In the ruling, an unexpected path toward ending the culture war? A discussion of rights.
On one hand, reaction to the Supreme Court’s majority opinion in Hobby Lobby was much ado about a modest decision, but on the other hand, the opinion — by implication — may have opened the door to ending our culture war and thereby saving the nation from permanent distemper and political dysfunction.
The majority opinion really broke no new ground about women’s rights. Since the Harris vs. McRae opinion of 1980, no woman has a fundamental personal right to have the government pay for her abortion.
So when the majority in Hobby Lobby ruled that a woman does not have an actionable claim on another private individual to pay for her decisions as to prevention of pregnancies, it was not stepping very far at all from the cost-allocation principle first enunciated in Harris vs. McRae.
Hobby Lobby was a case about who must pay for expressions of personhood when two private parties differ deeply about the values associated with such expressions. It did not deny women their fundamental right to have control over their reproductive options, holding only that they can’t impose the cost of living by their values on other citizens having very different values.
Here the opinion teaches us a very important lesson — one so far overlooked by nearly every commentator on the right and on the left: There are two kinds of rights, one more profound than the other.
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The first kind of right, the very fundamental kind, is usually called a positive right. Such rights can also be called natural rights, since our jurisprudence considers them to arise without the aid of government as pre-existing in our humanity itself.
These are the rights of life, liberty and property that John Locke praised and that entered our politics through the Declaration of Independence as “life, liberty and the pursuit of happiness” — humanity’s trio of inalienable rights. They function as private powers and prerogatives, fenced off from harm caused by government. These rights permit a person to act in the world as he or she believes to be right and can so afford.
These positive rights can also be considered rights of opportunity. They guarantee no outcomes.
The classic list of such rights is found in the Bill of Rights added to the Constitution. It includes such rights as freedom of religion, freedom of expression, freedom from police coercion, freedom to bear arms, freedom to petition the government, and freedom to live and to use personal liberties and for property to be untrammeled in the midst of society.
Each individual must pay for the exercise of these rights. We have no claim on our government to buy guns for us, pay for our political activities or support our churches.
Then, a second class of rights was invented by the Jacobins during the French Revolution. These were enjoyments created and paid for by the state, such as education, employment, retirement benefits, home mortgages and health care. These are called negative rights in that one person is entitled to the enjoyment, while another has a duty to provide it.
These negative rights became the jurisprudential justification for the modern welfare state. They are subsidized aids to the enjoyment of life, liberty and the pursuit of happiness.
With the advent of the baby-boomer culture war after the 1964-65 success of the civil-rights movement, a new set of such negative rights was proposed to better empower an individual’s psychosocial personhood. These were status demands for communal recognition and accommodation of individual identity based on the person’s views of his or her gender, age, disability, race, ethnicity, sexual preferences and so on. Duties were assigned to some citizens that others might benefit.
Many such negative rights were duly created by legislatures — and by the courts following legislative lead — usually under the public-policy goal of removing unjust “discriminations.”
Thus, the right to civil marriage for same-sex couples is a social convention agreed to or not by the body politic and so became another battleground in the culture war.
More recently, demands for censorship of other private citizens based on standards of political correctness fueled advocacy for another negative right — a duty imposed on some not to speak so that others might more securely enjoy their personhoods.
The Opinion section is produced by the Editorial Department to foster discussion about key issues. The Editorial Board represents the institutional voice of the Star Tribune and operates independently of the newsroom.