I don't feel like rehearsing everything pertinent to the topic of negative rights and positive rights but over on City of God there have been a few posts on the subject of rights and some comments by J. P. Moreland. One of the issues raised was whether or not negative rights (the right to be protected by the government from harm in pursuit of something that benefits you) and positive rights (a right to something) can't be finessed by semantics. Some folks believe this isn't possible and that that is splitting hairs. The trouble is that it's not splitting hairs in terms of actual law. I know a fellow who adamantly believes it is wrong for any restriction of sale of any violent or sexually explicit video games to minors should be undertaken. It shouldn't be against the law and parents are ultimately responsible for the actions of others.
Oh, but wait, this fellow gladly endorses bans on smoking in public because when the chips are down he is willing to say that other people actually are responsible for his health to the extent that smoking is considered a health hazard. So it would appear that while any appearance of any censorship is bad government restrictions on smokers are totally fine.
In other settings I have seen a Christian conservative argue that abortion is not a right. I agree, completely, that abortion is not a right. But the man making this case fumbled by framing the issue by saying that the fetus has a negative right to not be killed. He could agree with the idea that the negative right to not breath in second hand smoke trumps the smoker's right to smoke in public.
But now we get into a problem of argument in light of precedent. Keep in mind that I can agree that some negative rights definitely trump other negative rights. The problem is that liberals have brought in Roe vs Wade and discussion of negative rights and government interference can't happen in a vacuum where no legal precedents are considered. If the interest of the state is in protecting the negative rights of citizens so that they are able to pursue their own interests without harm, but the citizens in question are not even born yet then what appears to be a consistent, then conservative negative-rights argument flies straight into the loving embrace of all those liberals who support abortion. Why? Simple, because the liberal can say that the negative rights of the would-be mother to abort her child trump the negative rights of the child who is not yet a citizen to have a life untouched by, well, being aborted.
Ironically, without considering legal precedent a negative-rights argument against abortion plays into the liberal's hands to defend abortion. Since Roe vs Wade ruled that the citizen has a negative right to not be barred from access to an abortion without a corresponding positive right to life for the unborn child a conservative attempting to limit abortion on the basis of negative rights and the role of the government toward its citizens is doomed to continually play into the hands of abortion advocates. Someone like Christopher Hitchens who finds abortion repellant but believes the state should not ban it nor promote it ends up being the most consistently libertarian. Social conservatives who would have judicial fiat make abortion illegal again don't seem to realize that the cure for the disease of judicial fiat and over-extension of federal power is ironically more of the same disease in government they were upset about in the form of Roe vs Wade.
Sadly it would appear that based on at least some of the arguments I've seen conservatives come up with about negative rights it would appear liberals have dominance on judicial matters not because they have views that may seem consistent to conservatives who have goals in mind for judicial policies ... but because they have views that can be more consistent in practice with their professed view of government.
Now let's say a woman aborts her child. In her state it is legal so she has done nothing wrong. Let's say she brings the child to term and then in the throes of post-partum depression and despair over some external circumstance kills her baby. Now she is a criminal according to the laws of the land. Why? Well, simple, before the baby was born it was hers to abort per the laws of the state but after the baby was born it became a citizen of the state and the United States and her killing the child became a crime because the state exists, in part, to prevent people from being able to pursue things that would benefit them without harm. What appears to be the hypocrisy of a liberal culture turns out to be, on any real examination, a consistent application of negative rights, That I find this ineffably lame does not change the reality that it is so. In a post Roe vs Wade legal ecology attempting to hang opposition to abortion solely on the basis of a negative rights view of government is doomed.
A conservative who attempts to defend the right to life on purely negative terms has to come up with an explanation for why abortion is wrong and when capital punishment would be considered appropriate. The reasoning "should" be simple, that if you deprive someone else of life you should be deprived of yours but the reality is that if there is no clear articulation in a post-Roe America for a positive right to life than a negative rights only approach to government ensures that there will rather literally be no positive right to life where the unborn are concerned. They aren't citizens yet so who gives a crap about them? If liberals had not been so utterly ingenius about framing abortion rights in negative rights terms all the way back at Roe vs Wade then conservatives might have a leg to stand on trying to argue that abortion is wrong on the basis of negative rights. Obviously that's not how history played out.
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