Reader John Ryskamp passes along this article, and says “There is some speculation that the Court will use Kelo [v. City of New London] to revisit, for the first time in thirty years, the idea of affording some Constitutional recognition to housing.” I’m not sure where this “some speculation” is coming from—certainly I’ve heard nothing of the sort—but in any case, the argument seems to be that the Supreme Court should declare that “housing” is a right, implied somehow from the bill of rights, and therefore that the Supreme Court could use Kelo to declare that the Constitution requires me to pay for someone else’s “housing.”
He bases this argument on the “new bill of rights” announced by Franklin Roosevelt, and which was, of course, never enacted into law by the Congress or the people of the United States. Despite this fact, and the fact that “positive rights”—i.e, laws forcing me to pay for others to have stuff that they want—violate my express rights as cited in the Constitution (my right to my property, among others)—Ryskamp argues that the Courts have rejected “positive rights” claims because such “rights” would “seem[] to involve the Court in an executive branch function, a violation of the separation of powers...[and] would involve the Court in saying what, in fact, is housing, and forcing it into an executive, supervisory role of determining if government was fulfilling its duty.”
First of all, this is not why the Court has rejected claims of positive rights. It has rejected such claims because they do not exist in the Constitution and because their implementation would violate the express provisions of the Constitution. Secondly, this would not be an “executive branch function,” since the function of creating new rights is legislative, if anything. The legislature is what writes the laws and redistributes property. Thirdly, a “supervisory role of determining if government [is] fulfilling its duty” is not an executive function, either, but a judicial one—that’s what a writ of mandate is, for example. So Ryskamp’s understanding of the reasons courts have rejected these claims—an understanding he backs up with no citations or discussion of any sort—is completely wrong.
Now, what argument does Ryskamp make in favor of a “right to housing”? At this point his article veers off into language that makes literally no sense. “If facts are rights, which facts are they...? Facts of the individual inhere in the individual and are never violated. ‘Never’ goes to ‘incarnation’—when the founders could not exercise the protected speech they had chosen to exercise, they exercised it otherwise, but they exercised it.” But in the end, Ryskamp says
I came up with this New Bill of Rights:no individual shall be involuntarily deprived of housing;
no individual shall be involuntarily deprived of education;
no individual shall be deprived of maintenance;
no individual shall be involuntarily deprived of liberty;
no individual shall be involuntarily deprived of medical care.
(Ryskamp does not explain why a person may not voluntarily give up this alleged right to maintenance, nor does he explain how a person could possibly be deprived of the education he has.) I guess the reason that these are “rights” is because they’re so important to people’s happiness. In other words, if I want it really badly, I have a right to it. Okay.
First, all of these rights are already guaranteed by the existing Bill of Rights, if you read them literally. The Constitution says that no person shall be deprived of his liberty or property without due process of law. If he has housing, or maintenance or medical care, nobody can deprive him of it without due process.
But, of course, what Ryskamp really means is not deprived, but denied. This New Bill of Rights declares that no person shall be denied these things. If that’s the case, then every person’s rights are constantly being violated in a state of nature. You might think that, being all alone on a deserted island, you at least can’t be a victim of crime? Turns out that’s not so—in fact, the more alone you are, the more you’re suffering from crime, because your rights to housing and maintenance are being violated—by…by…by whom? By the people who have the temerity not to provide these things for you.
Now, suppose you track one of these absent criminals down and catch him by the toe. “You’re violating my rights,” you say, “by not providing me with medical care.” The person looks at you and says “But I don’t want to provide you with medical care, I want to go to the movies tonight instead.” Now, you’re in a bit of a bind, aren’t you? Because Ryskamp has declared that “no individual shall be involuntarily deprived of liberty.” If you stop this fellow from going to the movies, you’re violating one of your principles. But if you let him go to the movies instead of forcing him to provide you with medical care, then you are again violating one of your principles. These alleged rights are not compossible. As Tom Palmer explains,
[C]onsider a product of this general approach to rights, the Universal Declaration of Human Rights adopted by the United Nations in 1948. According to Article 24,Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.And according to Article 25,
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control.Let us say that Bill needs medical care and necessary social services and Janet is a doctor. If Bill has the right to Janet’s services (Article 25), but Janet has the right to rest, leisure, reasonable working hours, and periodic holidays with pay (Article 25) and those conflict (as they surely do on occasions), whose rights will be realized?
Tom G. Palmer, Saving Rights Theory from Its Friends, in Individual Rights Reconsidered 33, 47 (T. Machan ed., 2001).
The answer is, whichever “society” decides is more important. If Bill is able to sway the powers that be—by persuading them that he is more virtuous, or by appealing to their mercy, or by bribing them, or however—then Janet will not get her vacation; if Janet can muster a greater popular vote, Bill will have to go without his surgery. The rights of the minority are (in Cass Sunstein’s words) “aspirations binding on conscience, not powers binding on officials,” Stephen Holmes & Cass Sunstein, The Cost of Rights: Why Liberty Depends on Taxes 17 (1999), so Bill and Janet must go before the political power—whether it be a democracy or a dictator—and plead their respective cases. Not exactly the way I envision a “right.”
Ryskamp goes on some tirade about how “Americans ADORE incarceration,” and then talks about emanations and penumbras and whatnot, but by then he’s already skipped any serious analysis.
(Normally I wouldn’t take time to attack such a silly paper, but Mr. Ryskamp asked me to post it and discuss it, so there you go.)
