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A Constitution of Contradictory Rights


Defeats in French and Dutch referenda have put the proposed EU Constitution in serious trouble. However, in the resulting political tumult, amazingly little is being said about the Constitution itself. That is unfortunate, since that is the source of the most essential problem--promising what cannot be delivered. In some ways, the EU Constitution parallels America's, defending rights such as freedom of religion and freedom of expression. However, it also guarantees a far broader array of rights, as well. Its Charter of Fundamental Rights includes rights to education, housing assistance, job placement services, preventative health care, social services, social security benefits, paid maternity leave, and more.

Unfortunately, that expansive combination of rights is inconsistent with a more fundamental right to be free. The Constitution says "No one shall be held in slavery or servitude" but it might have added: unless the EU itself is doing the holding. "Positive" rights to housing, education, health care, etc., provided by or mandated by government, require that someone else must pay for them. But the corresponding obligation necessarily violates others' "negative" right to liberty, by taking their income without their consent, despite the fact that liberty is also guaranteed as a fundamental right. Thus do we gain a fuller understanding of the following line from the EU Constitution:

"No one may be deprived of his or her possessions, except in the public interest..."

"Positive rights are really just desires that can be converted into rights only by employing government to take away others' property, violating their rights. In contrast, negative rights are prohibitions laid out against others, especially against government's overwhelming power. They are exemplified by the strictly limited, enumerated powers the U.S. Constitution granted our central government and what the Bill of Rights put off-limits to political trespass.

But negative rights are eaten away by every expansion of what government promises. Americans' constitutional rights reflect the Declaration of Independence's central assertion that all have inalienable rights, including liberty, and that government's purpose is to defend those rights. But the only rights that can be inalienable for all must be consistent with the equal rights of others. Every citizen can enjoy negative rights against government abuse without infringing on anyone else's equal rights, because they impose on others only the obligation to not interfere. But when the government creates new positive rights, extracting the resources to pay for them necessarily takes away others' inalienable rights and liberty.

Liberty means people rule themselves, and voluntary arrangements are the means of resolving conflict. But when government assigns positive rights to others, it means someone else rules over the choices and resources taken from those forced to pay. However, since no one has the right to rob others, if government is to remain within the narrow range consistent with equal rights, no one can delegate that power to government. America was founded on the idea that we have inalienable negative rights that do not originate with the government, which the government therefore cannot take away. But as people have learned to get public support by dressing up more things they wish others to pay for in the language of rights, our government has increasingly turned to violating the rights it was instituted to defend.

Unfortunately, what in America is an abuse of citizens' negative rights, correctable by more closely adhering to our Constitution, seems ensured by the proposed EU Constitution. Though noble sounding, it would guarantee and institutionalize a system of mutually inconsistent rights that could not, therefore, provide citizens the assurance that their right to liberty would be secure. And the more seriously its entitlements are taken, the less liberty will be left to Europeans.

Americans' greatest legacy is liberty. We want others to share it to the greatest extent possible, as well. Unfortunately, the proposed EU Constitution would not accomplish that result. That is why the French and Dutch rejections should not signal a renewed effort to twist arms and make further deals to rescue it. Instead, it should signal a return to first principles in its construction.


Gary Galles

Gary M. Galles is a professor of economics at Pepperdine University. He is the author of The Apostle of Peace: The Radical Mind of Leonard Read.


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