We have previously noted that an essential step in what the Supreme Court passed off in its as a string of logical propositions was its assertion the the imposition in Article 83, Part II, of the Constitution of a "duty" upon the legislators and magistrates to cherish education necessarily implied the existence of corresponding "right" in every citizen to be educated. We have also discussed how this brand of logic was rather like that of Tweedledee in Alice in Wonderland: "Contrariwise, if it was so, it might be; and, if it were so, it would be; but as it isn't, it ain't. That's logic."

Even more important to the Court than its conversion of a duty into a right, however, was its characterization of the legal interests at stake as an affirmative duty and an affirmative right. The question of whether rights and duties are affirmative or negative may appear to involve nothing more than semantics, but I can assure you that it definitely has something to do with how constitutions are interpreted - and that it has everything to do with the Claremont decisions. In this regard, the Court speaks of the right "to an adequate education" rather than something like the right "to choose one's own education". In other words, the interests which the Court recognizes in its Claremont decisions do not consist of a right of parents to educate their children as they please and a duty of Government not to interfere with their educational choices, but a right of children to receive an education and a duty of Government to provide it.

Those who see affirmative rights in a constitution view the state as a dispenser of benefits, as a redistributor of wealth and as an agency of social engineering. On the other hand, those who see constitutional rights as negatives on the exercise of official power view the state as an arbiter of disputes, as a policeman, and as a social agency of last resort. The advocates of affirmative constitutional rights conceive of the state as an instrumentality, a pro-active organism which reaches out to do good, whereas those who focus upon the negative rights conceive of government as something which performs only those tasks which civil society cannot perform for itself, and, therefore, as a necessary evil which must always be kept at bay.

Even the language used by the two camps is different. The proponents of an activist state speak of rights "to" something such as the "right to fair housing", the "right to equal employment", and the "right to a decent wage". Those of the libertarian persuasion, however, tend to use the term "freedoms" rather than "rights" and more often talk of freedom "of" something, such as "freedom of speech", "freedom of religion", and "freedom of contract". Thus, the jargon of the advocates of the welfare state connotes a beneficent government ministering to our needs, whereas the terminology of the believers in the minimalist state conjures up visions of an officious government meddling in our private affairs.

Each of these two opposing schools of jurisprudence claims to find support for its world-view in our written constitutions. The statists envisage constitutions as "teleological" instruments (a phrase coined by scholar Michael Oakeshott) which means that they were supposedly crafted to achieve a certain telos or end. Members of this school of thought are people like Robert Bork, Alexander Bickel and Justice William O. Douglas. Although these strange bedfellows definitely disagree on what sort of society was contemplated by our constitution-makers, they share the notion of our American constitutions as "nomocratic" (Oakeshott's term again) instruments. By this it is meant that our constitutions were designed to bring government under the rule of law, rather than to achieve any grand social end. The adherents of this branch of constitutional historiography such as Forrest McDonald, Philip Kurland and Justice Oliver Wendell Holmes construe our early constitutions, especially the Federal Constitution, as essentially procedural documents which first define institutional domains of power and no-power, and then establish the rules for how those granted powers may be exercised. Suffice it to say that it is the teleological view of constitutions which leads to the creation of affirmative rights such as the Court created in its Claremont decisions.

But let us stop using the phrase "affirmative rights". They have a name which is much more familiar to us; we call them "entitlements". As the name indicates, the recipient of a social welfare program which is categorized as an entitlement is "entitled" to the benefits of that program. And once the beneficiary becomes entitled to his benefit, you had better believe that he isn't about to give it up. Moreover, if you try to take it away, he will sue you. In fact, he will probably sue you anyhow because most entitlements, like the right to an "adequate" education, are defined only in the eye of the beholder, so a beneficiary can always make a colorable claim that whatever you provided was not enough.

It is beyond cavil that the Framers of the Federal Constitution - and, I would claim, the Framers of our New Hampshire Constitution - came from the libertarian side of this debate. For example, John Adams - who was supposedly the draftsman of the Massachusetts predecessor of Article 83, Part I, of our Constitution - believed that, "So long as the Legislature is in session, no man's life, liberty or property is safe." Likewise, Thomas Jefferson - the author (along with John Adams) of those glorious phrases in the Declaration of Independence about "inalienable rights" made it eminently clear that it was not the state to which citizens should look for their "life, liberty [or] pursuit of happiness": Still on thing more, fellow citizens - a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government. . .

The Supreme Court obviously did not have its copies of the writings of Adams or Jefferson open when it wrote the Claremont decisions. Neither did the Court heed the lessons of history. Our experience with entitlements, whether created by judges out of whole cloth or whether created by well-intentioned legislatures, has been a disaster. The most notorious failure of affirmative rights has been affirmative action. To begin with, the benefits have been few. Affirmative action programs have not only created perverse incentives disruptive of the marketplace, but they have also generally failed in their primary goal of eradicating racial and sexual prejudices. And the transactional costs have been enormous. Besides generating a prodigious amount of litigation over what is "equal" (which simply transfers wealth from the productive classes to the lawyers), affirmative action has spawned a huge array of agencies whose job it is to determine eligibility for benefits, dole out those benefits and advocate for more benefits (which simply transfers wealth from the productive classes to the bureaucrats). As most (but certainly not all) of our society has learned, it is one thing to prohibit the Government from discriminating against people on the grounds of their race, creed or sex, but it is another thing entirely to say that Government has an affirmative obligation to make people equal.

Many of the same problems exist with respect to the various schemes which have been cooked up to grant supposedly disenfranchised individuals or groups a right to "equal access" to resources which are controlled by the Government or by Government franchisees. These include such things as the Federal Communication Commission rules which provide private persons with free access to the airways in order to respond to the editorial comments of those who own or control such media, the Federal Election Commission rules which give certain candidates for President and U.S. Senate access to public funds to finance their campaigns, and even the rules promulgated by various federal agencies which ration access to publicly owned land for purposes of livestock grazing, mineral extraction, timber harvesting and the like.

To the extent that we constitutionalize the interests recognized by these access laws, as the Court did with respect to access to education in the Claremont cases, we are in for a great deal of trouble. For one thing, inclusionary rules always create matching exclusionary rules and, whatever rules are devised, they are always touted as "fair" by those who are on the inside and challenged as "unfair" by those who are on the outside. For another thing, the recognition of something as an entitlement inevitably means the creation of vested interests in the status quo. At best, therefore, today's social welfare programs are cast in concrete; at worst, they constantly expand. No better example of these phenomena may be found in our society than the granddaddy of all entitlements, Social Security. just try to change the benefit structure of the social security system and I guarantee that you will hear more "rights talk" from the AARP than you will ever hear from a punk street criminal

At the risk of introducing a subject which tends to generate more heat than light, I suggest that the abortion debate provides a good illustration of the differences between viewing rights as freedoms versus characterizing them as entitlements. So long as the interests of women are cast in terms of "rights of choice", the issue usually centers upon whether or not a Government regulation unconstitutionally interferes with a woman's decision to have or not to have an abortion. If, however, the interests are framed as a woman's "right to an abortion", the debate shifts to such things as whether or not Government must require health insurance companies to provide coverage for abortions which is equivalent to coverage for other illnesses or whether or not Government itself has an obligation to fund abortions for those who cannot afford to purchase health insurance.

The constitutionalization of affirmative rights also introduces trump cards into the political process. The fact is that "rights" do trump other social policies. Take the right "a constitutionally adequate education". Assume that the Court finds that the Legislature has failed to provide it. Because our resources are not infinitely elastic, a constitutional requirement that more of these resources must be dedicated to education necessarily means that some other worthy social goal cannot be pursued or cannot be pursued with equal vigor. Likewise, assume that an environmental disaster makes an extraordinary call upon our financial resources or that an economic collapse destroys some element of our revenue base. Despite the fact the every other social program will have to be cut, the Legislature will not be allowed to reduce spending on education below the level of constitutional "adequacy".

This is the difference between an entitlement and a freedom. Although freedoms are rights too and although they also trump other social policies, freedoms are essentially defensive. They merely block Government form proceeding down a certain path; entitlements, however, call upon Government to build a new highway.

For example, when the Federal Constitution states in the First Amendment that, "Congress shall make no law . . . abridging the freedom of speech", a law which tends to restrict free speech is unconstitutional. If someone challenges the law and a court strikes it down, it usually doesn't cost anybody anything. No wealth is redistributed by the judiciary; no bureaucracy is ordered into existence; and, except for not being able to pass the same law again, the legislature is not restricted from pursuing its otherwise valid goals.

Do not pass this discussion of trump cards off as some parade of horrors which simply cannot happen in the real world. It is happening already! And it is in the field of education! Just take a look at what the federal handicapped education law is doing to the budgets of every New Hampshire school district. Since the Individuals with Disabilities Education Act, or IDEA, was passed in 1975, the proportion of school budgets consumed by the financing needs of the handicapped has increased exponentially. And, as we all know, there is nothing we can do about it short of changing the law. Indeed, what the Claremont decisions have done is expand the class of students which the IDEA states must receive a "free appropriate education" from students who are handicapped to all students. More importantly, the Claremont decisions have converted the requirement that the State provide an appropriate (read "adequate") education from a statutory obligation in to a constitutional one. And, since Claremont II has decreed that it is the State which has the responsibility of providing and funding this purported right to an adequate education, it will be the State budget which will now have an irreducible core that must be met, come hell or high water.

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