Recently, Harvard political theorist Danielle Allen wrote in the Washington Post about “The most important phrase in the Pledge of Allegiance”—“with liberty and justice for all.”
Allen recognizes that justice requires “equality before the law” and that “freedom is freedom only when it is for everyone.” But she confuses democracy with liberty, which is very different. She also replaces the traditional meaning of justice (“Giving each his own”) with an inconsistent version of “social justice.” And the two primary examples she cites, rights to education and health care, are inconsistent with both liberty for all and justice for all.
Negative and Positive Rights
We must recognize that the only justice that can be “for all” involves the defense of negative rights—prohibitions laid out against others (especially the government) to prevent unwanted intrusions. We do not have a right to be given things, and only the justice of negative rights can be reconciled with liberty “for all.”
That is why negative rights are what the Declaration of Independence and the Constitution were meant to protect. But those foundational freedoms have been, and continue to be, eroded by the ongoing search to “discover” (i.e., invent) ever-more positive rights.
Americans cannot have both liberty and social justice, the protection under which one can assert rights to education and health care, not to mention food, housing, etc. To have so-called social justice is to forego liberty and justice.
The Declaration of Independence, echoing John Locke, asserts that all have unalienable rights, including liberty, and that our government’s central purpose is to defend those negative rights. Each citizen can enjoy them without infringing on anyone else’s rights. Negative rights impose on others only the obligation not to invade or interfere. But when the government creates new positive rights, extracting the resources to pay for them necessarily takes away others’ unalienable rights. People recognize this as theft except in cases when the government does it.
Almost all of the rights laid out in the Constitution are protections against government abuse. The preamble makes that clear, as does the enumeration of the limited powers granted to the federal government. That protection is reinforced by the explicit description of the powers not given to the federal government.
In particular, the Bill of Rights describes the negative rights that Justice Hugo Black referred to as the “Thou Shalt Nots.” For example, the Bill of Rights’ central positive right, the right to a jury trial, defends citizens’ negative rights against being railroaded by government. And the 9th and 10th Amendments leave no doubt that all rights not expressly delegated to the federal government (including health care and education) are retained by the states or the people.
Involuntary Taking is Theft
Liberty means I rule myself, protected by my negative rights, and voluntary agreements are the means of resolving conflict. In contrast, assigning positive rights to others means someone else rules over my choices and resources are taken from me. But since no one has the right to rob me, one cannot delegate that right to the government and force me to provide resources for others, even if it is done by majority vote. That is not liberty or justice.
For our government to remain within its delegated authority, reflecting the consent of the governed expressed in “the highest law of the land,” it can only enforce negative rights. Positive rights to receive things, like healthcare or education, absent an obligation to earn them, must violate others’ liberty because a government without resources of its own must take income by coercion. To provide benefits under the umbrella of social justice, the government will have to violate individuals’ rights to themselves and their property.
Our country was founded on inalienable rights, not rights granted by Washington. That means government has no legitimate power to take them away. However, as people have discovered ever-more things they want others to pay for, and manipulated the language of rights to create popular support, our government has increasingly turned to violating the rights it was instituted to defend.
There is no way to square coercive “social justice” with “liberty and justice for all.”