TCS Daily


Reagan and Rights: Positive and Negative

By Stephen Bainbridge - June 8, 2004 12:00 AM

Ronald Reagan's passing has brought forth a host of commentary from both the left and right. One of the key questions being raised, of course, is how we should assess Reagan's legacy. Most observers would see a deep commitment to liberty as being a central theme of that legacy. Yet, it is precisely that aspect of Reagan's legacy that William Saletan forcefully challenged in Slate:

"Reagan saw freedom as a set of legal rights. In his farewell speech, he recalled the unwelcome trend that had drawn him into politics: 'Through more and more rules and regulations and confiscatory taxes, the government was taking more of our money, more of our options, and more of our freedom.'

"Reagan also saw private institutions as guardians of freedom. 'Between the government and the individual, there are a great number of natural, voluntary organizations which people form for themselves -- like the family, the church, the neighborhood, and the workplace, where people learn, grow, help, and prosper,' he opined in one speech. In another, he argued, 'We must remove government's smothering hand ... to reinvigorate those social and economic institutions which serve as a buffer and a bridge between the individual and the state.'"

Saletan thinks Reagan was wrong:

"Liberty doesn't necessarily contract as government expands. Sometimes, you need more government to get more liberty."

Liberty is the wrong word, of course. Saletan is really talking about the difference between positive and negative rights. Reagan was a proponent of negative rights; most notably, Reagan espoused the right to be left alone. In contrast, what Saletan calls liberty is really a set of positive rights -- a right to an education, a job, etc....

Contrary to Saletan's argument, positive rights cannot be achieved without limiting the liberty of individuals. During the Cold War, for example, totalitarian regimes justified their (egregiously bad) humans rights records by stressing how they achieved positive rights the West left to the vagaries of the market place. Yet, they did so through totalitarian regimes characterized by central planning that proscribed both freedom of contract and private property.

Modern defenders of positive rights, as the following discussion makes clear, claim that such rights can be achieved without a police state:

"Defenders of positive liberty say that there is no need for it to have such totalitarian undertones. ... For example, if the state asks the citizens what they want instead of making that decision for them, positive liberty can be guaranteed without any hint of totalitarianism."

Yet, notice that even here we see the potential for the tyranny of the majority. If the majority thinks all employees should be paid a living wage, the freedom of individual employees to take a lower wage and of individual employers to offer a lower wage is circumscribed. Again, we often see the same sort of disregard for private property and freedom of contract in nominal democracies as in totalitarian regimes. (For a recent and perhaps trivial example, see the kerfuffle in Santa Monica, California -- often known as the "People's Republic of Santa Monica" -- over hedge height restrictions.)

I confess to finding myself utterly unable to understand the left-liberal mindset exemplified by Saletan; Reagan's philosophy seems so self-evidently correct. If memory serves, however, Russell Kirk observed somewhere in his vast writings that conservatives are born, not made; presumably the same is true of liberals.

Yet, let me take a quick stab at persuasion. As the analysis thus far suggests, private property and freedom of contract are at the center of the debate over positive and negative rights. You cannot achieve positive rights of the sort Saletan likes without infringing on someone's negative rights to private property and/or freedom of contract. As a result, achieving a system of positive rights comes at a very high cost not only to individuals but also to society as a whole.

As societal decision making norms, private property and freedom of contract do more than just promote economic growth. These economic liberties have almost always gone hand in hand with other personal liberties. Private property and freedom of contract, moreover, have been a major factor in destroying arbitrary class distinctions by enhancing personal and social mobility. When we infringe on private property and freedom of contract in the name of creating positive rights, we thus infringe on the very engine of democracy. As Russell Kirk observed, "freedom and property are closely linked: separate property from private possession, and Leviathan becomes master of all." Ronald Reagan surely agreed.

Reagan's great legacy is that he restored protection of private property and freedom of contract to the political debate as legitimate social goals. In doing so, he fortified the other freedoms William Saletan and the rest of us so often take for granted. We owe him our thanks.

Stephen Bainbridge is a professor at the UCLA School of Law and writes the blog www.ProfessorBainbridge.com.


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