You are here

Costs of Unequal Treatment of Citizens by Abandoning Negative Rights for a Positive Rights Framework

This post is part of a series on “Rule of Flaw and the Costs of Coercion: Charting Undisclosed Burdens of the Administrative state,” and comprises one element of A Brief Outline of Undisclosed Costs of Regulation.

To many classical liberals (or libertarians), it is primarily the individual’s right of self-defense that is delegated to a government. We cannot unilaterally commence the exercise force against a peaceful person, and so cannot delegate that non-existent power of forcing other people to do the things we want them to do. This principle prevents citizens from violating one another’s rights and expands human liberty.  

Alternatively, statist, socialist, or administrative views maintain instead that some have a right to make decisions regarding dispensation (tax and regulatory) of the fruits of labor of others.

The non-initiation of force matters in peaceful society, but in the tax/administrative state, the non-aggression principle plays a minimal role in governing relationships between American citizens and their federal government.

In the sense of democracy as two wolves and a sheep voting on what to eat, politicians routinely promise to transfer resources in exchange for votes, regulatory favors, and power. That amounts to an inversion of government’s basic role for which power was delegated to it in the first place.

Rationalization of such seizure to was one prerequisite for enabling vast administrative state spending and regulatory programs, social policies that displace private and voluntary versions, and state and local alternatives.

Frédéric Bastiat, in “Law Is a Negative Concept,” (The Law, p. 25) said:

But when the law, by means of its necessary agent, force, imposes upon men a regulation of labor, a method or a subject of education, a religious faith or creed—then the law is no longer negative; it acts positively upon people. It substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives.

There remains little regard in the public sphere for distinguishing between negative and positive rights. There is no fervor for defending principles of individual rights, including the right to be left alone, against assorted contrived “rights.”  

Bastiat continues (pp. 24-25):

We must remember that law is force, and that, consequently, the proper functions of the law cannot lawfully extend beyond the proper functions of force. When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all of these. They are defensive; they defend equally the rights of all. 

By contrast, we now witness the regular creation of new categories of government-generated products and services for which the administrative state long since paved the way, such as guaranteed federal jobs, “free” community college tuition, a positive right to health care, or an “open” Internet (“In the 21st century, access to a free and open internet isn’t a privilege, it’s a right”).  

Sen. Mike Lee (R-UT), defending inalienable rights in his new book Our Lost Declaration, (p. 3), captured the problem here:

It’s not just that the Left’s “rights” are anathema to the true meaning of the word. It’s that their “rights,” by their very nature, usurp the rights of others. When governments grant collective rights, they erode individual rights, which in the United States are known as “negative rights.” When a central government administers a sprawling health care program, for instance, it ends up coercing its citizens by taking both their liberty and property.”

Executive Order 12866, which in part governs regulatory cost/benefit review in the modern administrative state, maintains that the pursuit of net benefits should include consideration, among other things, of “distributive impacts” and “equity.” But this is meant in a utilitarian net-social-benefit sense rather than one rooted in individual rights, building in the concept of positive rights, not negative rights. Non-aggression to significant extent is ejected from, not built into, the administrative state.

The tax/regulatory administrative state version of equity tolerates disparate impact with respect both to liberty and to who pays for government programs.

The federal income tax, passed alongside Federal Reserve Act 105 years ago, “both of which today are doing immeasurable harm,” would seem to violate equality before the law. Not that the administrative state need worry, because inevitably: “As the case law demonstrates, a progressive income tax system is constitutionally acceptable.”

According to the recent Treasury Department data, the top 1 percent paid 39 percent of all federal income taxes; the bottom 50 percent paid less than 3 percent. Ninety-seven percent of all income taxes are paid by half of taxpayers.

Yes, with a flat tax, the rich are still going to pay more. But where burdens are not proportionate, but progressive, there can be lack of concern for non-equal treatment under the law. And the spending programs financed by all that taxation can have sweeping regulatory effects, exemplified in today’s proposals for a Green New Deal.

The extra percentages that higher income earners pay over the low income earners who may pay no tax at all is not counted as a loss of liberty (nor does it qualify as very successful rent-seeking, if a small number of multi-billionaires “control America” as Bernie Sanders contends).

By contrast, limited government would leave little or nothing to control. The accumulation of positive rights is a cost of the modern spending/regulatory state that goes largely unheeded.