President Obama’s insistence that Americans have a right to healthcare has drawn predictable criticism from American conservatives, who insist that good health should be a private luxury reserved for those who can pay, or perhaps something provided by charity, rather than an entitlement to a public utility service that should be provided to all citizens of a modern society. Indeed, one of the major indictments in the conservative case against modern American progressive-liberalism is the charge that center-left Americans believe that new natural rights can be discovered or that new positive rights should be created by legislation.
But the conservative theory of rights does not do justice to the pragmatism and flexibility of the Lockean natural rights theory held by America’s Founders. According to that theory, natural rights are either inalienable, such as the rights to life and liberty (you cannot legitimately sell yourself into slavery), or alienable (individuals may alienate part or all of their natural right to self-defense, by forming a community and pooling the coercive power to enforce laws). In addition to these few, broad natural rights, there are potentially an infinite number of subsidiary rights that can be created by laws or constitutions. While natural rights are universal, the subsidiary or instrumental rights needed to promote them necessarily vary, in different times and places. For example, the right to life is universal, but the right to a free press is a subsidiary right that would be pointless in a preliterate tribal society.
Lockean natural rights theory, then, is quite flexible, particularly when it comes to lesser rights or entitlements that a sovereign people may choose to create to better achieve fundamental natural rights. Conservatives, however, typically fail to make the distinction between timeless natural rights and subsidiary rights that are time-bound and context-bound.
Here are the rights (all of them subsidiary rights, not primary or natural rights) listed in the first 10 amendments to the U.S. constitution:
The right to freedom of religion, press and assembly (First Amendment);
The right to bear arms (Second Amendment);
The right of homeowners to be free from the 18th-century practice of having soldiers quartered in their homes (Third Amendment);
Detailed procedural rights including warrants, bail, punishments, speedy trials and the use of Anglo-American common law (Fourth through Eighth Amendments).
(The ninth and 10th amendments are catch-all provisions, dealing with unenumerated or unlisted rights.)
Here are FDR’s proposed additional subsidiary rights, from his Second Bill of Rights speech in 1944:
The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
The right to earn enough to provide adequate food and clothing and recreation;
The right of every farmer to raise and sell his products at a return that will give him and his family a decent living;
The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
The right of every family to a decent home;
The right to adequate medical care and the opportunity to achieve and enjoy good health;
The right to adequate protection from the economic fears of old age, sickness, accident and unemployment;
The right to a good education.
FDR’s Second Bill of Rights, and similar proposals, are not intended to replace the original bill of rights, but only to supplement it. Progressives believe that we should have both the right to free speech and the right to minimal healthcare at public expense.
FDR made it clear that he viewed all of the rights in both the original bill of rights and the proposed Second Bill of Rights as lesser, subsidiary rights, important because they could enable American citizens better to pursue their basic, human rights to “life, liberty and the pursuit of happiness”:
This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.
As our nation has grown in size and stature, however — as our industrial economy expanded — these political rights proved inadequate to assure us equality in the pursuit of happiness.
We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.”[3] People who are hungry and out of a job are the stuff of which dictatorships are made.
Many conservatives argue that true rights are “negative rights,” in which the government simply leaves individuals alone, rather than “positive rights,” in which government is obliged to perform some positive service for citizens. But as Cass Sunstein pointed out in his excellent book "The Second Bill of Rights" (2006), the right to use a public judicial system is a positive right or entitlement, just as much as the right to use a public school system or a public hospital or a public road. The fourth through the eighth amendments to the federal Constitution involve the detailed structure of the positive right to a taxpayer-funded, free and fair police and court system, covering everything from bail to punishments and warrants. In other words, half of the eight substantive amendements in the Bill of Rights (amendments nine and 10 are catch-all categories dealing with unenumerated or unlisted rights) have to do with positive rights, not negative rights.
The essential dispute between progressives and conservatives is whether timeless natural rights must be pursued here and throughout the world forever using only the limited set of subsidiary rights that had been devised by British and American law before 1800.
If there really are universal human rights, they will be the same 200 years from now as they were 200 years ago. But helping to secure them in the world of 2213 may require the creation of lesser, instrumental rights by law or constitutional amendment that differ from the subsidiary rights of the U.S. of 2013 or 1813.
Franklin Roosevelt understood that, even if today’s self-described constitutional conservatives do not. As he observed in 1936:
The true conservative seeks to protect the system of private property and free enterprise by correcting such injustices and inequalities as arise from it. The most serious threat to our institutions comes from those who refuse to face the need for change. Liberalism becomes the protection for the far-sighted conservative.
... Wise and prudent men -- intelligent conservatives — have long known that in a changing world worthy institutions can be conserved only by adjusting them to the changing time. In the words of the great essayist, "The voice of great events is proclaiming to us 'Reform if you would preserve.'" I am that kind of conservative because I am that kind of liberal.
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