Are You Positive?

0:00Welcome to First Principles in the Last Things on Radio Free Hillsdale 101.7 FM, where we follow the news below the headline and consider it, constitutionally I'm your host Andrew Scofield and does the constitution guarantee you clean drinking water. Earlier this month a federal appeals court said it does not and that raises a fundamental question what does government actually owe us? Is government supposed to provide certain things for us or is it's primary job to protect the rights we already have? That distinction between positive and negative rights is one of the oldest questions in political philosophy and so today's question is simple. Are you positive? A case about contaminated water in Jackson, Mississippi gives us a chance to see what that means in practice. The case is sterling the city of Jackson. Residents sued after alleging that lead entered the

1:01municipal water supply because of actions and failures by city officials. They also alleged that officials told residents the water was safe even though they knew about the contamination. The plaintiffs brought their claims under the 14th amendments guarantee of due process and on September 4th the Fifth Circuit rejected those claims and affirmed dismissal of the lawsuit. The court put it bluntly. It is undisputed that the constitution does not guarantee clean water but the question wasn't whether clean water matters. Of course it does. The question was does the constitution create a right that can be enforced through this particular lawsuit? Consider two different ideas of a right. A negative right tells government what it cannot do to you. It cannot censor your speech. It cannot conduct an unreasonable search and it cannot the preview of life, liberty or property without due process. A positive right by contrast requires government to provide something. Food, housing, medical care, education,

2:03or potentially clean water. And saying government ought to provide something isn't necessarily the same thing as saying that the constitution requires it. The Fifth Circuit relied on the Shaney V. Winnebago County where the Supreme Court said that the due process clause generally does not impose affirmative obligations on the state to provide services or to protect people from harm. In other words, the clause restrains what government does. It doesn't guarantee what government delivers. The constitution can tell government you may not do this to me but that doesn't automatically mean you must provide this for me. But sterling was not quite that simple. The plaintiffs argued that government officials had contributed to the contamination and then misled residents about it. One dissenting judge emphasized that distinction. Arguing that the majority had failed to fully address the plaintiffs state created danger theory. And that's a different claim from the one most people are hearing because there's a difference between saying that government

3:06must provide me with clean water and saying government cannot expose me to a serious physical danger and then conceal that danger from me. The first asks government to provide. The second asks government to stop harming. The Fifth Circuit majority concluded that the plaintiffs had not established a sufficiently rooted constitutional right under the 14th Amendment. And so what does it case about drinking water teach us about government. It teaches us that rights and benefits are not necessarily the same thing. Government may provide something because elected officials decide that it should but that doesn't automatically make it a constitutional right. The deeper principle is about the purpose of constitutional government. A constitution can tell government here is what you may not do but that leaves a separate question. What should government do? Those questions are not always answered by the same institution. Sometimes it's answered by courts

4:08often it's answered at the ballot box which means that if you want safe water for your community the answer may not be a lawsuit. It may be a city council meeting of votes or a call to your representative. So are you positive? Before we call something a constitutional right we have to ask. Is the government being told what it must provide or what it must never be allowed to take away? Thank you for listening to First Principles and Last Things. I'm Andrew Scofield. If you want to follow the news below the headlines be sure to follow along on Spotify or Apple podcasts. I hope to see you next time when we dive into the next big story on Radio Free Hillsdale 101.7 FM.