Government as the Primary Protector of our Rights and Liberties

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Our rights and liberties are not only created by people working through government, we also rely on government to enforce them and create remedies for their violation. This is a point made by Stephen Holmes and Cass Sunstein in their insightful book, The Costs of Rights: Why Liberty Depends on Taxes.3 They argue that the traditional distinction that conservatives make between “negative rights” and “positive rights” is mistaken. Supposedly, negative rights, such as freedom of speech, simply require that the government not interfere with some activity. In this view, it is only positive rights, such as the right to health care, that require a government action to realize them. But Holmes and Sunstein argue that in fact all rights require government action. They all require an active and well-funded government to enforce them – to make them real. Without a well-functioning legal and court system, for instance, our rights would be unenforceable and meaningless. Rights and freedoms, if they are to mean anything, require a vigorous response by government whenever they are violated. Every effort to prevent the government or private organizations from violating our rights must be supported by court rulings, injunctions, damage awards, etc. As Holmes and Sunstein explain:

Personal liberty cannot be secured merely by limiting government interference with freedom of action and association. No right is simply a right to be left alone by public officials. All rights are claims to an affirmative governmental response. All rights, descriptively speaking, amount to entitlements defined and safeguarded by law. A cease-and-desist order handed down by a judge whose injunctions are regularly obeyed is a good example of government “intrusion” for the sake of individual liberty. … If rights were merely immunities from public interference, the highest virtue of government would be paralysis or disability. But a disabled state cannot protect personal liberties, even those that seem wholly “negative,” such as the right against being tortured by police officers or prison guards.4

Protecting and enforcing our individual rights in this way is no small job. Think of all the various rights we now take for granted: the right to a fair trial, the right to own property, parental rights, voting rights, the right to not be denied a job because of race or gender, landlord and tenant rights, the right to run for office, the right to practice our religion, mineral rights, consumer rights, the right to a minimum wage, the right to marry, copyright protections, the right to an attorney, the right to collect a debt, abortion rights, the right against self-incrimination, the right to free speech, the right to emigrate, intellectual property rights, the right to strike, the right to petition government, the right to privacy, child custody rights, the right to a safe workplace, the right to be free from illegal searches, and so on. Interpreting and enforcing all of these rights requires an extensive network of administrative and judicial organizations on the federal and state levels – courts, attorney generals’ offices, civil rights agencies, etc. These large governmental efforts cost billions of dollars a year – money that must come from taxpayers. In other words, our rights depend heavily on an active and well-funded government. When governments find themselves in a position where they can’t effectively tax and spend – as has sometimes been the case in countries in the former Soviet Union – citizen rights and liberties become unenforceable and largely non-existent.

In short, while we often think of our rights as freedom from government, in fact we rely on an active government to establish and maintain those rights. This fact has led Holmes and Sunstein to conclude that efforts by anti-government ideologues to slash taxes and reduce government contradict their claims to also value individual liberties. They argue that “it is implausible to be ‘for rights’ and ‘against government.’ …All-out adversaries of state power cannot be consistent defenders of rights, for rights are an enforced uniformity, imposed by the government and funded by the public.”5 Since the existence and protection of our rights depend so directly on a healthy and vigorous state, if we want to be pro-rights we have to be pro-government to some extent as well. Without the power and authority of a well-financed state, rights are worthless.


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