable adjudication occur.
Admittedly, some important constitutional rights are plausibly styled as dueties of the government to forbear rather than to perform. But even those “negative rights”-- such as prohibitions on double jeopardy and excessive fines -- will be protected only if they find a protector, only if there exists a supervisory state body, usually a court of some kind, able to force its will upon the violators or potential violators of the rights at issue. Even rights reasonably described as operating “against” the state require the (affirmative) creation and stregnthening of relations of oversight, command, and obedience so that rogue officials (including police officers and prison guards) do not behave cruelly or discriminatorily. In some cases, public officials must indeed be kept out of protected zones. But those zones qualify as protected only because of affirmative government, and to achieve the desired protection, vulnerable individuals must have relatively easy access to a second, higher-level set of government actors whose decisions are deemed authoritative.
Nonperforming public officials -- whether apathetic or bribe-taking or remissly supervised-- will not enforce constitutional rights any more effectively than they enforce rights held under statutes and common law. The very idea that certain kind of process is “due” demonstrates that constitutional rights impose affirmative obligations on the state. Giving citizens access to courts and other adjudicative forums is not like giving them access to natural harbors and navigable waters, because the government must not ony brush aside hindrances to access, but must actually create the institutions to which access is being granted. “Avenues of relief” are maintained in passable condition by government officials. The operating expenses of American courts alone run in the billions of dollars every year, and the American taxpayer picks up the tab.
Rights and Powers
Invariably, rights pit power against power. Under tort law, rights enlist the power of government to extract compensatory or punitive damages from private wrongdoers. Under constitutional law, rights bring the power of one branch of government to bear upon wrongdoers from other government agencies. For instance, in the 1960s, the Supreme Court protected the rights of students to wear black armbands to school (in a protest against the Vietnam War) by overruling public high school authorities. Protection “against” government is therefore unthinkable without protection “by” government. This is exactly what Montesquieu had in mind when he asserted that freedom can be protected only if power checks power. No legal system can defend people against public officials without defending people by means of public officials.
When a right is enforced, moreover, somebody wins and somebody loses. The enforcement of a right (whether it is a right against racial discrimination or a right to collect compensatory damages) is “accepted” by the losing party because that party has no choice, that is, because the full power of the state has come down on the side of the rightsholder, and thus against the losing party. Conversely, curtailing a right often involves curtailing the power of the government agency that enforces it in the face of serious resistance. For instance, if a political pressure group wants to cut back the existing rights of American workers, it will try to diminish the authority of OSHA, the EEOC, or the NLRB. This is strong evidence that rights depend on power.
The dependency of liberty on authority should be especially obvious in the United States, where rights against abuse by state and local officials have long been enforced by federal officials. The “incorporation doctrine,” which extends most of the Bill of Rights to the states, protects individual liberties not by removing government from the scene, but by giving national authorities the power to overrule state authorities. The Fourteenth Amendment prohibits the states from denying anyone equal protection of the law or depriving them of life, liberty, or property without due process of law. Such a prohibition would be hollow if the federal government did not have the power to bear down on recalcitrant states.
“Congress shall have power to enforce this article by appropriate legislation.” All three Civil War amendments contain such enforcement clauses. So the amended Constitution explicitly vests the federal government with the capacity to realize in practice the individual rights it proclaims in principle. Without such governmental powers, rights would have no “bite.” To protect the rights of southern blacks, more than once in our history the national government has dispatched federal troops to the South. Without such a show of force, the individual rights of a large group of Americans would have remained a cruel charade. To prevent racial segregation in education, national involvement was necessary, sometimes including the threat to meet violence with violence. Until Congress and the former Department of Health, Education, and Welfare applied irresistible financial pressure, in any case, school districts in the deep South simply ignored the Supreme Court’s desegregation orders. When state government is discriminating, the right to be free from racial discrimination, like the right to property, requires affirmative assistance from government, in this case the nation itself.
In the area of voting rights, the same pattern has prevailed. The Voting Rights Act of 1964 -- designed to vindicate constitutional rights -- called for more involvement by the national government, not less. Until Congress legally prohibited the use of literacy tests, states contrived to disenfranchise black Americans for reasons of race. This is just a further illustration of a general truth: individual rights are invariably an expression of governmental power and authority.
Not included in the original Constitution, the Bill of Rights was added to the Constitution two years after its ratification partly to appease those who desired a weaker and more constrained national government. But that was not its only purpose, and that has not been its effect in practice. By extending the scope of the Bill of Rights, the Supreme Court, a national institution, has steadily encroached on preserves of state power. State autonomy has been whittled away and federal power correspondingly enhanced in the name of individual rights. (Admittedly, the opposite has also occasionally occurred.) Indeed, one of the consequences of the enhancement of federal power has been to apply the prohibition on uncompensated takings of private property to the states -- requiring state governments, for instance, to compensate people, as a matter of federal constitutional law, when regulation has rendered their beachfront property valueless.
Decentralizing government has no logical connection with limiting the encroachment of government into society. Many of the original limits on Congress’s authority were not meant to preserve immunity from government, but simply to clear a space for unsupervised state regulation, as opposed to federal regulation, of private economic behavior. To create a national market against the protectionist impulses of local authorities, the federal government had no choice but to erode state regulatory autonomy. And this is perfectly normal: a lower authority will usually retreat only when a higher authority steps forward.
The framers of the American Constitution sought to establish a strong and effective government armed with capacities that the anemic government created under the Articles of Confederation notoriously lacked. A constitution that does not organize effective and publicly supported government, capable of taxing and spending, will necessarily fail to protect rights in practice. This has been a lesson long in learning, and not only for libertarians and free-market economists, but also for some human-rights advocates who have selflessly devoted their careers to a militant campaign against brutal and over-mighty states. All-out adversaries of state power cannot be consistent defenders of individual rights, for rights are an enforced uniformity, imposed by the government and funded by the public. Equal treatment before the law cannot be secured over a vast territory without relatively effective, honest, centralized bureaucratic agencies capable of creating and enforcing rights.
pgs 49-58
From “The Cost of Rights: Why Liberty Depends on Taxes” by Stephen Holmes and Cass R. Sunstein, Chapter Three: No Property Without Taxation
A liberal government must refrain from violating rights. It must “respect” rights. But this way of speaking is misleading because it reduces the government’s role to that of a nonparticipant observer. A liberal legal system legal system does not merely protect and defend property. It defines and thus creates property. Without legislation and adjudication there can be no property rights in the way Americans understand the term. Government lays down the rules ownership specifying who owns what and how particular individuals acquire specific ownership rights. It identifies, for instance, the maintenance and repair obligations of landlords and how jointly owned property is to be sold. It therefore makes no sense to associate property rights with “freedom from government” than to associate the right to play chess with freedom from the rules of chess. Property rights exist because possession and use are created and regulated by law.
...property rights depend on a state that is willing to tax and spend. Property rights are costly to enforce. To identify the precise monetary sum devoted to the protection of property rights, of course, raises difficult issues of accounting. But this much is clear: a state that could not, under specified conditions, “take” private assets could not protect them effectively either.
...Many political conservatives, but not they alone, urge government to “get out of the marketplace.” For their part, some liberals counter that government quite legitimately interferes with, or “steps into,” the market whenever and wherever disadvantaged Americans are at risk. But this familiar debate is built on sand. No sharp line can be drawn between markets and government: the two entitites have no existence detached from one another. Markets do no create prosperity beyond the “protective perimeter” of the law; they function well only with reliable legislative and judicial assistance.
Of course, inept governments can and do commit economic blunders. Without doubt, ill-devised and poorly timed policies can and do make markets function poorly. The question is not free markets or government but what kind of markets and what kind of government. Governments not only have to lay the essential legislative and administrative foundations for a functioning market economy, they can also act to market systems more productive. They do so, for example, by adjusting the exchange rate of the national tender against foreign currencies, by disrupting anticompetitive monopolies, by building bridges and railroads, and by financing the vocational training of the future workforce. As even Friedrich Hayek, the great critic of socialism, remarked, “The question whether the state should or should not ‘act’ or ‘interfere’ poses altogether false alternative, and the term ‘laissez-faire’ is a highly ambiguous and misleading description of the principles on which a liberal policy is based.”
pp. 68-69
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