What Are Negative Rights?

Negative rights signal the core of natural law in the American tradition, also known as our Bill of Rights. Without them, the Constitution might never have been ratified, or we might be a very different country today. Most of us can list them—the right to free speech, the right to keep and bear arms, the right to a trial by a jury of our peers, etc.—but what are they really? This is one of those concepts that gets tossed around but is never fully explained. Worse, there’s little said about the origins of negative rights, which limits most people’s ability to understand their meaning or appreciate their usefulness.

Negative rights, as opposed to positive ones, negate what the government can do to you, such as invade your home, fine you for saying the wrong thing, or take away the weapons you need to defend yourself against criminals—and government officials. Positive rights, on the other hand, are gifts from the government, rights that are supposedly granted to you and which almost always end up being false. Governments like to grant people rights to things like education, healthcare, and housing, but these things are not rights so much as programs that cost taxpayers a lot of money. Moreover, the results are often dismal failures, such as inner-city education, government healthcare, and public housing.

If I’m poor or easily offended by people who lay claim to their negative rights, then I’ll dismiss them. Why should I care if rich people want to keep their property? Why should I care if some people feel the urge to tell others what they think? And why should I care if my representative wants to increase the coercive powers of their friends in Washington, D.C.? I’m unhappy with my schools, hospitals, and housing, so negative rights are the least of my concerns.

Well, if you have any long-term interest in the viability of humankind, if you have children whom you want to be better off than you are, or if you want the country to generate more wealth in the future, then you should consider the utility of negative rights. The problem is at present you’re not thinking rationally about the costs you’ll incur when you limit negative rights. For starters, if you eliminate negative rights, it’s going to make it even harder to get good education, healthcare, and housing regardless of who produces or pays for those products and services.

To help you out, try thinking about what would happen if you were to eliminate negation generally. That’s what you’re doing when you limit negative rights. You’re removing the ability of individuals to negate the will of the collective. Why is that a bad idea? Because you’re setting yourself up for at best sluggish progress, Argentina, and at worst utter dystopia, North Korea. You’re asking for buildings made from the wrong materials, specialists who have no knowledge about their fields, and public policies that will have outcomes opposite the ones that are intended.

In short, you’re creating the conditions for an idiocracy. We already know people make mistakes, and we know that systems, corporations, and governments make serious messes. Now imagine nobody being allowed to question them before or after they do so. Correction becomes difficult.

If you investigate the origins of negative rights, you can get an even better idea of why they’re important for confronting ignorance and error. Negative rights in the Jeffersonian tradition aren’t just a matter of some archaic natural law—per Locke and Madison. Rather, they’re the essence of modern, reason-based science. Our greatest founder signals this in Query VI of Notes on the State of Virginia (1785) when he cites with approval his arch nemesis Georges-Louis Leclerc, the French naturalist also known as the Count of Buffon. Early in Query VI, Jefferson demonstrated that Buffon’s data was bunk, that his argument about the natural degeneracy of life forms in the Americas was absurd, and that his deference to the authority of his sources was debilitating. But Jefferson musters the courage to approve of a single sentence in Buffon’s treatise, so much so that he quotes it in French: “One sentence of his book must do him immortal honour: ‘J’aime autant une personne qui me releve d’une erreur, qu’une autre qui m’apprend une verité, parce qu’en effet une erreur corrigée est une verité.’” Translating into our own nation’s Spanish and English, we read as follows: “Amo a una persona que me libra de un error tanto como a otra que me enseña una verdad, porque en realidad un error corregido es una verdad.” And: “I love as much a person who relieves me of an error as another who teaches me a truth, because in fact an error corrected is a truth.” John Stuart Mill later called this “negative logic.”

Notes on the State of Virginia offer numerous demonstrations of why negation is the essence of progress. It is the way to the truth in all its manifestations, be they social, scientific, or political. Doubt, skepticism, and self-reliance are the only ways to avoid dogma, trickery, and groupthink. This is why the Enlightenment is the essence of constitutionalism as the proper way to promote freedom and progress. In other words, negative rights are indeed the scientific response to the natural tendency of government to impose flawed data, bad practices, and stupid conclusions. Jefferson’s praise for Buffon is in and of itself a demonstration of this. He dismisses nearly every affirmation Buffon makes, but he respects Buffon’s understanding of the importance of negation.

This is a big deal and you should want negative rights for this reason above all others. Forget about the individuals or the classes of people that negative rights protect. Think about progress itself. By its nature, a democratic government is at its best about consensus, and at its worst it’s about mob authority. This makes it analogous to doubly flawed science. As we saw with the “follow the science” mantra during COVID, sometimes government is itself flawed science. The only way to combat flawed science is to make it serious again; and the only way to do that is by way of the logic of negation, also known as skepticism—i.e., a constant process of challenging, doubting, and testing designed to check whatever the majority thinks. The specifically political version of this is the science of Jeffersonian individualism—i.e., negative rights. Negative rights preserve the experience of individuals, which preserves our ability to challenge government fiat through the sacred personal liberties of speaking, thinking, and acting in ways that can discredit flawed ideas. If you really want to “follow the science,” you’ll embrace negative rights and reject the logic of that mob of idiots who think science is about voting.

Photo by Jared Gould — Adobe — Text to Image