Edition 009: The Choice Between Negative and Positive Rights
By in large, the United States Constitution is a document of prohibitions. The First Amendment prohibits the government from abridging your speech. The Fourth prohibits unreasonable searches. The Fifth prohibits compelling you to testify against yourself. The Eighth prohibits cruel and unusual punishment. The Fourteenth prohibits the deprivation of life, liberty, or property without due process of law. Each one is a fence around state power, telling the government what it cannot do to you and stopping exactly there. Not one of them tells anyone what they must do for you.
That distinction is how our constitutional order is built. It presents a fundamental choice about what the law can see and what counts as a violation rather than simply the way things are. This was the design objective of men who had just fought a revolution against state power and were determined to constrain it. But they were equally determined that the political power they were creating could not easily be turned against the property they had accumulated.[1] Negative rights protect you from the government. They do not reach the private power that shapes your life, and they do not oblige the government to give you anything that would make that life livable.
***
The easiest way to understand the difference between negative and positive rights is to stop imagining and start comparing. Other constitutions written after the U.S. Constitution, often with it as a cautionary reference point, have made a different choice. They did not just limit what the government could do. They specified what the government must do.
***
The people who sat down to write the German Basic Law[2] had just lived through something the founders of the American republic had not. They had watched a modern, literate, and legally sophisticated state dismantle human dignity with bureaucratic precision, not despite the law, but through it. The Holocaust ran on the legal order. It was the machinery of the state, working as designed, and turned to the project of annihilating a people. Nothing in the framework existed that stopped it, because nothing required it to.
That is what a legal order produces when nothing stands above the legislature. When the German Reichstag passed the Nuremberg Laws, they used those laws against Jewish citizens, taking their citizenship, their professions, their property, and their lives. The legal system did not break down. It did its work. What was missing was a constitutional floor of rights the legislature could not legislate away — a principle that said there were things the law could not do to a human being, no matter who passed it. That is the absence we are talking about.
The Basic Law was written by people who had learned that lesson at an almost incomprehensible cost. Article 1 of the Basic Law states:
(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
(2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
(3) The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.
So Germany did something the American founders never contemplated. They set a floor in the law that could not be removed, making human dignity “inviolable” and human rights “inalienable,” invoking “community,” and binding the state so that its obligations to the people became absolute. They built it into their Basic Law itself because of the lesson they had learned.
***
In 1974, a military coup ended nearly fifty years of authoritarian rule in Portugal. Its liberation from dictatorship, oppression, and colonialism represented a revolutionary change and an historic new beginning. In fact, two years later, the people who wrote the new constitution stated in the Preamble:
Freeing Portugal from dictatorship, oppression and colonialism was a revolutionary change and the beginning of an historic turning point for Portuguese society.
The Revolution restored fundamental rights and freedoms to the people of Portugal. In the exercise of those rights and freedoms, the people's legitimate representatives have come together to draw up a Constitution that matches the country’s aspirations.
The drafters of the new constitution understood something that the founders of the American republic did not have to reckon with — that liberty without material security is not liberty at all. That a person who cannot afford a doctor, cannot find housing, and cannot access education, is not meaningfully free regardless of what the government is prohibited from doing to them.
Portugal committed itself to building a free, just and solidary society.[3] Free from state interference. Just in its distribution of opportunity and protection. And solidary, so that the people were bound together by mutual obligation and by the recognition that the freedom of each depends on the security of all.
The Portuguese constitution followed from that commitment, and it does not speak in abstractions. It specifies what its citizens are owed, and reads, to American eyes, like a document from another moral universe:
The right to housing. In Portugal, everyone has the right for himself and his family to a dwelling of adequate size satisfying standards of hygiene and comfort and preserving personal and family privacy.
The right to health. In Portugal, access to medical care is not a privilege contingent on employment or income. It is a constitutional guarantee, universal in its scope.
The right to education. In Portugal, the state is required to promote the democratization of education and ensure that it serves the development of every person, not merely those who can afford it.
The right to work. In Portugal, the government has an affirmative obligation to pursue policies that make dignified work available.
These are not aspirations written into a preamble and left to expire in practice. The 1976 Constitution established social rights, including universal healthcare, education, and social security, all written into the founding document and enforceable by courts. The people who wrote that document had lived under a regime that used the absence of rights as a tool of control and oppression. They understood that the question is not only what the government cannot do to you. It is what a just society must provide for you. And they wrote the answer into the law.
***
The EU Charter of Fundamental Rights[4] is similarly organized around the question of what human beings need to live with dignity. It opens, like the German Basic Law, with the inviolability of human dignity. But it does not stop there. It moves through freedoms of thought, expression, movement, and conscience. It covers equality before the law, between men and women, of children, of the elderly, and of people with disabilities. And then it moves to solidarity, citizens’ rights and justice.
The solidarity chapter of the Charter is where the positive rights live, including the right to fair working conditions, social security and social assistance, and healthcare. These are legally binding rights, enforceable against member states.
And then there is the digital dimension, which is the place where this document speaks most directly to the argument this book has been making. Articles 7 and 8 of the EU Charter guarantee respect for private and family life and the protection of personal data. Article 8 provides that everyone has the right to the protection of personal data concerning him or her. In the EU, your personal data is not a resource to be harvested and deployed against you in the next transaction. It is an extension of your person. It belongs, in a fundamental constitutional sense, to you.
The consequences of that are measurable. Discrepancies in approach between the EU and the United States have already led to the invalidation of two legal frameworks that serve to transfer personal data between the EU and the U.S.— because the EU’s courts looked at how the U.S. treats personal data and concluded it does not meet the standard of a fundamental right.[5]
Negative and positive rights arguably account for two different answers about what a person’s information is, who it belongs to, and what the law is required to do about it. The EU answer: it belongs to you, and the law must protect it. The American answer: it belongs to whoever can use it most profitably. And the company that holds it answers to its investors, not to you.
***
These are not exotic documents from alien political traditions. They are constitutions of Western democracies, written in living memory, by people responding to failures that the negative rights framework alone could not prevent. The German Basic Law was written in response to fascism. The Portuguese constitution was written in response to dictatorship. The EU Charter was written in response to the digital age — to the recognition that the threats to human dignity in the twenty-first century are not only government soldiers at the door but corporations with more data about you than you have about yourself.
Each of these documents made a choice. It was a decision, made by specific people at specific moments, that the negative rights framework alone was not enough. One where rights are positive as well as negative, dignity is enforceable as well as aspirational, and the law covers not only what the government cannot do to you, but what a just society must provide for you.
The United States of America has not made that choice. Not yet.
The question this book is building toward is whether we can. Whether the cultural capacity to demand it exists — or can be rebuilt. And whether, even if enough of us make that demand now, it would reach the private power that has grown, while we were not looking, into something the framers did not imagine and the Constitution was never built to constrain.
The systems described in the previous editions are running right now. They are learning and improving. The gap between what they can do and what the law requires them to account for is widening.
We must acknowledge that the negative space in the U.S. Constitution is not empty. It is full of people.
***
The next edition turns to American corporate and economic life. The same constitutional choice that left private power unconstrained, and government largely unobligated to the people inside it, also shaped the economic order that grew up underneath the Constitution. What do we owe each other is the question the Constitution declined to answer. The legal and economic frameworks that followed were designed to answer a different question — what is this worth — and they got very good at measuring output, ownership, and what a corporation owes its investors. They never developed a way to measure what those arrangements cost the people on the other side of them.
***
[1]See James Madison, The Federalist No. 10 (1787), https://avalon.law.yale.edu/18th_century/fed10.asp ((identifying "the various and unequal distribution of property" as "the most common and durable source of factions" and defending the proposed Constitution's structural features — extended republic, filtered representation, separation of powers — as designed to prevent factious majorities from threatening property rights through political action).
[2] Federal Republic of Germany. Basic Law for the Federal Republic of Germany. Translated by Christian Tomuschat et al., Federal Ministry of Justice, www.gesetze-im-internet.de/englisch_gg/englisch_gg.html. Accessed 4 May 2026.
[3] Portugal. Constitution of the Portuguese Republic. 1976, with amendments through 2005, Constitute Project,www.constituteproject.org/constitution/Portugal_2005. Accessed 4 May 2026.
[4] European Union. Charter of Fundamental Rights of the European Union. 2012, Official Journal of the European Union, C 326, 26 Oct. 2012, pp. 391–407, eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT. Accessed 4 May 2026.
[5] Court of Justice of the European Union. Data Protection Commissioner v. Facebook Ireland Ltd. and Maximillian Schrems. Case C-311/18, 16 July 2020. EUR-Lex,curia.europa.eu/juris/liste.jsf?num=C-311/18. Accessed 4 May 2026.
