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Last Rites for Welfare Rights?

by David Kelley

This article appeared on cato.org on November 10, 1998.

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The United Nations' Declaration of Human Rights, which will be 50 years old on December 10, is a testament to the power of individual rights as a political idea.

Individual rights, embodied in the Declaration of Independence and the Constitution, have been an American ideal for 200 years and have been widely embraced in the rest of the world. The principle of rights has become an international standard of political legitimacy: even governments that routinely violate the rights of citizens find it necessary to cover up, make excuses or claim that their actions reflect a "higher" concept of rights.

In some respects, though, the U.N. declaration would have astonished the American Founding Fathers. They would certainly have recognized the first 21 articles, which proclaim civil and political rights of the type our own Constitution protects: life, liberty and property; due process and equal protection of the laws; freedom of speech, press and religion. The remaining articles, however, proclaim rights to food, shelter, education, medical care, retirement benefits, even holidays with pay. In effect, the U.N. was saying that people have rights to the services of an expansive welfare state.

In many industrialized countries economic growth has made those goods widely available and people have come to expect them. But an expectation is not a right. And "welfare rights" are radically different in kind from the classical rights enshrined in our Constitution.

The latter are rights to be free from interference by the state -- or anyone else -- in the pursuit of our goals, as long as we respect the equal rights of others. Thus my right to freedom of speech is the right to be free from censorship or punishment for speaking my mind. It does not guarantee that I will have anything important to say, or that anyone will listen or agree or that an editor will choose to publish my words.

Welfare rights, by contrast, are rights to goods, not to "mere" freedom of action. They are rights to be provided with certain goods, whether or not one is able to earn them. And that means someone else is obligated to provide them. When the U.N. declaration asserts that I have a right to medical care, for example, it does not merely mean that I should be free to contract with doctors, hospitals and insurers on terms that are acceptable to all parties. It means that my medical care should be paid for by the state, which means that taxpayers are obliged to support me, and health care providers are obliged to go along with the arrangement. Five years ago the Clintons wanted to impose controls on the entire health care industry -- in effect to nationalize the industry -- in the name of a "right" to health care.

The concept of welfare rights reflects a much more expansive conception of the role of government than anything envisioned by the Founding Fathers.

The classical rights express the idea of self-ownership. They reflect the Enlightenment ideas that individuals are ends in themselves and that relationships among people should be voluntary. Welfare rights, by contrast, express the idea that clients of the welfare state own the people who produce the wealth on which welfare clients depend.

That is not an expression of benevolence. By its very nature, a right is not a gift or favor for which gratitude is required. It is an entitlement, an enforceable claim to something someone else owns. But people in a free and civilized society do not own each other.

The concept of welfare rights reflects a much more expansive conception of the role of government than anything envisioned by the Founding Fathers. "For Jefferson," observes legal scholar Louis Henkin, "the poor had no right to be free from want. The framers saw the purposes of government as being to police and safeguard, not to feed and clothe and house." To this day the Supreme Court has not recognized a constitutional right to welfare goods.

Two years ago Congress took a step in the right direction by ending the federal entitlement to welfare. Across the country welfare caseloads are falling, with no increase in the poverty rate, as former recipients of government aid find work. In D.C. the drop in caseloads has been 17.2%. But programs for the poor are a small part of the welfare state. The biggest programs by far are Medicare and Social Security, which saddle workers with onerous payroll taxes to support the elderly and which are, even so, headed for bankruptcy. The sooner those programs are replaced by private, voluntary health insurance and retirement plans, the sooner we will have something approximating the Founders' vision of individual rights.

Meanwhile, we should hold our applause for the U.N. declaration's anniversary. Behind the bland continuity with which it speaks of rights, it was an effort to sell statism in the name of freedom.