Postive rights, negative rights, and Gideon


Libertarians, in my experience, and from my philosophical explorations, generally believe in only negative rights, that is, freedom from interference in actions. This is often contrasted with positive rights, which is freedom to something. Often positive rights are seen when we talk about things like healthcare. When someone says that a person has the right to healthcare, they mean that said person ought to have healthcare provided to him or her.

People who lean libertarian are very shy of positive rights for many reasons, but largely for the main philosophical belief that no one — especially a government — owes you anything but to stay out of your affairs. This is the essential libertarian message. People should make their way to the best of their abilities on their own. There are, of course, exceptions and disagreements, but that is a very simplified version of what you will hear many libertarians say. As such, libertarians often believe in negative rights only and are often skeptical if not resistant to positive rights.

I was/am very much the same way until a stray remark that my professor made in class today. I am taking Democratic Theory, and one of the topics we discussed was equality. Now, as I’m sure we all know, different people within the political nebula feel differently about what equality means and how much of it should be enforced or provided for. However, one of the things that we talked about was equality under the law. Generally speaking, libertarians believe in equality under the law (and not too much else in that realm). But therein, it seems, lies a problem — at least in American politics.

I bring you, the 6th amendment to the U.S. Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Now, that seems really clear to us. When you see COPS or what have you, people are read their Miranda Rights and part of that is the fact that you have the right to an attorney, and if you can’t afford one, one will be provided to you.

But it didn’t use to be this way.

In fact, the state did not provide the poor with an attorney until 1963, under a court case called Gideon v. Wainwright. Gideon was accused of breaking into a pool hall. The man had been previously convicted on other crimes. So, when he was sentenced to prison, Mr. Gideon decided that he had a constitutional right to be provided a lawyer because he couldn’t afford one. Ultimately, the Supreme Court agreed with him, thus, the right to attorney that we see today.

This case presents an interesting conflict between the ideal of negative-only rights and equality under the law. A poor person who cannot afford a lawyer does not have equality under the law, whether it is between him and the government or him and another person with more money. However, the right to be appointed an attorney is a positive right. Many people, myself included, take this right for granted in our lives. It is something that few people, in my generation especially, take for granted. It is also not a topic that is brought up in political debate very much. But I think that our general acceptance of positive rights such as the right to attorney and the general suspicion of all positive rights cannot match up, and it is something that libertarians need to explore. Perhaps they have, and I have not been privy to such things.

So, if it is the case that we allow some positive rights, which ones do we allow? How can we determine what positive rights don’t violate our sense of no one owing us anything, while still making sure that we grant some positive rights where necessary, to ensure perhaps greater principles, such as equality under law?

I know many of my readers are modern liberals, but I’d really like a libertarian perspective om this too. 🙂

~V.A. Luttrell (who is off of work and heading home!)