Art Carden  

Rights are Obligations, and That's the Problem

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In a consideration of the HHS mandate, Rachel Held Evans (who spoke at my institution a few months ago) asks whether it is OK for firms to refuse to provide contraceptive coverage as a matter of religious conscience. A few thoughts:

1. The problem with rights is that one person's right is another person's obligation. This isn't a problem when we're talking about negative liberty, or essentially the right to be left alone. It becomes a big problem when we talk about positive rights, such as a right to health care, a right to education, or a right to paid vacation. These things have to be paid for by somebody, and if we're going to claim that health care is Peter's right then we also have to claim that paying for Peter's health care is Paul's obligation. If Paul doesn't want to pay for Peter's contraceptives, mandating a "right" to health care for Peter requires bulldozing Paul's conscience.

2. Evans asks: "How is it preserving "religious liberty" to allow employers to impose their religious convictions onto their employees regarding what they can purchase with their compensation?" I'm intrigued by the way this is phrased: who gets to do the allowing? I wonder: why shouldn't we err on the side of allowing any voluntary contract? Why, for that matter, should we assume that we're in a position to allow or forbid anything consensual?

3. The devil is in the details. What counts as "health coverage"? What counts as "education"? Who gets to decide?

4. This is teaching us an important Hayekian point. We do not and cannot have all the relevant knowledge about "the particular circumstances of time and place." Attempting to engineer desirable social outcomes is dangerous because the people doing the engineering are human, just like you and me. They have limited information, and they face dysfunctional (and sometimes pathological) incentives. Suffice it to say that doesn't make me optimistic about curtailing liberty for many and giving power to few.

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COMMENTS (34 to date)
Ted Levy writes:

I made similar points in this article in The Freeman a few years back: Do We Really Want a Right to Health Care?

Stella writes:

I think the word "impose" here is at least as interesting as the word "allow." Paying someone in cash is in no way "imposing" on them how they spend their compensation. In fact, it's the opposite--compensation in kind, like insurance, is what limits what you spend your compensation on. If the in-kind compensation is freely negotiated at the beginning of the contract, that's no big deal, imposition-wise. As it is the mandate "imposes" not only on every employer who would rather not purchase birth control, but on every employee who doesn't care and would prefer other forms of compensation. A mandate demanding employers purchase their employees Bibles or guns would have the same effect.

Her more interesting point, I think, is her second one, where she asks whether she should stop paying her taxes if she's morally opposed to drone strikes. (She seems to reference "Render unto Caesar what is Caesar's and unto God what is God's" as saying it's okay for a Christian to pay for things they morally oppose). And taxes do go toward paying for birth control through Medicaid. There definitely feels like a difference between purchasing something directly for your employee and paying for it via taxes, but I'm not sure whether that feeling is rational or not.

Jon writes:

We should also keep in mind, however, that the State has been responsible for the laws and regulations required to advance and protect public health and safety for a great many years now and has a great deal of latitude in writing and enforcing the same as long as they're plausibly aimed at public health and safety. Or would you rather have a world without regulations of any kind? No speed limits, no fire or building codes, no limits on how long truckers can be required to stay behind the wheel?

This is why I sometimes think that it's only blithering idiots who claim that this is a matter of interfering with religious liberty, it seems much more plausibly to be about the limits of religious liberty, especially the limits on the ability of the powerful to impose their will on the less powerful outside the checks and balances of constitutional government.

Sam writes:

It's a stupid debate. The market failure in health care comes from the huge standard deviation in what people can expect to pay. Most people will have modest health costs while some will have costs in the hundreds of thousands. Saving for the expected value aka the costs of the "average" will make you over pay if you're in the modest tail, and go bankrupt if you're in the catastrophic tail. This is the failure that insurance, public or private, tries to solve.

Contraceptives don't have this property at all. They don't deserve to be covered by an insurance program of any type.

Les Cargill writes:

If Paul thinks that paying for Peter's contraception is "bulldozing his (Paul's) conscience", then Paul is an idiot.

Tracy W writes:

Jon: I suspect I am seriously misunderstanding you. You appear to me to be saying, given the context, that not buying contraceptives for someone is imposing your will on them. This sounds so silly I can't believe you mean it.

As for governments having the ability to pass regulations that are plausibly aimed at public health and safety, this is certainly true in the descriptive sense, and furthermore "public safety" is a loose term. But in a normative sense, I don't think it's a good idea. Science has shown us that a lot of things that are plausible are wrong, eg Newtonian physics is very counter-intuitive. Claims of plausibility are a very useful cover for rent-seeking behaviour too. "Public safety" arguments have been used to justify legal discrimination against Jews, Catholics, blacks, women, atheists, etc. The world is slowly grasping that some regulations are wrong, even if the government claims they're about public safety.

Tracy W writes:

A problem with positive rights to something is that it places an obligation on other people to provide it. Negative rights simply place an obligation on other people to not do something. With, say, a right to healthcare, doesn't that place an obligation on everyone to work to the maximum they can sustain until everyone has healthcare - that someone who chooses to spend more time with their kids, or to be a mediocre artist rather than a high income share trader is violating other people's rights.

Maniel writes:

Yes, of course, I do have the right to healthcare (insurance) and you do have the obligation to provide it. But enough for now - my double cheeseburger and fries are getting cold.

John Thacker writes:

Les Cargill:

Do you feel the same way if the regulations end up making you pay for Peter's acupuncture, chiropractic, or homeopathy?

If a company should offer a cafeteria with reduced (or even free, as in some tech companies food), should it be illegal if the food is all kosher, or halal, or vegetarian, or vegan, or non-vegatarian, or all raw food, or with no gluten free options?

Pajser writes:

The answer on most of Carden's questions is: the state is the owner of the territory. Its right to make laws is the same as the right of individual to make the rules in his apartment. One can challenge the state ownership; how the heck state got it? It is good challenge. The problem is, every challenge of that sort can be applied on private property over land as well.

Tracy W writes:

Pajser: who thinks that the state has the same right to make laws as the right of an individual to make laws in their own apartment? I suspect very few people reading this blog believe that.

For example, I could certainly ban all electioneering speech by anyone but the party currently in power in my apartment if my husband agrees. But would you thereby say a state has the right to ban all political parties in opposition from making speeches within its borders?

MingoV writes:

If a company is paying all or some of its employees' healthcare premiums, then the company should have a say in what types of care are covered. The ACA regulations prevent that by requiring that companies (with more than 50 employees) provide healthcare insurance and specifying the types of care that must be covered. The ACA tramples on the rights of company executives and boards of trustees to make decisions based on their mission and beliefs. A Catholic hospital, for example, should not have to pay for contraceptives and abortions that go against Catholic doctrine.

arthur_500 writes:


the State has been responsible for the laws and regulations required to advance and protect public health and safety for a great many years now and has a great deal of latitude in writing and enforcing the same as long as they're plausibly aimed at public health and safety

I am not aware that the State is responsible for public health.

I do understand that the State's responsibility for Public Safety has gone to extremes never before encountered. It is the position of the gubment that virtually anything comes under public safety.

I was of the understanding that our Liberty was ensured by protection from foreign interests and promotion of commerce in order that the INDIVIDUAL could be all that they could be. Since our Constitution is based on INDIVIDUAL liberty I would argue that the 'nanny-state' is outside of the Constitution.

Pajser writes:

Tracy W:

Pajser: who thinks that the state has the same right to make laws as the right of an individual to make laws in their own apartment?
I think that. It is my conclusion based on observation that state property over territory is justified on the same way as private property over land. In some cases these two seems to be the same thing. Swaziland, for instance, seems to be private ranch of some Mswati III.
... I could certainly ban all electioneering speech by anyone but the party currently in power in my apartment if my husband agrees. But would you thereby say a state has the right to ban all political parties ...?"
I guess you base ban on the consensus of owners (you & husband) and there are no tenants protected by contract, even implicitly. I think that state that bans speech in equivalent conditions (consensus of citizens, strangers not protected by contract) is about equally justified.

Les Cargill writes:

John Thacker:

Yes. I've transferred he funds to that person to use as they and the people they hired see fit. It's literally none of my business. I don't even want to know about it. I'd draw the line at something illegal, but then only if I found out about it. I am out of the loop at that point.

Not knowing is pretty powerful.

Ditto any cafeteria issue. I don't have to eat there. I'll ask for my kind of food; if it's not there, I'll eat elsewhere or buy it frozen at Sam's and keep it in a refrigerator.

It's all *really* that simple.

Tracy W writes:

Pajser: I can't think of a single state in the world, not even Switzerland, that passes legislation based on a consensus of citizens. Probably because if they did they'd never pass any legislation as someone would always disagree. Even Switzerland uses majorities of people in majorities of cantons or something like that.

So a state's rulemaking operates very differently to a few people sharing ownership. If consensus is required to justify state regulations then no existing state regulation is justified. A view which anarchists will applaud, but does mean that your analogy can't answer Carden's questions. The HHS mandate certainly doesn't have the support of a consensus of Americans.

Pajser writes:

Tracy W:

I didn't wrote that decisions about state are justified only by consensus. I used consensus to justify state decision only because you used consensus to justify decision in your apartment.

If you used some other principle to justify decision in private apartment, I'd use same principle to justify decision in state.

Clearly, consensus of the citizens is rarely reached in the state. But lack of the consensus of the owners is not unknown in private apartments. Let us assume that there is no consensus. Whatever is justified in the case of private property, I believe, should be justified in the case of the state.

ThomasH writes:

I do not see how requiring by law that employers use a part of employees' compensation to purchase a kind of insurance covereage that almost all employees want is an infringment of the EMPLOYER'S freedon of religion.

R Richard Schweitzer writes:

Let us go through the relationships by steps as we consider the obligations entailed in the relationships.

An employer decides to provide benefits to employees as part of the relationship between the business enterprise (the firm) and the employee. Among the benefits may be a specific number of holidays which can be taken as religious, celebratory, or purely leisure. The employer can decide to provide the employee with means of attaining specified medical benefits, and even undertake to share with the employee in the costs of specified benefits. If the employee desires or requires benefits beyond those available through the means provided by the employer, the employee is free to do so. At this juncture the employer is not under any "duty" or obligation to provide means of attaining specific benefits, or in fact, any benefits at all.

In that cited situation, the relationship between the employer and employee is such that the employer is free to determine its participation, if any, in benefits desirable to employees.

Enter now the political.

The relationship between employer and employee is now described and defined by legislation. The legislation determines specific benefit obligations as part of the relationship and thereby replaces the prior relationship with an artificial, constructed relationship based upon imposed obligations.

The discretion of the employer in the private relationship of employment is replaced by the discretion of bureaucratic authority established by legislation.

We are at that juncture.

Is the discretion of bureaucratic authority superior, morally or otherwise, to that of an employer in the private relationship with employee, absent the enforcement of legislation?

That is the correct framing of the question.

We now proceed to the other impacts of the exercise of bureaucratic discretion in imposing obligations upon employers that conflict with the employer's private ideology and rights to maintain that ideology. If the employer has the right to maintain the ideology there must be constraints upon the exercise of bureaucratic discretion.

Most rights can only exist by reason of constraints on human conduct in human relationships. Freedom of speech is dependent upon constraints against interference; freedom of religion is based upon constraints upon interference in its free exercise; and so on down the list of freedoms and rights. Some rights are in turn based upon obligations. Children's rights are really defined by the obligations of adults in their relations with children; animal rights are defined by the obligations of humans in their relationships with animals; and so on.

If we are to balance the "value" of the exercise of bureaucratic discretion against ideological freedom, there must be constraints on bureaucratic discretion.

That is the real nature of the question.

Bedarz Iliaci writes:

The State (or rather the nation) is the possessor, not the owner of a territory.

The national possession of a territory is fundamentally unlike individual ownership of a parcel of land.

The territorial possession is secured through the force of arms. While the ownership is secured through arguments, the kind of arguments that are made in law courts.

Since ownership is a right and a right is necessarily a conclusion to a series of arguments, and ultimately to the moral premise that a man must eat of the sweat of his brow.

Thus, theft is always wrong but conquests are not wrong in themselves.

Tracy W writes:

Pajser: your answer just brings us back to my original objection. Private owners of apartments can ban political speech in their homes, but very few people think a state can ban all political speech within its borders. Consequently the basis of state power is not the same as the basis of power over private property.

Alfreda Weiss writes:

One could say should a restaurant owner be forced to feed blacks? How far do "rights" go? When a health care system is designed to include basic health care items like vaccines, should they not be offered by the employer because what he pays for is the most important factor? We know how the gang of 5 will rule. It will be political siding with evangelical/Catholic religions because corporations and some religious organizations have more rights than people. The GOP gang don't believe in separation of church and state.
They support the patriarchy. Notice they leave male health care products alone.

Toady writes:

"Imposing" means if the employer is preventing the employee from getting birth control elsewhere. That is clearly not the case.

But where does this stop? Should we force doctors who are morally opposed to performing abortions to do them because their refusal is "imposing" on others?

Pajser writes:

Bedarz Iliaci, both private property and state territory are defended both on courts and by force. I agree that courts are more prominent for individuals and less for nations.

Tracy W, maybe claim 'state cannot ban' political speech is not exact and detailed enough. It seems that you claim that state has the right to ban political speech if consensus is met, which is unlikely (but I don't think you claim it is impossible.) Also, it seems that you claim that in private apartment political speech can be banned if consensus of all owners is met. (Which is possible, but not certain). If I understand your position well, this difference doesn't look essential; it is about degree of likeliness.

R Richard Schweitzer writes:

Let's take another example that could apply to this issue:

Under the authority to regulate interstate commerce, Congress might enact legislation establishing a Bureau of the Department of Agriculture with power to set standards for the operations of restaurants.

In the exercise of the legislative discretion provided to that Bureau, that Bureau determines that all Chik Fil A restaurants must remain open, fully staffed, 7 days a week, including Sunday, in direct contravention to the relationships between that employer and its employees.

Should there be a constraint on that exercise of bureaucratic discretion? If so, why? If not, why not?

Henry Miller writes:

The Left is all about having government impose obligations on some to the benefit of others.

Dan writes:

Jon writes:

No speed limits, no fire or building codes, no limits on how long truckers can be required to stay behind the wheel?

You have a fundamental misunderstanding of the argument. Limited government is not zero government. Reasonable public safety measures help keep one party from harming another, say through speeding and driving recklessly. That is the government's job, protecting the rights of it's people.

The government's job, however, is not to confer fictitious rights on some at the expense of others or to dictate how you may live if it is not harming anyone else. Positive rights are not rights at all. No person or government has the right to force others to their will or to pay for another persons activities. That is tyranny.

Kevin writes:

In an interesting side point here I have to wonder why this is even necessary. I was in a corner store restroom yesterday and there were condoms in one of those little turn release machines for $0.75. This is inexpensive. The most reliable and effective form of contraception is, in fact, free.

So if we limit this discussion to that particular objection it appears that employers and also tax payers are being made to pay a large over all amount for something that is relatively inexpensive AND that serves as an agent in an elective activity, yes people sex is itself a choice. Should we likewise be forced to pay several times the necessary cost for other elective procedures? Say plastic surgery?

I did ask my wife about female contraception and she was divided on the issue and spoke to its comparably higher cost and its alternative medical uses. It apparently regulates hormonal activity and can be prescribed for matters other than preventing procreation. However, the higher cost is still relative as it comes to about $60 per month which is still roughly $2 per day and if one has an employer to offend by this requirement that employer's provision of pay and other medical benefits would seem to me to provide more that the necessary income for the person to provide such a service for themselves.

Tracy W writes:

Pajser: my apologies for being unclear. I do not think that any state has the right to ban all political discussion within its borders. Furthermore, I think most people agree with me that a state does not have that right, unlike the owners of private property.

As for consensus, you raised that issue. I think it's irrelevant to the discussion as no state I know of relies on consensus. But for the record I think that even if a state had a consensus on this, it would still be wrong to pass such a ban.

So to summarise, I think the rights of a state over its territory is not like the rights of a private owner, and I think most people agree with me.

M M writes:

Education is not a right. Health care is not a right. Education is a tax. Health care is a tax. Fundamental rights are not taxes or taxed. Liberty is not "negative" right. It is a positive, absolute right endowed by the Creator.

Pajser writes:

Tracy, so, you believe that even with consensus, citizens of the state have no right to ban free speech. In the same time, owners of the private apartment have the right to do so — if they reach consensus.

I do not see the reason for that difference. In my mind, it is the same situation. Just different names are used. Can you help me by pointing more exactly where is the difference? Or do you think that difference is so basic that it cannot or shouldn't be explained?

R. L. Hails Sr. P. E. writes:

It is a red herring, a sham argument, to posit the extreme position that the government has no right to regulate the employer - employee relationship. There are a host of them (child labor, OSHA, etc.)

The narrow debate is what portion of the benefits package can the government dictate? A four week vacation? Company car? Mandatory dental insurance plane? Breast and hair implant insurance plan? Can an employer fire a three pack per day smoker? Fire an employee who daily consumes two fifths of bourbon?

The goal of every employer is to survive, to control costs below revenues. The government has put millions out of work by crushing regulations, for a host of good ideas, e.g. the spotted owl and the destroyed timber industry in the North West.

Should employers be forced to directly fund their employee's abortion? I think that funding should rest with the employee, not the employer. Mandatory insurance should only cover catastrophic, uncontrolled health problems.

Brian writes:

Just a couple of comments that need to be added:

Point 1-The U.S. Constitution, as far as I can remember, does not recognize any positive rights. Explicitly mentioned rights are all of the negative variety, in which government is forbidden to deprive people of the opportunity to act in a given way.

Carden's title has it almost right--a problem always arises when rights are viewed as obligations. This view is a fundamental corruption of what constitutional rights are.

This is a particular problem in matters of health care. Does the right to health care exist? Sure. It's implicit in the right of each person not to be denied life without due process of the law. No one may be PREVENTED from seeking health care. It's a negative right, like all others. But people frequently view it as a positive right, as in the government has the obligation to supply it. This is clearly wrong but widely believed. It was the misconception at the heart of questions asked in the 2008 election about whether health care is right.

A further faulty conflation is the equating of health INSURANCE with health CARE. The two are not the same, but several Supreme Court justices appear not to understand that, based on their questions when determining the consitutionality of ObamaCare.

Point 2-No one seems to recognize the real problem with the employer mandate. The government provided a religious (conscience) exemption for some employers. In doing so, IT HAS DEFINED WHAT CONSTITUTES LEGITIMATE RELIGIOUS PRACTICE AND WHAT DOES NOT. But this clearly runs afoul of the 1st Amendment, which prevents Congress from establishment of religion. If freedom of religion means anything, it means defining for oneself what constitutes appropriate religious practice. For example, stating that sectarian organizations are exempted only if they exclusively minister to their co-religionists violates the norms of universal charity common to many religious faiths. The government itself, then, has injected religious matters into the law--something it is NEVER allowed to do. There is little question that this portion of the law will--and should--be struck down.

Tracy W writes:

Pajser: you are right in your statement of my views, and I think most people agree with me. Which is why there's freedom of speech prescribed in a lot of government constitutions and the UN Declaration of Human Rights and the like (though also many breaches of those rights by real world states).

The difference in the situations is that they're different institutions, for different problems. As I see it, we want a powerful military to defend from other powerful militaries, but we don't want our own military to start oppressing us (amongst other things, economic freedom in the long term means more production to support the military). And freedom of speech is particularly vital as it's a way of allowing criticism of what the state is doing.
But most of us have crazy relatives and acquaintances who we want to be able to limit in many ways - who wants a rant at 3 in the morning when you've got work in 5 hours time?
But many other people may have different views on the differences to mine.

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