- Differentiate between negative rights and positive rights constitutions.
- Define constitutionalism.
- Analyze how different constitutional systems treat the individual.
- Define due process.
- Explain how the rule of law and its principles are important to individual freedom.
As discussed in Chapter 2: Political Behavior Is Human Behavior most countries have a formal constitution—a framework, blueprint, or foundation for the operation of a government. The constitution need not be in writing, in one document, or even labeled a constitution. Britain, New Zealand, and Israel do not have codified constitutions but instead use uncollected writings that establish the form of government and set out the principles of liberty.14 In many countries, a series of documents, usually called the basic laws, codifies the government structure and individual rights.15 If a country lacks a single document labeled a constitution, how does one know that certain writings serve as the country’s constitution? A constitution describes the underlying principles of the people and government, the structure of the branches of government, and their duties. It limits government, listing freedoms or rights reserved for the people, and it must be more difficult to amend or change than ordinary laws.16
A constitution may be expressed in a way that emphasizes civil liberties as negative or positive rights. When political scientists say a constitution specifies negative rights, this means that it is written to emphasize limitations on government. Consider the wording of the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”17 (emphasis added)
The amendment is phrased to focus not on what the government owes the people but on the limitations on the government’s ability to infringe upon the rights of individuals. The US Constitution leans toward being a negative rights constitution because most of the Bill of Rights is written in terms of restrictions on the government.
In a positive rights constitution, rights are written in terms of a government obligation to guarantee the people’s rights. For example, article 5 of the German constitution, the German Basic Law, states:
“Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures. . . . Freedom of the press . . . shall be guaranteed.”18 (emphasis added)
This positive rights constitution emphasizes the government’s guarantee of freedom to the individual. Though the US Constitution is primarily seen as a negative rights constitution, like most constitutions it also describes positive rights, as in those clauses that guarantee the right to something.19 Most democratic constitutions written after World War II are positive rights constitutions. After the Nazis used the existing German constitution to restrict people’s freedoms in Germany and in the countries they conquered, people in the affected countries wanted assurances that the government recognized its obligation to the people and not just the people’s obligation to the government. Similar fears caused many countries not occupied by the Nazis to create positive rights constitutions.20 These constitutions make the government the protector of freedom against all infringements. They do not just limit government action restricting the individual.
Positive vs. Negative Rights
In this short clip, the Center for Civic Education distinguishes between positive and negative rights.
A country’s constitution delineates the degree of freedom of action that the government allows the individual, and that degree varies by political system. An individualist system emphasizes individuals over the community, including the government, while a communitarian system emphasizes community cohesiveness while recognizing the importance of individual freedoms. Countries vary in terms of the nature of their systems and the degree to which they stress individualism or communitarianism.
What Are the Characteristics of Individualist Systems?
In an individualist system, individuals take precedence over the government. Society rests on the principle that individuals inherently possess rights that the government should preserve and promote. Two major styles of individualism are common today: libertarianism (also called classical liberalism) and modern liberalism. Libertarianism emphasizes restraints on government. Liberalism emphasizes the government’s obligation to enforce laws that protect personal autonomy and rights. Let’s review some of the different philosophies discussed in Chapter 3 in terms of how they impact civil liberties.
In libertarianism, individualists believe that governments exist to assist individuals in achieving their private interests. Therefore, libertarians place many restrictions (negative rights) on the government. As John Stuart Mill observed in his essay On Liberty (1859), in a strict individualist society:
“The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise.”21
The focus is on the individual, and the benefits to society that might flow from any restriction on the individual must be clear and convincing. This does not mean that the government can never restrict individual action, nor that the good of society need be wholly ignored. Still, it does mean there must be proof of sufficient harmful effects to justify any restraint. This is where the conflict between the individual and society occurs. It is here that the US style of “no law . . . abridging the freedom of speech” comes into play. For example, a person in the United States can say anything against any political candidate; they can even lie about the candidate.22 With the restriction on government action abridging free speech, no laws restrict that person’s conduct. However, they cannot say they will kill a candidate at three o’clock on Tuesday afternoon. This is a threat to an individual’s safety and to society’s law and order, so the government has laws to punish the person for making the threat. Further, some US statutes make a person liable for damages if they engage in defamation—that is, if they lie about and cause harm to a private person—although these statutes do not apply to lies about political candidates. Thus, even with the United States’ negative rights libertarian-style constitution, the government is not prohibited from imposing restrictions “abridging the freedom of speech” in every situation at all times.
In an individualist society formed in a liberal style, the government actively protects individual rights. For example, under the German Basic Law and its guarantees of free speech, the government can prosecute a person for making false statements or heckling a candidate while they are making a speech. This is a violation of the Basic Law because the rights of free speech “shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour.”23 Liberal governments are more proactive than libertarian ones in protecting the individual’s rights. Because they do so to protect the rights of all individuals for the good of society, they place more restrictions on the individual. Still, governments in liberal societies cannot wholly deny a person’s individual liberties.
What Are the Characteristics of Communitarian Systems?
A communitarian system emphasizes the role the government plays in the lives of citizens. Communitarian systems are grounded in the belief that people need the community and its values to create a cohesive society. Government exists not only to protect rights but also to form a political community to solve public problems. There is a public good, and it is the government’s job to protect it, even if that means restricting individual behaviors. Communitarians oppose excessive individualism, arguing that it leads people to be selfish or egocentric, which is harmful to a community. Individuals do not stand apart from society in discrete autonomy; they are part of society and have a role to play in protecting society.
How countries put communitarianism into practice varies widely. Some countries, such as China, Singapore, and Malaysia, have authoritarian governments. This style of government enforces obedience to government authority by strongly limiting personal freedoms. These governments emphasize and enshrine in their constitutions social obligations and the common good. The Chinese constitution states, “Disruption of the socialist system by any organization or individual is prohibited.”24 In article 35, the Chinese constitution provides that “citizens of the People’s Republic of China enjoy the freedom of speech, of the press, of assembly, of association, the procession and demonstration.”25 However, comparing these two clauses with actual practices in the People's Republic of China shows that the government’s emphasis is not on protecting individual freedom and autonomy but on protecting the government’s view of a cohesive society.26
Responsive communitarianism contrasts with the authoritarian style of communitarianism and the perceived selfishness of libertarianism. It seeks to blend the common good and individual autonomy while not allowing either to take precedence over the other. The individual is within society, the community, so the community constructs part of the individual identity. In responsive communitarianism, individual rights are balanced with societal norms of the good, and society or the government restrains the individual when individual action challenges an accepted norm. For example, the majority of people living in the United States today oppose slavery and racial injustice. However, had those people been born in the 18th century, many would have supported such concepts. Every community has standards that it declares essential to the common good—the common ground on which the community is formed. In circumstances where the common good takes precedence over the individual, conflict can ensue, and the society, including the government, must decide how to resolve the dispute.
The COVID-19 pandemic mentioned at the beginning of this chapter resulted in severe illness and mass deaths around the world. Many viewed government actions restricting individuals during the pandemic as justified because the challenge the disease posed to society was severe enough to warrant temporarily suspending certain freedoms. People accepted or rejected these government restrictions depending on the degree to which they accepted scientific explanations and on their views of individualism and communitarianism. Scientists explained how the disease spread, and government leaders urged compliance. In many areas of the world, the government instituted restrictions on movement, required that people wear face masks, and punished persons who violated these edicts. Some individuals claimed that their rights were being violated. Some argued that masks do not make a significant difference in transmission of the virus and are unnecessary in most situations. Significant scientific evidence refutes this claim, but such individuals refused to accept it. They also argued that it is their inalienable right to decide whether or not to risk becoming sick or dying, prioritizing that right over the risk they might pose to others.27 When initial illness rates started to decline and vaccinations became available, the argument shifted to when and how to open up the social sphere and whether to require that people be vaccinated to enter certain places or to participate in certain activities.28 These responses to the pandemic are a perfect example of the conflicts inherent in everyday situations that require a balance between individuals’ civil liberties and the government’s obligation to act for the common good.
Whether and to what degree a system is individualistic or communitarian does not determine if the system is a constitutional government. Simply having a document labeled a constitution does not give a country a constitutional government; to be considered a constitutional government, a country must practice constitutionalism.
What Is Constitutionalism?
The three main elements of constitutionalism are adherence to the rule of law, limited government, and guarantees of individual rights. The rule of law has four principles:
- Accountability: Government and private actors are accountable under the law, and no one is above the law.
- Just laws: The laws are clear, publicized, stable, and applied evenly. They protect fundamental rights, including protecting persons and property and certain core human rights.
- Open government: The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
- Accessible and impartial dispute resolution: Justice is delivered in a timely manner by competent, ethical, and independent representatives, and neutral decision makers are accessible, have adequate resources, and reflect the communities they serve.
Constitutionalism balances limited government with the fundamental worth of each individual. The government is limited because people have some right to make their own life decisions. The fundamental worth of each individual means that people have some right to self-determination, as shown in a bill of rights in a constitution. Maintaining a balance between government authority and individual freedom is a challenge.
Utilizing due process is part of the rule of law and constitutionalism, so it is more robustly defended in countries that practice constitutionalism than it is in those with constitutions that do not adhere to all the elements of constitutionalism.
Due process is a legal requirement that the government respect the rights of the people, and it is a demonstration of the rule of law and the balancing of government power with individual rights. In the US Constitution, the due process clause provides that no one shall “be deprived of life, liberty, or property, without due process of law.”29 This clause applies to all persons, not just citizens of the United States. There are two aspects of due process: procedural due process and substantive due process. Procedural due process concerns the written guidelines for how the government interacts with individuals, while substantive due process concerns the individual’s right to be treated fairly when interacting with the government. A violation of due process offends the rule of law because it puts individuals or groups above the law or treats individuals or groups without equality.
Due Process of Law
In this video clip, Randy E. Barnett, professor of constitutional law at the Georgetown University Law Center, looks at the overarching concept of due process through the lens of US government and its British origins.
When one thinks of the due process of law as government fairness to all persons, civil rights and civil liberties become intertwined. In the landmark same-sex marriage case Obergefell v. Hodges, the United States Supreme Court held that the due process clause of the 14th Amendment guarantees that the government will defend as a fundamental liberty the right to choose whom one will marry. The court also held that to deny that liberty would violate the Equal Protection Clause of the 14th Amendment because doing so would amount to unequal treatment of same-sex and opposite-sex couples, thus denying a same-sex couple equal protection of the law and amounting to a violation of the couple’s civil rights.30
Thus, same-sex marriage is both a civil liberty and a civil rights issue. The right to marry is a civil liberty because it is a freedom from government interference in one’s choice of a life partner. Same-sex marriage is a civil rights issue because to deny same-sex couples the right to marry is to subject them to unequal treatment. The case of same-sex marriage shows how both civil rights (equality) and civil liberties (freedom from government interference) are a part of the fair government treatment of individuals.