"I-Iolmes and Sunstein reestablish the vital link between the protccLioll 01'liberty and strong democratie government even as they underscorc the

essentia]]y public charaeter of priva te rights."

-Benjamin R. Barber, Rutgers University,

author of Jihad vs. McWorld

"Intriguing ... will infuriate both liberaIs and conservatives. . I-Iolmes and

Sunstein look at the rights debate with a new clarity and pragmatism."

-Financial Times

"A tota]]y different and important look at our basie rights."

-Senator Paul Simon

S T E l' H E 1'1 H () L M E S te aches politicalscience at Princeton U níversity and N ewYork U niversity Law SchooL

C A S sR. S UNS T E I 1'1 te aches law andpolitical science at the U niversity ofChicago ..

ISBN 0-393-32033-2II 1I

9 780393 320336$15.95 USA $:

~~ W. W. NORTONL""",,J NEW YORK· LONDON

STEPHEN HOLMES

CASS R. SUNSTEIN

The Cost of

I ts

1thors] bring a refreshing clarity to

nnial contests between conservatives

rals .... A bracing, head -clearing

"-Economist

Praise for The Cost O/ Rights

"With an argument elegant in its simplicity, the authors haveprofoundly changed the debate over rights .... This book helpsestablish a far more credible and realistic approach to dealingwith some of the most vexing matters in the body politic."

-Thomas Byrne Edsall, author of Chain Reaction:The Impact o/ Race, Rights, and Taxes on American Politics

"Holmes and Sunstein offer a powerful challenge of liberal andconservative shibboleths about the distinction between negativeand positive liberty. This subtle and wide-ranging book castsnew light on the debate about the appropriate boundaries ofthe regulatory state."

-Jeffrey Rose, legal affairs editor, The New Republic

"A brilliant and refreshing look into the conditions necessary forthe protection of rights, The Cost o/ Rights is essential to under-standing how individual liberty depends fundamentally onsocial cooperation and government action."

-George Soros, chairman and founder of the Open SocietyInstitute and author ofThe Crises o/Global Capitalism

"A compelling analysis of the intellectual failures of libertari-anism and a much-needed appeal for a better kind ofliberalism."

-Btuce Ackerman, Sterling Professor ofLawand Political Science, Yale University

"[The authors} take on a slew of American prejudices and, bydemolishing them, demonstrate the considerable resources ofthe sort of middle of the road liberalism that has recently beenthought to be either dead or on the defensive .... The greatvirtue ofThe Cost of Rights is a highly developed common sense."

-Alan Ryan, Oxford University

"The Cost of Rights will be an eye-opener for many. When youread Holmes and Sunstein's book, you will be stunned, sur-prised, and convinced, and will see many familiar facts in a newlight. Crisp, crystal clear, and studded with vivid examples, TheCost ofRights is that rare book, an 'instant classic.'"

-Jon EIster, Columbia University

THE COST OF RIGHTS

THE COSTOF RIGHTS

Passions and ConstraintAnatomy 01Antiliberalism

Benjamin Constant and the Making 01Modern Liberalism

FreeMarkets and SocialJusticeLegal Reasoning and Political Conllict

The Partial ConstitutionAfter the Rights Revolution

Democracyand the Problem 01Free SpeechOneCaseat a Time:Judicial Minimalism on the SupremeCourt

W. W. Norron & CompanyNew York· London

01'To GEOFFREY STONECONTENTS

3L13, .\1"1

AIl rights reservedPrinted in the United States of AmerieaFirst published as a Norton paperbaek 2000

For info:mation about permission to reproduee seleetions ftom this book, writeto PermlsslOns, W. W. Norron & Company, Jne., 500 Fifth Avenue New YorkNY 10110. ' ,

INTRODUCTION:

COMMON SENSE ABOUT RIGHTS

The text of this book is eomposed in Garamond No. 3with the display set in FenieeDesktop composition by Chelsea DippelManufaeruring by Quebecot Printing, Fairfield, Ine.Book design by BTD

PART I:

WHY A PENNILESS STATE CANNOT PROTECT RIGHTS

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATAHolmes, Stephen, 1948-The eost of rights : why liberry depends on taxes / Stephen Holmes andCass R. Sunstein.p. em.Includes bibliographieal referenees and index.ISBN 0-393-04670-21. Civil rights-United States-Costs. 2. Finanee, Publie-United States.3. Government spending poliey-United States. 1. Sunstein Cass R. n. T'tl]C599.U5 H55 1999 ,1 e.323'0973-de21

Chapter One: All Rights Are Positive 35

Chapter Two: The Necessity of Government Performance 49

Chapter Three: No Property withour Taxation 59

Chapter Four: Watchdogs Must Be Paid 77

PART 11:WHY RIGHTS CANNOT BE ABSOLUTES

98-41491CIP

Chapter Five: How Scarcity Affects Liberty

Chapter Six: How Rights Differ from Interests

Chapter Seven: Enforcing Rights Means

Distributing Resources

Chapter Eight: Why Tradeoffs Are Inescapable113118W. W. Norron & Company, Ine., 500 Fifth Avenue, New York, N.Y. 10110

www.wwnorron.eom

PART III:

WHY RIGHTS ENTAIL RESPONSIBILITIES

ACKNOWLEDGMENTS

Chapter Ten: The UnselfishnessofRights 152Chapter Eleven:Rights as a Response to Moral Breakdown 162

PART IV:UNDERSTANDING RIGHTS AS BARGAINS

Chapter Twelve:How Religious Liberty Promotes StabilityChapter Thirteen: Rightsholders as StakeholdersChapter Fourteen: Welfare Rights and the Politics

of Inclusion

175189

IT rs A KEEN PLEASURE to thank the many friends and colleagueswho helped us with this book. We first stumbled across the costof rights, as a subject for inquiry and analysis, in discussions atthe Center on Constitutionalism in Eastern Europe at the Uni-versity of Chicago. A healthy respect for the fiscal precondi-tions of effective rights enforcement arose naturally fromobserving the underprotection of basic liberties in the insolventstates of Eastern Europe and the former Soviet Union. Russia'sgreat experiment with the jury trial, to choose a typical example,went awry when it began to consume 25 percent of already inad-equate local court budgets. One of our principal goals here hasbeen to apply what we learned in this eye-opening context to thedebate about rights underway in the United States. We thankDwight Semler, the coordinator of the Center, and our co-direc-tors, Jon Elster, Larry Lessig, and Wiktor Osiatynski, as well asAndras Sajo, for many challenging discussions. We are alsograteful for searching criticisms and wily suggestions on themanuscript fram Elster, Bruce Ackerman, Samuel Beer, MartinKrygier, Martha Nussbaum, Richard Posner, and Bernard Yack.Sophie Clark, Keith Sharfman, Matthew Utterbeck, and Chris-tian Lucky provided invaluable research assistance. Appreciationalso goes to our editor, Alane Salierno Mason, for her incisivecomments and steady encouragement.

CONCLUSION:

THE PUBLlC CHARACTER OF PRIVATE FREEDOMS 220

ApPENDIX:

SOME NUMBERS ON RIGHTS AND THEIR COSTS

Introduction:COMMON SENSE ABOUT RIGHTS

ON AUGUST26, 1995, a fire broke out in Westhampton, on thewesternmost edge of the celebrated Long lsland Hamptons, oneof the most beautiful areas in the United States. This fire was theworst experienced by New York in the past half-century. Forthirty-six hours it raged uncontrollably, at one point measuringsix miles by twe1ve.

But this story has a happy ending. ln a remarkably shorttime, local, state, and federal forces moved in to quell the blaze.Officials and employees from alllevels of government descend-ed upon the scene. More than fifteen hundred local volunteerfirefighters joined with military and civilian teams from acrossthe state and country. Eventually, the fire was brought under con-trol. Astonishingly, no one was killed. EqualIy remarkably,destruction of property was minima1. Volunteerism helped, butin the end, public resources made this rescue possible. Ultimatecosts to American taxpayers, local and national, originalIy esti-mated at $1.1 million, may have been as high as $2.9 million.

Opposition to government has been a defining theme ofAmerican populism in the late twentieth century. lts slogan is,Don't tread on me! Or as Ronald Reagan put it, "Governmentisn't the solution; it's the problem." More recently, critics of alIthings governmental, such as Charles Murray and David Boaz,have c1aimedthat an "adult making an honest living and mind-

ing his own business deserves to be left alone," and that the "realproblem in the United States is the same one being recognizedalI over the world: toa much government."l

Yet in Westhampton, on the spur of the moment, public of6-cials were able to organize and direct a costly and collectiveeffort to defend private property, drawing liberally on publicresources contributed by the citizenry at large, for the emer-gency rescue of real estate owned by a relatively smalI number ofwealthy families.

There is nothing exceptional about this story. ln 1996,American taxpayers devoted at least $11.6 bilIion to protectingprivate property by means of disaster relief and disaster insur-ance.2 Every day, every hour, private catastrophes are averted ormitigated by public expenditures that are sometimes large, evenmassive, but that often go unrecognized. Americans simplyassume that our public of6cials-national, state, and 10cal-wilIroutinely lay hold of public resources and expend them to sal-vage, or boost the value of, private rights. Despite the undesir-ably high incidence of crime in the United States, for instance,a majority of citizens feel relatively secure most of the time, ingood measure due to the efforts of the police, publicly salariedprotectors of one of our most basic liberties: personal or physi-cal security.3

Public support for the kind of "safety net" that benefitedthe home owners ofWesthampton is broad and deep, bur at thesame time, Americans seem easily to forget that individualrights and freedoms depend fundamentalIy on vigorous stateaction. Withour effectivegovernment, American citizens wouldnot be able to enjoy their private property in the way they do.lndeed, they would enjoy few or none of their constitutionalIy

guaranteed individual rights. Personalliberty, as Americansvalue and experience it, presupposes social cooperation managedby government officials. The private realm we rightly prize issustained, indeed created, by public action. N ot even the mostself-reliant citizen is asked to look after his or her material wel-fare autonomously, withour any support fram felIow citizens or

public officials.The story of the Westhampton fire is the story of property

ownership acrass America and, in truth, throughout the world.lndeed, it is the story of alI liberal rights. When structured con-stitutionally and made (relatively speaking) democraticallyresponsive, government is an indispensable device for mobiliz-ing and channeling effectively the diffuse resources of the com-munity, bringing them to bear on problems, in pinpointoperations, whenever these unexpectedly flare up.

The Declaration of lndependence states that "to secure theserights, Governments are established among men." To the obvi-ous truth that rights depend on government must be added alogical corollary, one rich with implications: rights cost money.Rights cannot be protected or enforced without public fundingand support. This is just as true of old rights as of new rights,of the rights of Americans before as welI as after Franklin DelanoRoosevelt's New Deal. Both the right to welfare and the right toprivate property have public costs. The right to freedom of con-tract has public costs no less than the right to health care, theright to freedom of speech no less than the right to decent hous-ing. All rights make claims upon the public treasury.

The "cost of rights" is a richly ambiguous phrase because bothwords have multiple and inevitably controversial meanings. Tokeep the analysis as focused and, along this dimension, as uncon-

tant and worthy. It neither affirms nor denies ethical skepti-cism and moral relativism. Instead ir is an empirical inquiry intothe kinds of interests that a particular politically organized soci-ety actually protects. Within this framework, an interest quali-fies as a right when an effective legal system treats it as such byusing collective resources to defend it. As a capacity createdand maintained by the state to restrain or redress harm, a rightin the legal sense is, by definition, a "child of the law."

Rights in the legal sense have "teeth." They are thereforeanything but harmless or innocent. Under American law, rightsare powers granted by the political community. And like thewie1der of any other power, an individual who exercises his orher rights may be tempted to use them badly. The right of oneindividual to sue another is the c1assic example. Because a rightimplies a power that can be wie1ded, for good or ill, over oth-ers, it must be guarded against and restricted, even while beingscrupulously protected. Freedom of speech itself must betrimmed when its misuse (such as shouting "Fite!" in a crowd-ed theater) endangers public safety. A rights-based politicalregime would dissolve into mutually destructive and se1f-defeat-ing chaos without well-designed and carefully uphe1d protec-

tions against the misuse of basic rights.When they are not backed by legal force, by contrast, moral

rights are toothless by definition. Unenforced moral rights areaspirations binding on conscience, not powers binding on offi-cials. They impose moral duties on alI mankind, not legal oblig-ations on the inhabitants of a territorially bounded nation-state.Because legally unrecognized moral rights are untainted bypower, they can be advocated freely without much worry aboutmalicious misuse, perverse incentives, and unintended side

tentious as possible, "costs" will be understood here to meanbudgetary costsand "rights" will be defined as important interests thatcan be reliably protected by individuaIs or groups using the instrumen-talities o/ government. Both definitions require elaboration.

The term "rights" has many referents and shades of meaning.There are, broadly speaking, two distinct ways to approach thesubject: moral and descriptive. The first associates rights withmoral principIes or ideaIs. It identifies rights not by consultingstatutes and case law, but by asking what human beings aremorally entitled to. While no single agreed-upon theory of suchmoral rights exists, some of the most interesting philosophicalwork on rights involves an ethical inquiry, evaluative in nature,of this general kind. Moral philosophy conceives of nonlegalrights as moral claims of the strongest sort, enjoyed perhaps byvirtue of one's status or capacity as a moral agent, not as a resultof one's membership in, or legal relationship to, a particularpolitical society. The moral account of rights tries to identifythose human interests that may not, before the tribunal of con-science, ever be neglected or intruded upon without special jus-tification.

A second approach to rights-with roots in the writings ofthe British philosopher Jeremy Bentham, American SupremeCourt Justice Oliver Wendell Holmes, Jr., and legal philoso-phers Hans Kelsen and H. L. A. Hart-is more descriptive andless evaluative. It is more interested in explaining how legalsystems actually function and less oriented toward justification.It is not a moral account.4 It takes no stand on which humaninterests are, from a philosophical perspective, the most impor-

effects. Rights under law invariably raise such misgivings andconcerns.

For most purposes, moral and positive accounts of rightsneed not be at odds. Advocates of moral rights and describersoflegal rights simply have different agendas. The moral theoristmight reasonably say that, in the abstract, there is no "right topollute." But the positivist knows that, in American jurisdic-tions, an upstream landowner can acquire a right to pollute ariver from a downstream landowner. The points are not Contra-dictory, but simply pass each other in the night. Those who offermoral accounts and those who offer positive accounts are askingand answering different questions. 50 students of collectivelyenforceable rights have no quarrel with those who offer moralarguments on behalf of one or another right or understandingof rights. Legal reformers should obviously strive to align polit-icalIy enforceable rights with what seems to them to be moralIyright. And those charged with enforcing legal rights would dowell to convince the public that these rights are morally wellfounded.

But the cost of rights is in the first instance a descriptive, nota moral, theme. Moral rights have budgetary costs only if theirprecise nature and scope are politically stipulated and inter-preted-that is, only if they are recognizable under law. True,the cost of rights can be moralIy relevant, for a theory of rightsthat never descends from the heights of morality into the worldof scarce resources wilI be sorely incomplete, even from a moralperspective. 5ince "ought implies can," and lack of resourcesimplies cannot, moral theorists should probably pay more atten-tion than they usually do to taxing and spending. And theycannot fulIy explore the moral dimensions of rights protection if

they fail to consider the question of distributive justice. AfteralI, colIectively provided resources are often, for no good rea-son, channeled to secure the rights ofsome citizens rather thanthe rights of others.

Rights are ordinarily enforced in functioning and adequate-ly funded courts of law. Not included among the rights dis-cussed in this book, therefore, are rights such as those of womenraped in war zones of Bosnia or Rwanda. Existing politicalauthorities have in effect turned their backs on the sickeninglybrutal wrongs perpetrated under such conditions, claiming thatsuch crimes do not falI under their jurisdictions. Preciselybecause remedial authorities universalIy shrug them off, suchmiserably neglected "rights" have no direct budgetary costs. In

the absence of a polítical authority that is willing and able tointervene, rights remain a holIow promise and, at present, placeno burdens on any public treasury.

Not even the ostensibly legal rights guaranteed under inter-national human rights declarations and covenants will be dis-cussed here unless subscribing national states-capable of taxingand spending-reliably support international tribunaIs, such asthose in Strasbourg or the Hague, where genuine redress can besought when such rights are violated. In practice, rights becomemore than mere declarations only if they confer power on bod-ies whose decisions are legally binding (as the moral rightsannounced in the United Nations Declaration ofHuman Rightsof 1948, for example, do nor). As a general mIe, unfortunateindividuaIs who do not live under a government capable of tax-ing and delivering an effective remedy5 have no legal rights.Statelessness spells rightslessness. A legal right exists, in reali-ty, only when and if it has budgetary costs.

Because this book focuses exclusively on rights that areenforceable by politically organized communities, it pays noattention to many moral claims of great importance to the lib-eral tradition. This regrettable loss of scope can be justified byan enhanced clarity of foeus. Even if legally unenforceable rightsare put to one side, enough difficult problems remain to oceu-py our attention.

Philosophers also distinguish between liberty and the valueof liberty. Liberty has little value if those who ostensibly pos-sess it lack the resources to make their rights effective. Free-dom to hire a lawyer means little if alllawyers charge fees, ifthe state will not help, and if you have no money. The right toprivate property, an important part of liberty, means little ifyou lack the resources to protect what you own and the policeare unavailable. Only liberties that are valuable in practice lendlegitimacy to a liberal political order. This book does not foeusexclusively on the budgetary costs of rights that are enforceablein courts of law, therefore, but also on the budgetary costs ofmaking those rights exercisable or useful in daily life. The pub-lic costs of police and fire departments contribute essentially tothe "protective perimeter" that makes it possible to enjoy andexercise our basic constitutional and other rights.6

property, are generally funded by taxes, not by feesJ This all-important funding formula signals that, under American law,individual rights are public not private goods.

Admittedly, the quality and extent of rights protectiondepends on private expenditures as well as on public outlays.Because rights impose costs on private parties as well as on thepublic budget, they are necessarily worth more to some peoplethan to others. The right to choose one's own defense lawyer iscertainly worth more to a wealthy individual than to a poorone. Freedom of the press is more valuable to someone who canafford to purchase dozens of news organizations than to someonewho sleeps under one newspaper at a time. Those who can affordto litigate obtain more value from their rights than those whocannot.

But the dependency of rights protection on private resourcesis well understood and has traditionally attracted greater atten-tion than the dependency of rights protection onpublic resources.Lawyers who work for the American Civil Liberties Union(ACLU) voluntarily accept a cut in personal income in order todefend what they see as fundamental rights. That is a privatecost. But the ACLU is also a tax-exempt organization, whichmeans that its activities are partly financed by the public.8 Andthis, as we shall see, is only the most trivial way in which rightsprotection is funded by the ordinary taxpayer.

Rights have social costs as well as budgetary costs. Forinstance, the harms to private individuaIs that are sometimesinflicted by criminal suspects released on their own recognizancecan reasonably be classed among the social costs of a systemthat takes serious measures to protect the rights of the accused.A comprehensive study of the costs of rights, therefore, would

American law draws an important distinction between a "tax"and a "fee." Taxes are levied on the community as a whole,regardless of who captures the benefits of the public servicesfunded thereby. Fees, by cOntrast, are charged to specific bene-ficiaries in proportion to the servicesthey personally receive.Theindividual rights of Americans, including the right to private

necessarily devote considerable attention to such nonmonetarycosts. But the budgetary costs of rights, treated in isolation framboth socialcosts and private costs, provides an ample and impor-tant domain for exploration and analysis. Focusing exclusivelyon the budget is also the simplest way to draw attention to thefundamental dependence of individual freedoms on collectivecontributions managed by public officials.

Unlike social costs, "net costs" (and benefits) cannot be tem-porarily put to one side. Some rights, although costly up frant,increase taxable socialwealth to such an extent that they can rea-sonabIy be considered self-financing. The right to private prap-erty is an obvious example. The right to education is another.Even protecting women fram domestic violence may be viewedin this way, if it helps bring once-battered wives back into theproductive workforce. Public investment in the protection ofsuch rights helps swell the tax base upon which active rightsprotection, in other areas as well, depends. Obviously enough,the value of a right cannot be assessed by looking solely at itspositive contribution to the gross national product (GNP).(While the right ofprisoners to minimal medical care is not selE-financing, it is no less obligatory than freedom of contract.) Butthe long-term budgetary impact of expenditures on rights can-not be left out of the picture.

Rights, it should also be noted, may impose a burden on thepublic fisc beyond their direct costs.A foreign example will helpdrive this point home. Freedom of movement was created inSouth Africa by the abolition of the notorious pass laws. Burthe public costs ofbuilding urban infrastrucrure-water supply,sewage systems, schools, hospitaIs, and so forth-for the mil-lions who, using their newly won freedom of movement, have

flooded fram the countryside into cities, is proving astronomi-cally high. (Since the abolition of South Africa's pass laws wasone of the most indispurably just acts of recent times, it shouldnot be necessary to prevaricate about its indirect financial costsin order to defend it.) On a more modest scale, here at home, theThird Amendment freedom fram having troops quartered inprivate homes requires that taxpayers fund the construction andmaintenance of military barracks. Similarly, a system thatscrupulously pratects the rights of criminal suspects will makeit more costly to apprehend criminaIs and prevent crimes. And

so on.Such indirect costs or compensatory expendirures, because

they directly involve budgetary outlays, fall within the "costsof rights" as narrowly defined in this book. They are especiallyimportant because, in some cases, they have led to the curtail-ment of the rights of Americans. For example, Congress hasinstructed the secretary of transportation to withhold fundingfrom those states that have not yet abolished the right to ride amotorcycle without a helmet. This decision was based in part ona srudy made at Congress's request of medical costs associatedwith motorcycle accidents, including the extent to which pri-vate accident insurance fails to cover aetual costs. If concern forindirect public costs plays such an important role in the leg-islative restriction of what some consider our freedoms, the the-ory of rights obviously cannot leave such costs out.

Finally, this is a book about the nature of legal rights, not adetailed study of public finance. It asks what we can learn aboutrights by reflecting on their budgetary costs. The rough dollaramounts cited here are therefore meant to be illustrative only.They are certainly not the praduct of an exhaustive and precise

inquiry into the budgetary costs of various rights. To calculateaccurately the costs of protecting any given right is immenselycomplicated, for bookkeeping reasons alone. ln 1992, judicialand legal services in the United States cost the taxpayer rough-ly $21 billion.9 But joint costs and multi-use facilities make itdifficult to specify what portion of this $21 billion was spenton the protection of rights. Similarly, police training presumablyimproves the humane treatment of suspects and detainees. Butwhile it helps protect their rights, training is primarily intend-ed to increase the capacity of police officers to apprehend crimi-naIs and prevent crimes, and in that way to protect the rightsof law-abiding citizens. So how could we possibly calculate theexact percentage of the police training budget that is earmarkedfor the protection of the rights of suspects and detainees?

Empirical research along these lines is certainly desirable.But before such research can be sensibly undertaken, certainconceptual foundations must be laid. To lay such foundations isone of the principal purposes of this book. Once the costs ofrights becomes an accepted topic of research, students of publicfinance will have ample incentive to provide a more precise andthorough account of the dollar amounts devoted to the protec-tion of our basic liberties.

way recent conservative majorities on the Supreme COutt havelimited various rights first granted during the tenure of ChiefJustice Earl Warren, liberaIs may hesitate to throw a spotlighton the public burdens attached to civil liberties. Conservatives,for their part, may prefer to keep quiet about-or, as theirrhetoric suggests, may be oblivious to-the way that the taxes ofthe whole community are used to protect the property rights ofwealthy individuaIs. The widespread desire to portray rights inan unqualifiedly positive light may help explain why a cost-blind approach to the subject has proved congenial to all sides.lndeed, we might even speak here of a cultural taboo-ground-ed in perhaps realistic worries-against the "costing out" ofrights enforcement.

The widespread but obviously mistaken premise that ourmost fundamental rights are essentially costless cannot be plau-sibly traced to a failure to detect hidden costs. For one thing, thecosts in question are not so terribly hidden. lt is self-evident,for instance, that the right to a jury trial entails public costs. A1989 study provides a dollar amount: the average jury trial inthe United States costs the taxpayer roughly $13 thousand.lO

Just as plainly, the right to reasonable compensation for prop-erty confiscated under the power of eminent domain has sub-stantial budgetary costs. And the right of appeal in criminalcases clearly assumes that appellate tribunaIs are publicly fund-ed. And that is not all.

American taxpayers have a serious financial interest in dam-age suits against local governments involving hundreds of mil-lioos of dollars every year in monetary claims. ln 1987 alone,New York City paid out $120 million in tort expenses; in 1996,this figure had risen to $282 million.ll Understandably, every

Although the costliness of rights should be a truism, it soundsinstead like a paradox, an offense to polite manners, or perhapseven a threat to the preservation of rights. To ascertain that aright has costs is to confessthat we have to give something up inorder to acquire or secure it. To ignore costs is to leave painfultradeoffs conveniently out of the picture. Disappointed by the

large city in the country is trying to implement tort liabilityreform, for the right of individuaIs to sue municipal govern-ments is placing an increasingly intolerable drain on local bud-gets. Why should judges, narrowly focused on the case beforethem, have the power to decide that taxpayers' money must bespent on tort remedies rather than, for instance, on schoolbooksor police or child nutrition programs?

legal professionals understand perfectly well the budgetaryimplications of the right to sue local governments for damages.They also know that taxpayer money can be saved by openly orsurreptitiously curtailing other sorts of rights. The taxpayer'sinterest in lower taxes can be accommodated, for instance, by de-funding defense services for the poor.12

Public savings can be achieved just as effectively by tighten-ing standing requirements for civil actions (by curtailing classi-cal rights), as by tightening eligibility requirements for foodstamps (by curtailing welfare rights). When judges hold pretrialconferences to encourage out-of-court settlements in order toreduce delay and congestion in court, they implicitly acknowl-edge that time is money-more specifically, that court time istaxpayers' money. Under the due process clause, governmentagencies must provide some sort of hearing in connection withtaking away a person's liberty or property (including driver'slicenses and welfare benefits), but courts routinely take bud-getary expenses into account when deciding how elaborate ahearing to hold. ln 1976, discussing the procedural safeguardsrequired by a due process guarantee, the Supreme Court said that

tor that must be weighed. At some point the benefit of anadditional safeguard to the individual affected by theadministrative action and to society, in terms of increasedassurance that the action is just, may be outweighed by thecost. Significantly, the cost of protecting those whom thepreliminary administrative process has identified as likely tobe found undeserving may in the end come out of the pock-ets of the deserving since resources available for any particu-

r . d 13lar program of socialwelfare are not un Imite .

Statements of this sort, which have become central to the. d I"particular legal question of "how much process IS ue. may

seem like common sense, but their implications have not yet

been fully spelled out or thought through.ln interpreting statutes and precedents, and in deciding who

may sue whom, courts of appeal as a matter of course takeaccount of the risk of being overwhelmed by costly suits. Moregenerally, courts are given discretion over their own caseloadsbecause, among other things, public expenditures earmarked forthe system of justice are limited. Rules such as the EleventhAmendment (which bans suits against states for money damagesin federal court) suggest that American public officials havealways understood the costs to the taxpayer of unrestricted indi-vidual rights to sue the government. Today, the nationwidemove toward no-fault auto insurance, which restricts the rightsof individuaIs to sue other individuaIs for personal injury,reflects a growing concern over the exorbitant costs, includingpublic costs, of certain private rights. The rise of medical ~a~-practice tribunaIs has similar sources. Everyone knows that It ISvery expensive to make existing facilities readily accessible to

the Government's interest, and hence that of the public, inconserving scarcefiscal and administrative resourcesis a fac-

LIBERALS MAY BE SKEPTICAL INITIALLY about the very subject ofthis book. But why should cost consciousnessdiminish our com-mitment to the protection of basic rights? To ask what rightscost, first of all, is not to ask what they are worth. If we couldestablish to the last penny what it would cost to enforce, say,the right of equal accessto justice in a given budgetary year, wewould still not know how much we, as a nation, should spend onit. That is a question for political and moral evaluation, and itcannot be settled by accounting alone.

Such considerations are unlikely to assuage liberal appre-hensions, however, given the current and apparently bipartisancrusade to cut public expenditures. Fearing that short-sightedvoters may respond alI toa eagerly to "we cannot afford it" argu-ments put forward by conservatives, liberaIs may worry, reason-ably enough, that cost-benefit analysis will be misused bypowerful private interests. They may fear that inevitable disclo-sures of waste, inefficiencies, and cost overruns-while good inprinciple-will eventually lead to a further slashing of bud-getary allocations for the protection of even our most preciousrights. This fear is not wholly unjustifiable. But its appropri-ateness depends a good deal on what cost-benefit analysis actu-ally entails.

Conservative anxieties are equally acute, but assume a dif-

ferent hue. Many conservatives cling instinctively to a cost-blindapproach to the protection of the so-called negative rights ofproperty and contract, because staring hard at costs would shat-ter the libertarian fiction that individuaIs who exercise theirrights, in the classic or eighteenth-century sense, are just goingabout their own business, immaculately independent of the gov-ernment and the taxpaying community. The public costs of non-welfare rights show, among other things, that "private wealth,"as we know it, exists only because of governmental institutions.Those who attack all welfare programs on principIe should beencouraged to contemplate the obvious-namely, that the defi-nition, assignment, interpretation, and protection of propertyrights is a government service that is delivered to those who cur-rently own property, while being funded out of general rev-

enues extracted from the public at large.So neither liberaIs nor conservatives, at the outset, are likely

to welcome an inquiry into the costs of rights. And a thirdobstacle to such a study stems from the distinctive sensibility,and perhaps the vested interests, of the legal profession itself.The judiciary prides itself on being insulated fram the politicalprocess, following the dictates of reason rather than expediencyand commonly deferring to the legislature and executive in fis-cal matters. But in practice, judges defer much less in fiscal mat-ters than they appear to, simply because the rights that judges

help protect have costs.That rights are financed by the extractive efforts of the other

branches does not mesh smoothly with judicial self-images. Theproblem is serious. Are judges, though nominally independent,actually dangling on purse strings? Does justice itself hinge onriders attached to spending bills? And how can a judge, given

people with disabilities as mandated by the Americans with Dis-abilities Act of 1990. But should it not be just as obvious thattaxpayers (who else?) must foot the bill when judges hold thatcompensation is to be paid for a taking of private property orinterpret overcrowding in prison as a violation of the EighthAmendment prohibition on cruel and unusual punishment?

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the meager information at his or her disposal (for informationtoo has costs) and his or her immunity to electoral accountabil-ity, reasonably and responsibly decide about an optimal alloca-tion of scarce public resources? A judge may compel a street toremain open for expressive activity or a prison to improve liv-ing conditions for prisoners, but can that judge be sure that themoney he or she commandeers for such ends would not havebeen used more effectively by inoculating ghetto childrenagainst diphtheria?

This dilemma does not affect judges alone. Take civilliber-ties litigators: because they conceive of rights as weapons withwhich to confront and attack government, they may be uncom-fortable with an inquiry into the budgetary cost of rights thatfocuses attention on a very simple and concrete way in whichrights are "creatures" of government. Generally speaking, thecostliness of rights protection explodes a powerful illusion aboutthe relationship between law and politics. If rights depend inpractice on the going rate of taxation, then does not the rule oflaw hinge upon the vagaries of political choice? And is it notdemeaning to understand rights, which after all protect humandignity, as grants awarded by the public power (even if thepower in question is democratically accountable)? As guardiansof priceless values, must not judges, especially, rise above thedaily compromises of power-wielders and power-seekers?

Whatever the merits of the "should" in this case, ir has littlerelevance to what "is." To imagine that American law is or canbe untouched by the tradeoffs familiar to public finance can onlyblind us to the political realities of rights protection. For thecost of rights implies, painfully but realistically, that the politi-cal branches, which extract and re-allocate public resources, sub-

stantially affect the value, scope, and predictability of our rights.If the government does not invest considerable resources toensure against police abuse, rhere will be a great deal of policeabuse, whatever the law on the books may say. The amount thecommunity chooses to expend decisively affects the extent towhich the fundamental rights of Americans are protected and

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ATTENTIONTOTHECOSTOFRIGHTSraises a flurry of additionalquestions, not just about how much various rights actually cost,but aIso about who decides how to allocate our scarce publicresources for the protection of which rights, and for whom.What principIes are commonly invoked to guide these alloca-tioos? And can those principIes be defended?

Finally, the simple insight that rights have costs points theway toward an appreciation of the inevitability of governmentand of the various good things that government does, many ofwhich are taken so much for granted that, to the casual observer,they do not appear to involve government at all. Attention tothe public costs of individual rights can shed new light upon oldquestions such as the appropriate dimensions of the regulatory-welfare state and the relationship between modern governmentand classicalliberal rights. Public policy decisions should not bemade on the basis of some imaginary hostility between freedomand the tax collector, for if these two were genuinely at odds,all of our basic liberties would be candidates for abolition.

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Chapter OneALL RIGHTS ARE POSITIVE

lN ROE V. WADE, the Supreme Court ruled that the D.S. Consti-tLltionprotects a woman's right to have an abortion.1 A few yearslater, complications arose: does the Constitution also mandatepublic funding of abortions? Does it require the government todefray the costs of nontherapeuric abortions if the government isalready subsidizing childbirths? In Maher v. Roe, the Court con-cluded that the Constitution does no such thing. 2 A denial ofMedicaid payments, it explained, "places no obstacles-absolureor otherwise-in the pregnant woman's path to an abortion."This is because "an indigent woman who desires an abortion suf-fers no disadvantage as a consequence of the state's decision tofund childbirth," for the government is in no way responsible forher penury. According to the Court, a state legislature's refusalto foot this particular bill, while it may effectively deny safeabortion to a penniless woman, in no way violates that woman's

"right" to choose.To reconcile its holding in Roe with that in Maher, the Court

drew a crueial distinction. It said that "there is a basic differencebetween direct state interference with a protected activity andstate encouragement of an alternative." Apparently, the Consti-tution can, with unimpeachable consistency, first prohibit thegovernment from intruding and afterward permit the govern-ment to withhold support. A woman is constitutionally protect-

ed from impermissible restrictions by state agencies, the Courtwent on to explain. But her freedom of choice does not carry withit "a constitutional entitlement to the financial resources to availherself of the full range of protected choices." Protection from aburden is one thing, entitlement to a benefit is another. Andindeed such a distinction between a liberty and a subsidy soundslike common sense. But is it supportable? On what grounds?

Behind the distinction adduced by the Court lies an unspokenpremise: immunity from invasion by the state involves no sig-nificant entitlement to financial resources. Theorists who sharethis assumption see constitutional rights as shields establishedsolely to protect vulnerable individuaIs from arbitrary imprison-ment, intrusions on contractual freedom, takings of property, andother forms of governmental abuse. Personal liberty can besecured, they typically argue, simply by limiting the govern-ment's interference with freedom of action and association. Indi-vidual freedom requires not governmental performance but onlygovernmental forbearance. Construed along these !ines, rightsresemble "walls against the state," embodying the assurance thatCongress "shall make no laws" restricting private liberty orimposing excessive burdens. By dividing government againstitself, the Constitution prevents public authorities from intrud-ing or abridging or infringing. The !imited government thatresults leavesplenty of room for private individuaIs to mind theirown business, to breathe and act freely in unregulated socialrealms. Such immunity from government meddling is even saidto be the essenceof constitutionalism. And while action is cost-ly, inaction is relatively cheap, or perhaps free. How could anyoneconfuse the right to noninterference by public authorities withmonetary claims upon the public treasury?

THE FUTILITY OF DICHOTOMY

The opposition between two fundamentally different sorts ofclaim-between "negative rights" such as those granted in Roealld "positive rights" such as those denied in Maher-is quitebmiliar.3 But it is anything but self-evident. It does not appearanywhere in the Constitution, for one thing. It was whollyunknown to the American framers. So how does it arise? It hasprofoundly shaped the legallandscape of the United States, butdoes ir provide a cogent classification of different kinds ofrights? Does it make sense?

Without some simplifying scheme, admittedly, the plethoraof rights entrenched in American law are hard to think aboutin an orderly fashion. U .S. cirizens successfully claim such acornucopia of rights, and these rights are so palpably diverse,that generalization about them sometimes seems beyond ourreach. How should we think systematically about rights so dis-parate as the right to strike and freedom of conscience, the rightto sue journalists for libel and the right to be free from unrea-sonable searches and seizures? And how should the right to votebe compared to the right to bequeath one's property, or the rightof self-defense to freedom of the press? What do these highlyvariegated claims have in common? And how can we classify orsubdivide, in a rational way, the rights protected and enforced inthe United States today?

Even a selective list of the everyday rights of ordinary Amer-icans will make our embarrassment of riches clear. It is not easyto arrange in useful categories such strikingly diverse claims asthe right to an abortion, the right to practice one's profession,the right to terminate an agreement, the right to be considered

for parole, consumer rights, parental rights, the right to sub-mit evidence before a review board, the right to testify in court,and the right against self-incrimination. Under what basicheadings should we classify the right to change one's name, theright of private security guards to make arrests, the exclusiveright to decide who publishes (copyright), stock-purchaserights, the right to recover money damages for defamation, ten-ants' and landlords' rights, the right to smoke the dried leavesof some (but not alI) plants, and the right to judicial review ofthe rulings of administrative agencies? Are there purposes forwhich it is helpful to sort into two basic groupings-say, thepositive and the negative-the right oflegislative initiative, theright not to be denied a job because of sexual preference, theright to rerurn to a job after taking unpaid maternity leave,the right to interstate traveI, freedom of testation, and the rightto inform authorities of a violation of the law? And what abouthunting and fishing rights, the right to keep and bear arms, alandowner's right to abate nuisances upon his land, mineralrights, the right to present testimony about the victim of acrime in order to influence the sentencing of a perpetrator, pen-sion rights, the right to give to charity tax-free, the right torecover a debt, the right to run for office, the right to use extra-judicial arbitration methods, and the right to view obscenemateriaIs at home? And how should we classifyvisitation rightsin prison, the right to dispose of one's property as one wishes,the right of an expelled high school student to a hearing, theright to marry and divorce, the right of first refusal, the rightto be reimbursed for overpayments, the right to the presenceand advice of an attorney before custodial interrogation by lawenforcement authorities, the right to emigrate, the right to

receive counseling about birth control, and the right to use con-

traceptives?This ramshackle inventory of only some of the everyday

rights of ordinary Americans suggests the magnitude of thechallenge facing anyone who wants to map the sprawling terrainof our individualliberties. Even if we set aside archaic-sound-ing anomalies, such as the "right of rebellion," we will have atough time organizing into two mutually exclusive and joindyexhaustive groups the swarm of claims and counterclaims thathelp structure the commonplace expectations and routine

behavior of U.S. citizens today.

THE LURE OF DICHOTOMY

True, grand efforts at simplification cannot be impeded. Forsome purposes, moreover, simplification can be useful; the ques-tion is whether the relevant simplification helps illuminate real-ity.4 Among recent attempts to impose an easily grasped orderon the multiplicity of basic rights invoked and enforced in thiscountry, the one to which the Supreme Court, for good or ill, haslent the weight of its authority has been far and away the mostinfluential. ln classrooms and on editorial pages, in judicialopinions and before congressional committees, a distinction isroutinely drawn between negative rights and positive rights, or(what is often perceived to be the same thing) between libertiesand subsidies. The distinction gains its initial plausibility, per-haps, because it seems to track the politically more familiarcontrast between small government and big government.

This dichotomy has taken deep root in common thoughtand expression. Those Americans who wish to be left alone prizetheir immunities from public interference, it is said, while those

who wish to be taken care of seek entitlements to public aid.Negative rights ban and exclude government; positive onesinvite and demand government. The former reguire the hob-bling of public officials, while the latter reguire their affirmativeintervention. Negative rights typically protect liberty; positiverights typically promote eguality. The former shield a privaterealm, whereas the latter reallocate tax dollars. The former areprivative or obstructionist, while the latter are charitable andcontriburory. If negative rights shelter us from the government,then positive rights grant us services by the government. Theformer rights include the rights of property and contract and,of course, freedom from being torrured by the police; the latterencompass rights to food stamps, subsidized housing, and min-imal welfare payments.

This storybook distinction between immunities and entitle-ments has become so influential, even authoritative, that theSupreme Court was able to assume its validity without seriousexamination or even argumento Neither its relative historicalnovelty nor its palpable inadequacy has weakened its hold onacademic analysis or the public imagination. But wherein lies itsseemingly irresistible appeal?

The attraction of this categorization stems partly from themoral warning or moral promise it is believed to convey. Con-servative devotees of the positive/negative rights distinction rou-tinely urge, for instance, that welfare rights are potentiallyinfantilizing and exercised on the basis of resources forked outfree of charge by the government. Classicalliberal rights, theyadd by way of contrast, are exercised auronomously, American-style, by hardy and self-sufficient individuaIs who spurn pater-nalism and government handours.

Critics of the regulatory-welfare state also interpret theimmunities/entitlements dichotomy in the light of a simplifiednarrative of historical betrayal or decline. Negative rights, theysay, were the first liberties to be established, having been wise-ly institutionalized at the Founding, if not earlier, whereas pos-itive rights were added afterward, in an ill-consideredtwentieth-century deviation from the original understanding.When the United States was first created, the protection andenforcement of basic rights was limited to guarantees againsttyrannical and corrupt government. Only much later-withthe New Deal, the Great Society, and the Warren Court-weresupererogatory entitlements to public assistance introduced.Instead of protecting us from government, this conservativestory continues, welfare rights make people dependent on gov-ernment, thus eroding "real freedom" in two different ways: byunfairly confiscating the private assets of the wealthy andimprudently weakening the self-sufficiency of the poor. By prof-ligately adding new positive rights to old negative ones, modernliberaIs such as Franklin Delano Roosevelt and Lyndon Johnsonnot only betrayed the Founders' conception of freedom, but alsosummoned into existence a whole flock of impoverished anddependent citizens who now, alas, must be elbowed off the gov-

ernment soup wagon.This narrative of decline is recounted with palpable earnest-

ness by political conservatives. American progressives couldnot disagree more. Nevertheless, they toa frequently assume thatthere are basically two kinds of rights, the positive and the neg-ative. They merely redescribe the shift from immunities to enti-tlements as a progressive tale of evolutionary improvement andmoral growth.5 While conservatives deplore the emergence of

taxpayer-subsidized welfare rights, progressives applaud therise of positive guarantees-interpreting this as a sign of politi-callearning and an improved understanding of the requirementsof justice. Charitable impulses have finally come to the fore andbeen codified into law. New Deal and Great Society Americabroke with the narrow principIes that served the interests ofproperty holders and big business to the detriment of the major-ity. Viewed with hindsight, negative rights were limited or per-haps even cruel. The eventual rise of positive rights registered anovel appreciation of the need to supplement non-interferencewith public provision.

One and the same distinction, in effect, obligingly serves twocontrary outlooks. While American liberaIs typically associaterights of property and contract with immoral egoism, Ameri-can conservatives link private liberties to moral autonomy. Pro-gressives trace entitlements to generous solidarity, whilelibertarian conservatives connect welfare handouts to sicklydependency. Opposite evaluations are attached, but the concep-tual skeleton is the same. A1though politically nonpartisan, thenegative/positive rights dichotomy is by no means politicallyinnocent, shaping as it does some of our most important debates.It provides the theoretical underpinnings for both attacks on anddefenses of the regulatory-welfare state. The negative/positivepolarity, we might even say,furnishes a common language with-in which we1fare-state liberaIs and libertarian conservatives canunderstand each other and trade abuse.

But who is correct? Are property rights instruments of se1f-ish egoism or sources of personal autonomy? Do welfare rights(incIuding those to medical care or employment training)express solidarity and fellow-feeling or erode initiative and

inculcate dependency? Should individuals be protected onlyÚom government or also by government? These questionsencapsulate much of the American rights debate today. Natu-rally, any dichotomy that appeals simultaneously to both theLeft and the Right is likely to be hard to criticize and immense-1 difficult to slough off. Taken-for-grantedness, however, doesy d .. 1not mean that the distinction is justifiable either escnptlve y ornormatively. Upon inspection, the contrast between two funda-mental sorts of rights is more elusive than we might haveexpected, and much less cIear and simple than our SupremeCourt has assumed. In fact, it turns out to be based on funda-mental confusions, both theoretical and empirical. But if thedistinction itself isflawed, then perhaps neither side of theAmerican rights debate is on solid ground.

THE COST OF REMEDIES

"Where there is a right, there is a remedy" is a cIassicallegalmaxim. Individuals enjoy rights, in a legal as opposed to a moralsense, only if the wrongs they suffer are fair1y and predictablyredressed by their government. This simple point goes a longway toward disclosing the inadequacy of the negative rights/pos-itive rights distinction. What it shows is that alllegallY enforcedrights are necessarily positive rights.

Rights are costly because remedies are costly. Enforcementis expensive, especially uniform and fair enforcement; and legalrights are hollow to the extent that they remain unenforced. F~r-mulated differently, almost every right implies a corre1atlveduty, and duties are taken seriously only when dere1.iction ispunished by the public power drawing on the pubhc purse.There are no legally enforceable rights in the absence of legally

en~orce~bleduties, which is why law can be permissive only bybemg slmultaneously obligatory. That is to say,personallibertycannot be secuted merely by limiting government interference~ith freedom of action and association. No right is simply anght to be left alone by public officials. All rights are claims toan aff~rmativegovernmental response. All rights, descriptivelyspeakmg, amount to entitlements defined and safeguarded bylaw. A cease-and-desist order handed down by a judge whoseinjunctions are regularly obeyed is a good example of govern-ment "intrusion" for the sake of individualliberty. But govern-ment is involved at an even more fundamental leveI whenlegislatures and courts define the rights that such judges protect.Every thou-shalt-not, to whomever it is addressed, implies bothan affirmative grant of right by the state and a legitimaterequest for assistance addressed to an agent of the state.

If rights were merely immunities from public interferencethe highest virtue of government (so far as the exercise of right:was concerned) would be paralysis or disability. But a disabledstate cannot protect personalliberties, even those that seem whol-ly "negative," such as the right against being tortured by policeo~~cers~~d prison guards. A state that cannot arrange promptVlSltSto JaI1sand prisons by taxpayer-salarieddoctors, prepared tosubmit credible evidence at trial, cannot effectively protect theincarcerated against tortures and beatings. All rights are costlybecauseall rights presuppose taxpayer funding of effectivesuper-visory machinery for monitoring and enforcement.

The most familiar government monitors of wrongs andenforcers of rights are the courts themselves. Indeed, the notionthat rights are basically "walls against the state" often rests uponthe confused belief that the judiciary is not a branch of govern-

ment at all, that judges (who exercise jurisdiction over police-officers, executive agencies, legislarures, and other judges) arenot civil servants living off government salaries. But Americancourts are "ordained and established" by government; they arepart and parcel of the state. Judicial accessibility and openness toappeal are crowning achievements ofliberal state-building. Andtheir operating expenses are paid by tax revenues funneled suc-cessfully to the court and its officers; the judiciary on its own ishelpless to extract those revenues. Federal judges in the UnitedStates have lifetime tenure, and they are quite free from thesupervisory authority of the public prosecutor. But no well-func-tioning judiciary is financially independent. No court systemcan operate in a budgetary vacuum. No court can function with-out receiving regular injections of taxpayers' dollars to financeits efforts to discipline public or private violators of rights, andwhen those dollars are not forthcoming, rights cannot be vindi-cated. To the extent that rights enforcemenr depends upon judi-cial vigilance, rights cost, at a minimum, whatever it costs torecruit, train, supply, pay, and (in rurn) monitor the judicial cus-todians of our basic rights.

When the holder of a legal right is wronged, he may usuallypetition a taxpayer-salaried judge for relief. To obtain a remedy,which is a form of government action, the wronged party exer-cises his right to use the publicly financed system of litigation,which must be kept readily available for this purpose. To havea right, it has been said, is always to be a potential plaintiff orappellant.6 Rights can be retrenched, as a consequence, by.mak-ing it harder for complainanrs to seek vindication before a Judge.One way to do this is to deprive courts of their operating funds.To claim a right successfully, by contrast, is to set in motion

the coercive and corrective machinery of publíc authority. Thismachinery is expensive to operate, and the taxpaye~must defraythe costs. That is one of the sensesin which even apparently neg-ative rights are, in actualíty, state-provided benefits.

To protect rights, judges exact obedience. Courts issueinjunctions to restrain the unlawful infringement of patents orto force realty companies to rent to African Americans under theFair Housing Act of 1968. To insure freedom of information,courts order federal agencies to provide information reguestedby the publiCo Liberty, in such cases, hinges upon authority.When judicial oversight is lax, rights are correspondingly flim-sy or elusive. American immigration authorities routinely dis-criminate on the basis of physical disabilíty, polítical opinion,and national origino To remark that aliens trying to enter theUnited States have few legal rights is to observe that, underAmerican law, they have little access to publicly funded judi-cial remedies.

But courts are not the only tax-funded government bodiesto delíver remedies. For instance, consumer protection bureausin various states regularly receive complaints and act to protectconsumers' rights by penalizing the unfair and deceptive prac-tices of retailers. At the federallevel, the Consumer ProductSafety Commission spent $41 million in 1996 identifying andanalyzing hazardous products and enforcing manufacturer com-pliance with federal standards.7 Many other government agen-cies serve similar rights-enforcing functions. The Department ofJustice itself spent $64 million on "civil rights matters" in1996. The National Labor Relations Board (NLRB), which costthe taxpayer $170 million in 1996, protects the rights of work-ers by imposing oblígations on management. The Occupation-

aI Safety and Health Administration (OSHA)-$306 millionexpended in 1996-defends the rights of workers by oblígingemployers to provi de a safe and healthy workplace. The EgualEmployment Opportunity Commission (EEOC), with a 1996budget of $233 million, safeguards the rights of employees andjob seekers by obliging employers not to discriminate in hir-ing, firing, promotion, and transfers.8 ln every one of these cases,the cost of enforcing rights can be chalked up to the price ofenforcing their correlative duties.

To be sure, it is possible to complain that several or alI ofthese agencies are wasteful or toa expensive, or even that some ofthem should be abolished. But while no particular set of insti-tutions is ideal, some substantial governmental machinery forproviding remedies must remain, for rights have nothing to dowith autonomy from publíc authority. Because the wholIy pri-vate and self-sufficient individual has no rights, it is implausibleto be "for rights" and "against government."

A few more examples will help clarify this point. The rightto begueath one's private property to heirs of one's choice-"the right to speak after death"-is obviously a power that noindividual testator can exercise autonomously, without theactive assistance of state agencies. (Proceedings for construingand establishing the validity of wilIs, and arbitrating the dis-putes to which wills sometimes give rise, are managed by pro-bate courts, which are funded by taxpayers, not merely by userfees.)And the right to make an enforceable will is perfectly typ-ical, for no rightsholder is autonomous. What would the right tomarry mean without public institutions, which must spend tax-payers' money to define and create the institution of marriage?What would the right to child support mean in practice if state

agencies could not successfully fulfill requests to locate parentsor deduct unpaid support from federal and state tax refunds?What would the copyrights owned by private American enter-tainment industries be worth in, say, China, if the V.S. govern-ment did not put its official weight behind their enforcement?

Something similar can be said abollt the right to privateproperty. American law protects the property rights of ownersnot by leaving them alone but by coercively excluding nonown-ers (say, the homeless) who might otherwise be sorely tempted totrespasso Every creditor has a right to demand that the debtorrepay his debt; in practice, this means that the creditor can insti-gate a two-party judicial procedure against a defaulting debtorin which a delict is ascertained and a sanction imposed. And hecan aIso count on the sheriff to "levy upon" the personal prop-erty of the debtor, to sell it, and then to pay the delinquent'sdebts from the proceeds. The property rights of creditors, likethe property rights of landowners, would be empty words with-out such positive actions by publicly salaried officials.

The financing of basic rights through tax revenues helps ussee clearly that rights are public goods: taxpayer-funded andgovernment-managed social services designed to improve col-lective and individual well-being. All rights are positive rights.

Chapter TwoTHE NECESSITY OF

GOVERNMENT PERFORMANCE

THE IDEATHATRIGHTSAREESSENTIALLYAIMED"against" gov-ernment, rather than calling on government, is patently wrongwhen applied to what is sometimes called "private law." Rightsin contract law and tort law are not only enforced but also cre-ated, interpreted, and revised by public agencies. At both fed-eral and state levels, courts and legislatures are constantlycreating and readjusting the legal mIes that give meaning torights, as well as specifying and respecifying the various excep-tions to these mIes. By adjudication and legislation, publicauthorities not only enforce contracts but also decide which con-tracts are enforceable and which are unenforceable, uncon-scionable, or otherwise meaningless pieces of paper. Judges andlegislators not only award damages to the victims of negligencebut also identify which excuses are legally acceptable for whatmight otherwise be classified as negligent behavior. The right ofAmerican citizens to sue an FBl agent for violating their rightsunder color of law is wholly defined by statutes and statutoryand constitutional interpretation. The rights of out-of-staterecreational and commercial fishers owe much of their content tojudicial interpretation of the privileges and immunities clauseand all of their content to positive law.

The mles defining ordinary rights of this sort are intricate,technical, and full of highly subtle qualifications. ln American

jurisdictions, for instance, contract law generalIy stipulates thatan injured party cannot colIect damages for a loss that he couldhave avoided after he learned of the breach of contract. An indi-vidual who asserts his rights under contract law or tort law musttherefore master, or submit to, a complex tissue of rules andexceptions that are, in turn, administered by state officials. Hemust avail himself of the public power first for the specificationof these mIes (and exceptions), then for their interpretation,and finalIy for their enforcement.

The plaintifE's right to bring an action at law against a defen-dant is not adequately described as a right "against" the state.It is neither a right to be independent of the state nor a rightthat protects the rightsholder fram the state, bur rather a rightto use state power to give legal effect to a private agreement, toenjoin trespassers from entering private praperty, to colIect com-pensatory or puni tive damages fram someone who has negli-gently or recklessly caused an injury, and so forth. When I suesomeone under contract or tort law, I am not trying to get thegovernment "offmy back"; I am trying to get it "on my case." Inprivate law, the rightsholder does not need government for-bearance; he needs government performance.

To draw attention to the positive rale of government in thepratection of each and everyAmerican liberty is not to deny that,for very limited purposes, some versions of the negative/positivedichotomy may be usefulIy applied to the analysis of rights. It isperfectly plausible to distinguish between performances and for-bearances. The landowner has a legal right that passersby refrainfram trespassing on his land. A contract holder may have a rightto ensure that third parties do not interfere with an ongoingcontractual relationship. In each case, to have a right is to have a

legal power to prevent others fram acting in a harmful way.l Sucha right to the self-restraint of others can be usefulIy contrastedto rights to compel the desirable actions of others, such as theright of a creditor legalIy to coerce a debtor to repay a debt, or aright of a contracting party to compel his contractual partner toperform.

Because American law recognizes wrangful omissions as welIas wrongful commissions, the distinction between rights torequire action and rights to prahibit action is useful and impor-tanto But it should not be confused with the much less plausi-ble distinction between negative and positive rights, as theseconcepts are commonly deployed, not only by the SupremeCourt. The wholIy reasonable distinction between forbearanceand performance lends no credence to the opposition betweenimmunity against government interference and entitlement togovernment service. For the forbearance/performance dichoto-my, as just described, does not, in the first instance, refer to gov-ernment action at alI. One private individual has a right eitherto force another private individual to act or to preclude anotherprivate individual fram acting. In both cases,obviously, enforce-ment of a right requires decisive government performance. Toprotect myself from trespassers and to collect fram a delinquentdebtor, I have a right to set in motion a tax-funded system oflit-igation, devoted to accurate fact-finding (which is far fram easy)and operated by government bodies-namely, the courts.

How EXCEPTIONAL ARE CONSTITUTIONAL RIGHTS?

But are not private-law rights (such as the right to sue for breachof contract) quite unlike constitutional rights (such as freedomof speech)? It makes little sense to distinguish between proper-

ty rights and welfare rights by calIing the former negative andthe latter positive. Is it more plausible to label private-Iaw rightsas positive (requiring government action), and constitutionalrights as negative (requiring governmental self-restraint)? Whenspeaking of rights against state action, after all, the SupremeCourt was referring exclusively to constitutional rights. So thisquestion arises: are the liberties protected under the Bill ofRights wholIy negative? Do they require the state to refrainfrom acting without requiring the state to act?

Some constitutional rights depend for their existence on pos-itive acts by the state, and the government is therefore under aconstitutional duty to perform, not to forbear, under the Con-stitution as it stands. If it alIows one person to enslave another,by doing nothing to disrupt an arrangement that amounts toinvoluntary servitude, the state has violated the ThirteenthAmendment. Under the First Amendment's protection of free-dom of speech, states must keep streets and parks open forexpressive activity, even though it is expensive to do this, andto do it requires an affirmative act. Under the protection against"takings" of private property without just compensation, thegovernment is probably under an obligation to create trespasslaw and to make it available to property owners, and a partialor complete repeal of the law of trespass-a failure to act, inother words, to protect private property-would likely beunconstitutional. If a judge accepts a bribe offered by a defen-dant and therefore does nothing to protect the plaintifE's rights,the judge has violated the due process clause. If a state declinesto make its courts available to enforce certain contract rights, ithas probably impaired the obligations of contracts, in violation

of the contracts clause. In all these cases, the government isobliged, by the Constirution, to protect and to perform.

PracticalIy speaking, the government "enfranchises" citizensby providing the legal facilities, such as polIing stations, with-out which they could not exercise their rights. The right to voteis meaningless if polIing place officials fail to show up for work.The right to just compensation for confiscated property is amockery if the Treasury fails to disburse. The First Amendmentright to petition for a redress of grievances is a right of accesstogovernment institutions and a right, incidentalIy, that assumesthat the government can perform for the benefit of aggrievedcitizens. Nor is this alI.

If an agency of the American government tries to depriveanyone of life, liberty, or property, it is required to give that per-son timely notice and provide an opportunity to be heard beforean impartial body. The right to subpoena witnesses in one's owndefense is useless if the court's solemn writs and summonses aregreeted with laughter. And what does it mean to say that stateand federal governments are prohibited fromdenying equal pro-tection before the law if not that they are required to provideit? Protection against unequal treatment by government officialsrequires other government officials to receive and resolve com-plaints. The constitutional right to due process-like the pri-vate right to bring an action in contract or tort-presupposesthat, at the taxpayers' expense, the state maintains and makesaccessible complex and relatively transparent legal institutionswithin which the cumbersome formalities of fair, public, andunderstandable adjudication occur.

Admittedly, some important constitutional rights are plausi-

bly styled as duties of the government to forbear rather than toperform. But even those "negative rights"-such as prohibitionson double jeopardy and excessive fines-will be protected onlyif they find a protector, only if there exists a supervisory statebody, usually a court of some kind, able to force its will upon theviolators or potential violators of the rights at issue. Even rightsreasonably described as operating "against" the state requirethe (affirmative) creation and strengthening of relations of over-sight, command, and obedience so that rogue officials(indudingpolice officers and prison guards) do not behave cruelly or dis-criminatorily. ln some cases,public officialsmust indeed be keptout of protected zones. But those zones qualify as protected onlybecause of affirmative government, and to achieve the desiredprotection, vulnerable individuaIs must have relatively easyaccess to a second, higher-Ievel set of government actors whosedecisions are deemed authoritative.

Nonperforming public officials-whether apathetic or bribe-·taking or remissly supervised-will not enforce constitutionalrights any more effectively than they enforce rights held understatutes and common law. The very idea that a certain kind ofprocess is "due" demonstrates that constitutional rights imposeaffirmative obligations on the state. Giving citizens access tocourts and other adjudicative forums is not like giving themaccess to natural harbors and navigable waters, because the gov-ernment must not only brush aside hindrances to access, butmust actually create the institutions to which access is beinggranted. "Avenues of relief" are maintained in passable condi-tion by government officials. The operating expenses of Ameri-can courts alone run in the billions of dollars every year, andthe American taxpayer picks up the tab.

lnvariably, rights pit power against power. Under tort law,rights enlist the power of government to extract compensatoryor puni tive damages from private wrongdoers. Under constitu-tionallaw, rights bring the power of one branch of governmentto bear upon wrongdoers from other government agencies. Forinstance, in the late 1960s, the Supreme Court protected theright of students to wear black armbands to school (in a protestagainst the Vietnam War) by overruling public high schoolauthorities.2 Protection "against" government is thereforeunthinkable without protection "by" government. This is exact-ly what Montesquieu had in mind when he asserted that free-dom can be protected only if power checks power. 3 No legalsystem can defend people against public officials withoutdefending people by means of public officials.

When a right is enforced, moreover, somebody wins andsomebody loses. The enforcement of a right (whether it is a rightagainst racial discrimination or a right to collect compensatorydamages) is "accepted" by the losing party because that party hasno choice, that is, because the full power of the state has comedown on the side of the rightsholder, and thus against the losingparty. Conversely, curtailing a right often involves curtailing thepower of the government agency that enforces it in the face ofserious resistance. For instance, if a political pressure groupwants to cut back the existing rights of American workers, itwill try to diminish the authority of OSHA, the EEOC, or theNLRB. This is strong evidence that rights depend essentially onpower.

The dependency of liberty on authority should be especially

I Iobvious in the United States, where rights against abuse by stateand local officials have long been enforced by federal officials.The "incorporation doctrine," which extends most of the BilI ofRights to the states, protects individualliberties not by remov-ing government from the scene, but by giving national author-ities the power to overrule state authorities. The FourteenthAmendment prohibits the states from denying anyone equalprotection of the law or depriving them of life, liberty, or prop-erty without due process of law. Such a prohibition would beholIow if the federal government did not have the power to beardown on recalcitrant states.

"Congress shalI have power to enforce this article by appro-priate legislation." AlI ihree Civil War amendments containsuch enforcement clauses. So the amended Constitution explic-itly vests the federal government with the capacity to realize inpractice the individual rights it proclaims in principIe. Withoutsuch governmental powers, rights would have no "bite." To pro-tect the rights of southern blacks, more than once in our histo-ry the national government has dispatched federal troops to theSouth. Without such a show of force, the individual rights of alarge group of Americans would have remained a cruel charade.To prevent racial segregation in education, national involvementwas necessary, sometimes including the threat to meet violencewith violence. Until Congress and the former Department ofHealth, Education, and Welfare applied irresistible financialpressure, in any case, school districts in the deep South simplyignored the Supreme Court's desegregation orders. When stategovernment is discriminating, the right to be free from racialdiscrimination, like the right to property, requires affirmativeassistance from government, in this case the nation itself.

ln the area of voting rights, the same pattern has prevailed.The Voting Rights Act of 1964--designed to vindicate consti-tutional rights-calIed for more involvement by the nationalgovernment, not less. Dntil Congress legalIy prohibited the useof literacy tests, states contrived to disenfranchise black Ameri-cans for reasons of race. This is just a further illustration of ageneral truth: individual rights are invariably an expression ofgovernmental power and authority.

Not included in the original Constitution, the Bill ofRightswas added to the Constitution two years after its ratificationpartly to appease those who desired a weaker and more con-strained national government. But that was not its only purpose,and that has not been its effect in practice. By extending thescope of the Bill ofRights, the Supreme Court, a national insti-tution, has steadily encroached on preserves of state power. Stateautonomy has been whittled away and federal power corre-spondingly enhanced in the name of individual rights. (Admit-tedly, the opposite has also occasionalIy occurred.) lndeed, one ofthe consequences of the enhancement of federal power has beento apply the prohibition on uncompensated takings of privateproperty to the states-requiring state governments, forinsrance, to compensate people, as a matter of federal constitu-tionallaw, when regulation has rendered their beachfront prop-erty valueless.

Decentralizing government has no logical connection withlimiting the encroachment of government into society. Many ofthe originallimits on Congress's authority were not meant topreserve immunity from government, but simply to clear a spacefor unsupervised state regulation, as opposed to federal regula-tion, of private economic behavior. To create a national market,

against the protectionist impulses of local authorities, the fed-eral government had no choice but to erode state regulatoryautonomy. And this is perfectly normal: a lower authority willusually retreat only when a higher authority steps forward.

The framers of the American Constitution sought to estab-lish a strong and effective government armed with capacitiesthat the anemic government created under the Articles of Con-federation notoriously lacked. A constitution that does not orga-nize effective and publicly supported government, capable oftaxing and spending, will necessarily fail to protect rights inpractice. This has been a lesson long in learning, and not only forlibertarians and free-market economists, but also for somehuman-rights advocateswho have selflesslydevoted their careersto a militant campaign against brutal and over-mighty states.All-out adversaries of state power cannot be consistent defendersof individual rights, for rights are an enforced uniformity,imposed by the government and funded by the publiCoEqualtreatment before the law cannot be secured over a vast territorywithout relatively effective, honest, centralized bureaucraticagencies capable of creating and enforcing rights.

Chapter ThreeNo PROPERTY WITHOUT TAXATION

ACCORDING TO THE BRITISH PHILOSOPHER ]EREMY BENTHAM,

"property and law are bom together and die together. Beforethe laws there was no property; take away the laws, all propertyceases."l Every first-year law srudent learns that private proper-ty is not an "object" or a "thing" but a complex bundle of rights.Property is a legally constructed social relation, a cluster of leg-islatively and judicially created and judicially enforceable rulesof access and exclusion. Without government, capable of layingdown and enforcing compliaoce with such rules, there wouldbe no right to use, enjoy, destroy, or dispose of the things weown. This is obviously true for rights to intangible property(such as bank accounts, stocks, or trademarks), for the right tosuch property cannot be asserted by taking physical possession,ooly by ao action at law. But it is equally true of taogible prop-erty. If the wielders of the police power are oot 00 your side,you will oot successfully "assert your right" to enter your ownhome aod make use of its contents. Property rights are mean-ingful ooly if public authorities use coercion to exclude nonown-ers, who, in the absence of law, might well trespass on propertythat owoers wish to maintaio as an ioviolable sanctuary. More-over, to the extent that markets presuppose a reliable system ofrecordation, protecting title from never-ending challeoge, prop-erty rights simultaneously presuppose the existence of many

competent and honest and adequately paid civil servants outsidethe police force. My rights to enter, use, exclude from, sell,bequeath, mortgage, and abate nuisances threatening "my"property palpably presuppose a well-organized and well-fundedcourt system.

A liberal government must refrain from violating rights. Itmust "respect" rights. But this way of speaking is misleadingbecause it reduces the government's role to that of a nonpartici-pant observer.A liberal legal system does not merely protect anddefend property. It defines and thus creates property. Withoutlegislation and adjudication there can be no property rights inthe way Americans understand that termo Government laysdown the mIes ofownership specifying who owns what and howparticular individuaIs acquire specific ownership rights. It iden-tifies, for instance, the maintenance and repair obligations oflandlords and how jointly owned property is to be soldoIt there-fore makes no more sense to associateproperty rights with "free-dom from government" than to associate the right to play chesswith freedom from the mIes of chess. Property rights existbecause possession and use are created and regulated by law.

Government must obviously help maintain owner controlover resources, predictably penalizing force and fraud and otherinfractions of the rules of the game. Much of the civillaw ofproperty and tort is designed to carry out this business. Andthe criminal justice system channels considerable publicresources to the deterrence of crimes against property: larceny,burglary, shoplifting, embezzlement, extortion, the forging ofwills, receiving stolen goods, blackmail, arson, and so forth. Thecriminallaw (inflicting punishments) and the civillaw (exactingrestitution or compensation) conduct a permanent, two-front,

and publicly financed war on those who offend against the rightsof owners.

David Hume, the Scottish philosopher, liked to point outthat private property is a monopoly granted and maintained bypublic authority at the public's expense. As the English juristWilliam Blackstone, following Hume, also explained, proper-ty is "a poli ti cal establishment."2 In drawing attention to therelation between property and law-which is to say, betweenproperty and government-Bentham was making the very samepoint. The private sphere of property relations takes its presentform thanks to the political organization of soeiety.Private prop-erty depends for its very existence on the quality of public insti-tutions and on state action, including credible threats ofprosecution and civil action.

What needs to be added to these observations is the correla-tive proposition that property rights depend on a state that iswilling to tax and spend. Property rights are costly to enforce.To identify the precise monetary sum devoted to the protectionof property rights, of course, raises difficult issues of accounting.But this much is clear: a state that could not, under specifiedconditions, "take" private assets could not protect them effec-tively, either. The security of acquisitions and transactionsdepend, in a rudimentary sense, on the government's ability toextract resources from private citizens and apply them to pub-lic purposes. On balance, property rights may even place acharge upon the public treasury that vies with the burden ofour massive entitlement programs.

None of this denies that protection of property rights can bea valuable investment that increases aggregate wealth over time.On the contrary, the extraction and redistribution of resources

necessary to protect property rights is relatively easy to justify.Indeed, American liberalism, like its counterparts elsewhere inthe world, is based on the reasonable premi se that public invest-ment in the creation and maintenance of a system of privateproperty is richly repaid, not least of all becausereliably enforcedproperty rights help increase socialwealth and therefore, amongother benefits, swell the tax base upon which government candraw to protect other kinds of rights. But the strategic wisdomof an initial investment does not undo the fact that it is aninvestment.

The immense up-front costs of protecting private propertymount even higher if we include, as we surely must, protectionfrom foreign looters and marauders. The thousands of civiliansexpelled from their homes in Abkhazia or Bosnia-like otherforced migrants throughout the world-know that propertyrights are a mirage without military forces trained and equippedto protect owners from forcible seizures by invading armies ordrunken paramilitary gangs. The defense budget in a free-mar-ket society is a widely shared public contribution to, amongother ends, the protection of private property. Americans spent$265 billion in 1996 on defense and an additional $20 billionon veterans' benefits and services.3 Military expenditures mustunquestionably be counted among the public costs of the prop-erty rights that many Americans peaceably exercise and enjoy.

Conscription of low-income youth represents an importantway in which property holders may benefit directly from the"civic contributions" of the propertyless. Individual propertyholders are fundamentally dependent on collective efforts, bothdiplomatic and military, organized by the government, to pro-tect their land and housing stock from seizure by property-grab-

bing adjacent states. Montana "Freemen," citizens of the Repub-lic ofTexas, and other self-styled government-bashers who pre-tend they can defend their autonomy with mail-order shotgunsand hunting rifles would, in reality, be wholIy unable to pre-vent their private property from being gobbled up even by rel-atively weak foreign powers if most of their fellow citizens didnot regularly submit themselves to taxation and conscriptionby the national political community.

Where real estate is involved, in fact, ownership becomesquickly enmeshed with sovereignty (or with aspirations to sov-ereignty, as Palestinians caught selling land to Israelis find out).Defense spending is surely the most dramatic example of thedependency of private rights on public resources. Ir reveals thestatist preconditions of laissez-faire, the authority that under-writes liberty. At common law, only the sovereign is said to havean absolute interest in land: ordinary landowners "hold of thesovereign." This quaint legalism expresses a deep truth. Anautonomous individual, in a liberal society, cannot create theconditions ofhis own autonomy autonomously, but only collec-tively.

The most ardent antigovernrnent libertarian tacitly acceptshis own dependency on government, even while rhetoricalIydenouncing signs of dependency in others. This double-thinkis the core of the American libertarian stance. Those who prop-agate a libertarian philosophy-such as Robert Nozick, CharlesMurray, and Richard Epstein-speak fondly of the "minimalstate." But describing a political system that is genuinely capa-ble of repressing force and fraud as "minimal" is to suggest,against alI historical evidence, that such a system is easy toachieveand maintain. Ir is notoOne piece of evidence to the con-

trary is the amount we spend, as a nation, to protect privateproperty by punishing and deterring acquisitive crimes. ln1992, for instance, direct expenditures in the United States forpolice protection and criminal corrections ran to some $73 bil-lion-an amount that exceeds the entire GDP of more than halfof the countries in the world.4 Much of this public expendi-ture, naturally, was devoted to protecting private property. Evena purportedly hands-off state, if it wants to be serious aboutencouraging economic activity, must reliably protect home-owners and shopkeepers from burglars, arsonists, and otherthreats.

An effective liberal government, designed to repress forceand fraud, must avoid arbitrary and authoritarian tactics. Thosewho wield the tools of coercion must be institutionally disci-plined into using it for public, not private, purposes. ldeallyconceived, a liberal government extracts resources from societyfairlyand efficiently and redeploys them skillfully and respon-sibly to produce socially useful public goods and services, suchas the deterrence of theft. A successfulliberal state must bepolitically well organized in precisely this sense. lts govern-ment must be capable of creating a favorable business climatein which investors are confident that they will reap rewardstomorrow for efforts made today. Without such a state, well-functioning markets, capable of producing prosperity, are veryunlikely to emerge or survive. A state capable of reliably repress-ing force and fraud and enforcing property rights is a cooperativeachievement of the first magnitude, and the world is unfortu-nately filled with negative examples. But if private rightsdepend essentially on public resources, there can be no funda-mental opposition between "government" and "free markets,"

no contradiction between politically orchestrated social cooper-ation and footloose individualliberty.

Property owners are far from being self-reliant. They dependon social cooperation orchestrated by government officials.Defense against land-grabbing foreign predators is only oneexample of the way liberal individualism depends on effectivecollective action. Recordation is another. American taxpayersexpended $203 million for general property and records man-agement in 1997.5 Sunk costs in our recordation system aremuch larger. For real estate markets to operate effectively, a reli-able system of titles, deeds, and land surveys must be in place.Land registries and offices of public records require skilled andhonest staffs. The "free market" is unlikely to put roofs on pub-lic buildings where records are stored or establish criminalpenalties to deter bribery of officials in charge of registeringtitles to real or personal property. Surveyors, too, must be paidand monitored. The bare unobstructed latitude to buy and sellprivate property will not produce an explosion of mutually ben-eficial private exchanges unless potential buyers receive somesort of guarantee that the putative owner is selling something he(and he alone) actually owns. Without clearly defined, unam-biguously assigned, and legally enforceable property rights,ownership does not encourage stewardship. Title holders willneither cultivate their fields nor repair their homes if their rightsare not reliably protected by the public power.

Additional examples of government expenditures for the sakeof private property owners are legion; it is unnecessary to thinkthat all or even most are defensible in order to see the basic pat-tem. The American taxpayer spent almost $10 billion in 1996for agricultural subsidies designed to increase the value of the

private property rights of American farmers.6 The Army Corpsof Engineers expended around $1. 5 billion in 1996 on flood-plain management and other forms of flood control.7 The CoastGuard spent $1.26 bilIion in the same year in search and rescuemissions, aids to navigation, marine safety (including theremoval of dangerous wrecks and derelicts at sea), ice breaking,and so forth, alI of which helps protect the private property ofAmerican shippers and boat owners.8 Copyright, which is a formof property, also involves public expenditure. The CopyrightOffice and Copyright Royalty Tribunal, taken together, cost $28milIion in 1996; $18 milIion of this amount was covered by userfees, leaving roughly $10 million on the tab of the ordinarytaxpayer.9

The relatively high rate of owner occupancy in the UnitedStates is a creation not only of governmentalIy conferred rightsbut also of American mortgage, insurance, and tax law. It is cer-tainly not a product of government disengagement or laissez-faire. Some property owners would be forced to liquidate theirholdings if they were not alIowed to deduct the depreciation oftheir assets from their taxable income. And a tax deduction is aform of public subsidy. This is just one more example of the wayprivate property is affirmatively sustained by public subsidies.

Private property is not only protected by government agen-cies, such as the fire department. It is, more generalIy, a cre-ation of state action. Legislators and judges define the rules ofownership, just as they establish and interpret the regulationsgoverning alI of our basic rights. Does the accidental finder ofgoods have a legal right to judicial protection? Does a purchas-er acquire an ownership right to property bought for value andin good faith from a thief? What rights against a present occu-

pant belong to the owner of a future interest in real property?How many years of wrongful possession destroy the title of theoriginal owner? Can an ilIegitimate child inherit from its nat-ural parents by intestate succession? What happens if one jointowner selIs his portion of jointly owned property? Can I, with-out notice, cut offbranches from my neighbor's tree if they over-hang my land? Do I have a right to pile a mountain of garbagein my front yard? Can I build an electrical fence around myland with voltage high enough to kilI trespassers? Can I erect abuilding that cuts off my neighbor's vista? Can I advertise thefree viewing of pornographic videos in my front window? Can Istick posters on my neighbor's fence? Under what conditions iscopyright assignable? How much do which creditors colIect incase of bankruptcy? What rights do pawnbrokers have overgoods left to them upon pledge?

Thousands of questions of this sort are continuously asked bythose who have property rights and regularly answered by leg-islatures and courts, that is, by state agencies. The answers givenshift over time. In the United States, answers also vary fromone jurisdiction to another. For instance, spouses have a rightto income from each others' property in Idaho, Louisiana, Texas,and Wisconsin. In most of the rest of the country, they have nosuch rights. The state cannot "leave the owner alone," there-fore, because an owner is an owner only on the precise termslaid down at particular times by specific legislatures and courts.

Toprotect our property rights, American courts must admin-ister a technicalIy intricate and changing body of rules. Theserules are especialIy vital when two or more individuaIs haveoverlapping claims to the same piece of properry. Private prop-erty as we know ir exists only because legislarion and adjudica-

tion has specified the respective ownership rights of rivalclaimants-for instance, the property rights of authors and pub-lishers in a book or the property rights of employers andemployees in the invention of employees. Upon the death of aco-owner of real property, the law must decide if ownershiprights are to be transferred to the living co-owner(s) or to theheirs of the deceased co-owner. The law assigns property rightsby creating and enforcing rules for authoritatively settling dis-putes among rival claimants. To perform this function, judgesmust be trained, equipped, paid, protected from extortion, andprovided with a technical and clerical staff. This is what it meansto caUthe right to property a privately enjoyed public service.

Along the same lines, the basic ingredients of the law oftort-for example, my right to demand compensatory damagesfrom those who have negligently or willfuUydamaged my prop-erty-strongly suggest that property rights are less like lati-tudes and more like entitlements than American public rhetoriccommonly allows. Those who demand greater rights to com-pensation from government for public "takings"-through reg-ulation or otherwise-are in reality seeking entitlements. Theywant to be protected publicly and through law. This is not anargument against their claim of right. The regulatory statemight weUwork better if government had to pay property own-ers for the diminished value of land whenever, for example, newenvironmental regulations have impeded development. Butarguments to this effect should not be based on undiscriminat-ing protests against public invasions of autonomously heldrights.

Many polítical conservatives, but not they alone, urge gov-ernment to "get out of the marketplace." For their part, some

Iiberals counter that government quite legitimately interfereswith, or "steps into," the market whenever and wherever disad-vantaged Americans are at risk. But this familiar debate is built011 sand. No sharp line can be drawn between markets and gov-crtlment: the two entities have no existence detached from oneanother. Markets do not create prosperity beyond the "protectiveperimeter" of the law; they function weUonly with reliable leg-islative and judicial assistance.10

af coutse, inept governments can and do commit economicblunders. Without doubt, ill-devised and poorly timed policiescan and do make markets function poorly. The question is notfree markets or government but what kind of markets and whatkind of government. Governments not only have to lay theessentiallegislative and administrative foundations for a func-tioning market economy, they can also act to make market sys-tems more productive. They do so, for example, by adjusting theexchange rate of the national tender against foreign cutrencies,by disrupting anticompetítive monopolies, by building bridgesand railroads, and by financing the vocational training of thefuture workforce. As even Friedrich Hayek, the great criti c ofsocialism, remarked, "The question whether the state should orshould not 'act' or 'interfere' poses an altogether false alternative,and the term 'laissez-faire' is a highly ambiguous and mislead-ing description of the principIes on which a liberal policy isbased."ll

A liberal economy cannot function unless people are willingto rely on each other's word. For a market to be national, and notmerely local, reliance must extend beyond a small circle ofmutual acquaintances. ln such a system, reliance on the word ofrelative strangers cannot arise from personal reputations for fair-

ness alone. It must be cultivated and reinforced by public insti-tutions. For one thing, the government must make courts andother institutions available to enforce contracts. Public authori-ties cultivate the "reliance interest" by attaching property andforeclosing liens. Judges can send an individual to jail for con-tempt of court ifhe fails to comply with an order to carry out acontract lawfully entered into. Likewise, laws against defama-tion, geared to the protection of business and financial reputa-tions, help foster economically beneficial social trust. If contractswere not reliably enforced, it would be more difficult and per-haps even impossible to buy goods on credit or by installment.Without the active help of a sheriff, authorized by a COuttwrit,a seller could not easily repossessconsumer goods from a default-ing installment purchaser. More generally, payment by theinstallment plan, beneficial for the economy as a whole, wouldbe shunned if contracts were not reliably enforced.

In the truly autonomous realm, beyond the reach of govern-ment, property is not well protected. (In the abandoned ware-house at the edge of town where you lost your wallet, your rightto your property is not worth much.) Where the public powercannot effectively intrude, moreover, extortion is rampant andborrowers are unable to obtain long-term loans, for one functionof the liberal state is to lengthen the time horizons of privateactors by predictably enforcing known and stable rules. Proper-ty is worth little if you, and potential purchasers, do not believein the future. Confidence in long-term stabi!ity is partly a prod-uct of reliable law enforcement, that is, of forceful and decisivestate action.

But the first thing a government must do to make a marketsystem work is to overcome the age-old rule of force and threats

01" (()rce.Free markets do not function properly if profit-seekersli 11inhibitedly engage in criminal violence. Libertarians recog-Ilize this fact, but they fai! to appreciate the extent to which itlllldermines their boasted opposition to "government" as wellas to taxing and spending. Long-gestation investment in pro-d L1ctivefacilities, which creates jobs, is unlikely where assetsare indefensible against private extortionists. Neoclassical eco-Ilomics supposes that private competitors will not resort to vio-Ient crime in the pursuit of gain. Within its own framework,laissez-faire theory is helpless to explain the basis of civiliza-[-ion,the general renunciation of violence by advantage-seekingindividuaIs and groups. Why do most American entrepreneurshesitate to threaten and kill their competitors? The theory offree markets, as it is currently taught in American universities,tacitly assumes that the problems of short time horizons and vio-lent competition, characterizing the state of nature, have alreadybeen solved. For the most part, in other words, the science ofeconomics (unlike, say, the science of anthropology) tacitly pre-supposes the existence of an active and reliable system of crimi-nal justice.

Even on their own terms, doctrinaire libertarians mustacknowledge that government cannot "pull out" of the economywithout leaving private individuaIs helplessly vulnerable toruthless predators. The relatively peaceful exchange of goods andservices, as we know it, is a product of civilized self-restraint andtherefore should be understood as a historically improbable andfragile achievement. In the state of nature, a handful of killersand thieves willing to employ deadly force and hazard their liveson a dare can cow a large civilian population. They can estab-lish anticompetitive monopolies, for instance, and dramatically

shrink the sphere of voluntary exchange. Only a reliable publicpower can break such an anarchical reign of fear and legal uncer-tainty. Only a state can create a vibrant market. Furthermoreonlya national government can weave together disconnecte~local markets into a single national market. For why would awholesaler in New Jersey sell to a retailer in California if con-tracts could not be reliably enforced across state lines?

If the government wholly disengages from the economy, theeconomy will not be free in the sense we admire, and it willcertainly not produce the historically unprecedented prosperityto which many Americans have grown accustomed. Voluntaryexchanges will occur, as they do even in the poorest of coun-tries, and we may see inchoate versions of well-functioning mar-kets. But government inaction creates an economic system vexedby force, monopoly, intimidation, and narrow localisms. Theindividual's freedom, his "right to be left alone" by thugs andthieves, cannot be separated from his entitlement to state help-that is, his claim to a range of public services (basic legal provi-sions and protections) from the government. The effort of socialcoordination it takes to build even a "minimal" state, capableof repressing force and threats of force, is truly massive andshould not be taken for granted.

Capitalists certainly know this and tend not to invest wherepolitical risk is excessive, as in some of the emerging EasternEuropean democracies. Their problem is not toa much govern-ment but too little government. When government is incoher-ent, incompetent, and unpredictable, economic actors do notthink very far into the future. Not free-enterprise but robbercapitalism-the rule of the violent and the unscrupulous-thrives in the absence of law and order.

Swindling is nearly as great a threat to free markets as force,and enforceable antifraud law also presupposes a well-organizedand effective system of governance. To some extent marketsthemselves will deter fraud; people who lie and cheat at the dropof a hat tend not to compete well. But without effectiveantifraud legislation, private parties will often hesitate to under-take what both sides nevertheless anticipate would be a mutu-ally advantageous voluntary exchange. Antifraud legislation, inturn, costs taxpayer money to enforce. The Federal Trade Com-mission (FTC) spent $31 million in 1996 investigating unfairand deceptive practices and removing other obstacles to marketperformance.12 Perhaps this is toa much, perhaps the case foran FTC is weak, but any market reguires governmental assis-tance in protecting against fraud, and that assistance is likelyto be costly.

The Securities and Exchange Commission (SEC), throughits "full disclosure" program (which cost the taxpayer $58 mil-lion in 1996), reguires publicly traded companies to furnishmanagement, financial, and business information on a regularbasis so that investors will be able to make informed decisions.The SEC spent an additional $101 million in 1996 on the pre-

. ff d' h .. k 13vention and suppreSSlOn o rau 10 t e SeCUtltles mar et.Oversight of the stock market and commodity futures marketcost the American raxpayer $355 million in 1996.14

In the absence of government machinery capable of detectingand remedying misrepresentation and false dealing, freeexchange would be an even more risky business than ir is. Theact of buying and selling is often worrisome in the absence ofreliable means to counteract the asymmetry of knowledgebetween buyer and seller. The seller frequently knows some-

thing the buyer needs to know. That is one reason why the risk-averse fear commercial exchanges as possible scams, why theycling to suppliers they know personally rather than shoppingaround for bargains. Public officials can discourage this kind ofclinging, promote market ordering, and discourage swindlers byinsuring against any damage arising from the asymmetry ofinformation between buyers and sellers. To help consumersmake rational choices about where to obtain credit, for instance,the Consumer Credit Protection Act forcesany organization thatextends credit to disclose its finance charges and annual per-centage rate. Just so, consumers benefit from competi tive mar-kets in restaurants because, as voters and taxpayers, they havecreated and funded sanitation boards that allow them to rangeadventurously beyond a restricted circle of personally known andtrusted establishments. The enforcement of disclosure rules orantifraud statutes is no less a taxpayer-funded spur to marketbehavior than government inspection of food handlers.

The appropriate leveI of federal spending and governmentoversight will remain controversial. Nothing said above isintended as a defense of any particular program; some existingprograms should undoubtedly be scaled down. What cannot bedenied is that enforceable antifraud legislation is a commongood, embodying biblically simple moral principIes (keep yourpromises, tell the truth, cheating is wrong). Moreover, the ben-efits of antifraud law cannot be captured by a few but are dif-fused widely throughout society. It is a public service,collectively provided, and serving to reduce transaction costsand promote a free-wheeling atmosphere of buying and sellingthat would be very unlikely to arise if "caveat emptor!" werethe sole rule.

Admittedly, the current economic boom in China suggeststhat, when suitably integrated into the world economy, a societywithout a strong court system can use kinship and other infor-mal networks to breed credible commitments even in theabsence of reliable judicial enforcement of property rights. In

most industrialized societies and as a general mIe, however, freemarkets depend on enforceable contract law and a liberal style ofgovernance. To deter fraud, a government must be intervention-ist and well funded. American taxpayers have proven willing tofoot the bill partly because they see the obvious advantages inthe monitoring of private exchanges by politically accountableofficials.

Government must not only repress force and fraud, invest ininfrastructure and skills, enforce stockholders' rights, and pro-vide securities exchange oversight and patent and trademarkprotection. Ir must legalIy clarify the status of colIateral. Andit must regulate the banking sector and credit markets to pre-vent pyramid schemes and ensure a steady flow of credit to busi-nesses rather than cronies. The enforcement of antitrust law isalso crucial. For the reliable delivery of these public services,markets reguire government. At the taxpayer's expense, the statemust foster innovation, encourage investment, boost workerproductivity, raise production standards, or stimulate the effi-cient use of scarce resources. It can do this, among other ways, bydefining property and contract rights clearly, assigning themunambiguously, and protecting them impartialIy and reliably.The job is neither easy nor cheap.

To do alI this, governments need first to colIect moneythrough taxation and then to channel it intelIigently andresponsibly. Rights enforcement of the sort presupposed by well-

functioning markets always involves "taxing and spending."Needless to say, the inevirable dependency of markets on law,~~r~a~cracy,and public policy does not imply that government1~ltIatIvesare always wise or beneficia!. As a poli tical commu-nIt~, we have choices-but only among competing regulatoryregImes.

Chapter FourWATCHOOG8 MU8T BE PAIO

IN 1992, THEADMINISTRATlüNüFJUSTICEin the United States-including enforcement, litigation, adjudication, and correc-tion-cost the taxpayer around $94 billion. I Included in thisaUocation were funds earmarked for the protection of the basicrights of suspects and detainees. Because ir always presupposesthe creation and maintenance of relations of authority, the pro-tection of individual rights is never free. True of the rights ofproperty and contract, this aIso applies to the rights protectedwithin our system of criminal justice, including of course therights of people who are not in fact criminals. Here again, rightsenforcers must be in a position to teU potential rights violatorswhat to do and what not to do. The history of habeas corpus con-firms the validity of the thesis that an abusive power can besuccessfuUy counterattacked only by another power. Classicalliberal rights necessarily depend on relations of command andobedience that, in turn, are expensive to create and maintain.This can be observed clearly in the case of prisoners, whoserights cannot be even minimaUy protected unless their custodi-ans are monitored from above and penalized for abuses.Although sometimes denounced as a hindrance to law enforce-ment, protecting the rights of prisoners means nothing morethan forcing correctional officers to obey the law. These rightsare sometimes controversial, but the basic point-the need to

monitor public officials who exercise coercion-is quite gener-al and applies, in different forms, to the rights of the law-abid-ing as well as of those convicted of crimes.

Protecting prisoners' rights, even quite modestly, is costly.Toavoid degrading treatment, prison cells must be ventilated,heated, lit, and cleaned. Prison food must provide minimalnutrition. The Eighth Amendment demands that prison war-dens and guards provide minimally humane conditions of con-finement. A prison official violates a constitutional right wherethe deprivation alleged is, objectively, "sufficiently serious,,2andif he acts with "deliberate indifference" to inmate health andsafety. ln the federal prison system alone, medical care costs ranto $53 million in 1996.3 Authorities cannot segregate inmatesfrom the general prison population without using fair proce-dures. Officials institutionally positioned to penalize flagrantabuses (such as murder or torture) must "monitor the monitors."And to assure access to the appeals process, prison authoritiesmust provide prisoners with "adequate law libraries or adequateassistance to persons trained in the law.,,4

ln other words, the right to be treated decently in the sys-tem of criminal justice-by police, prosecutors, judges, prisonguards, and probation officers-presupposes the power ofbureaucratic superiors to punish and deter misconduct by sub-ordinates. Procedures must be established and responsibilityassigned for determining the legality or illegality of detention.The enforceable rights of the interrogated are the enforceableduties of the interrogators. The rights of prisoners are the dutiesof wardens and guards. Protecting rights within the Americancriminal justice system requires oversight of the law-enforce-ment apparatus. Whatever their attitude toward red tape,

defenders of rights cannot be consistently antibureaucratic, forpolice and prison guards behave more decently when monitoredthan when unwatched. And second-Ievel supervisory personnelmust be given adequate training and paid a living wage.

The cost of training and monitoring correctional officers is aconcrete illustration of the indispensable contribution of the tax-paying community to the protection of individualliberties.5

True, it is more familiar to style the rights protected withinour criminal justice system as purely negative, as rights againstthe government, as shields from police and prosecutorial andcustodial abuse. But attention to the cost of rights should helPus focus attention on the other side of the coin, namely on theforms of state action required for rights of suspects and detaineesto be a palpable reality rather than a mere paper promise. Nor, itis important to emphasize, are the rights protected by the crim-inal justice system solely protections of criminaIs, or even ofthe wrongly accused. Ordinary citizens depend, for their pro-tection against the state and thus for their so-called negative lib-erties, on the taxpayer-funded rraining and monitoring of thepolice.

Because it involves federal supremacy, the extension of mostFourth, Fifth, and Sixth Amendment protections to individuaIssuspected, accused, or convicted of crimes within the states nice-ly exemplifies the positive side of ostensibly negative rights. Thegoveroment, as the agent of American taxpayers, provides theaccused with certain weapons (rights) which, it is expected orhoped, will help reduce improper conduct by officials and eventhe odds against the occasionally overwhelming power of theprosecution. Thus, the right to a speedy, fair, and public jurytrial is an entitlement to a taxpayer-funded benefit or service.

Needless to say, the rights of accused Americans-rich andpoor, black and white-are not protected equally. But our crim-inal justice system would be even more grossly unfair if the com-munity as a whole did not subsidize some basic protections. lnthe 1996 V.S. budget, covering only federal trials, $81 millionwent to fees and expenses for obtaining witnesses.6 The accuseddoes not have to rely on his own resoutces to compel witnesses totestify in his favor; he is legally entitled to employ resourcesdrawn from the community as a whole. Ability to pay bears norational relation to innocence or guilt. This, at least, is theSupreme Court's explicit rationale for the right of the indigentaccused, even on appeal, to a lawyer whose salary will be paidby the public. Equal protection implies a constitutional rightof access to whatever appel1ate process a state makes general1yavailableJ Vnder existing law, American taxpayers must pay forblood grouping tests for indigent defendants in paternity casesand for psychiatric assistance for indigent defendants in somecriminal cases. And to ensure that court-appointed attorneysare not in the pocket of the prosecutor, some sort of independentsupervision is obviously required.

Even the right of the accused to be free pending trial pre-supposes the bureaucratic capacity to set up and administer sys-tems of bail and release on recognizance. Such a right would beunavailable if the state could not perform-that is, if the crim-inal justice system could not, with relative accuracy, distin-guish defendants who wil1 show up for trial from those likelyto jump bail, or train its police wel1enough to conduct a com-petent investigation without keeping suspects uninterruptedlybehind bars.

The dury of the police to refrain from unreasonable searches

and seizures is meaningless unless the courts have the capacity tocompel the police to comply with the Constitution. This capac-ity depends importantly on social norms and expectations andon the training and norms of the police, but it also depends onthe fiscal wherewithal of the judiciary. Searches must be autho-rized in advance by warrants issued by neutral and detachedmagistrates upon proof of probable cause, and the salaries ofthese nonpartisan judges cannot be manipulated in an ad hocmanner by officials in the other branches of government. Theexclusionary mIe, barring from trial any evidence gathered ille-gally, is one way the American judiciary has tried to enforcepolice compliance or at least to offer constiturional instmctionsto officers engaged in crime prevention. The exclusionary mIehas been gradually softened by exceptions, to be sure. Bur whyhas this tendency to diminish the pre-existing rights of sus-pects and defendants been supported by those who want to betough on crime? Only because such a mIe represents a form ofsupervisory interference thought to handcuff the police andweaken the fight against crime by permitting police illegality totaint otherwise solid evidence. To erode a right-whether desir-able or not-often means impairing a publicly funded supervi-sory power.

ln effect, the rights of the accused and the incarcerated con-tract and expand as the American judiciary is sometimes more,sometimes less deferential toward the executive branch's war oncrime. This oscillation shows, yet again, that the breadth of ourliberties depends upon the resolve of our authorities. But it isworth stressing that rights cannot be based on government for-bearance, for an even more basic reason. Rights come into beingonly after a government agency, often a court, makes the effort

to define such basic terms as "excessive," "reasonable," and"cruel." The precise scope of our rights changes over time asthe courts decide. The court's job is not simply to prevent theexecutive branch from acting abusively (taking that term as arough placeholder for what the Constitution forbids). It alsohas to set dawn the criteria for distinguishing abusive fromnonabusive action. This is an affirmative task it cannot avoid.When is a search ar seizure unreasonable? At what paint in timedoes a suspect have a right to caunsel-already at the line-up, oronly at the preliminary hearing? Under what conditions can offi-cers initiate interrogation? In the criminal justice system, rightsalways presuppose at least one form of state action because theyalways assume that the court has given answers, for better arworse, to these and other similar questions. Judicial inaction, arefusal to answer, is not an option.

The Rehnquist Caurt has reinterpreted and thus reducedmany of the rights in criminal procedure established by theWarren Caurt. Ir has achieved this end not by flat prohibitionsbut by its own readings-namely, by drawing distinctians andredefining a handful af essential terms. Even under Warren-eramIes, the prasecurion was able to introduce at trial evidence thatthe police, in the absence af a warrant, had faund "in plainview." But the Rehnquist Court has enlarged this category byadmitting, for example, evidence detected by aerial surveillanceusing saphisticated cameras. By distinguishing between a mere"stop" and a genuine "arrest" the current Court has aIso per-mitted the use af evidence disclased by police friskings, such asweapons or contraband, that would otherwise have been exclud-ed. It has similarly declared that the "reasonable expectation ofprivacy" does not cover sealed garbage bags deposited in a

dumpster. The Sixth Amendment guarantees an accused personthe right "to be confronted with the witnesses against him,"but the Court has decided that this right can be waived in casesinvolving the sexual abuse of children who would be psycho-logically harmed by having to sit face to face with their pre-sumed victimizer.

Some of these new lines drawn by the Court are quite rea-sonable, while others seem less so. But this is a side issue; whatmatters here is that the rights of Americans are creatures of stateaction. The very scope of our rights against police, prasecutari-aI and custodial abuse is established by judicial interpretation,,that is, by government perfarmance. The enforcement of theserights by judicial authority over executive-branch officials ismerely a secondary illustration of the dependence of individualliberty on state action. The first and most basic way in whichpublicly funded authorities affect liberty is by defining its scope.The community does not protect any imagined freedoms, butonly those which, at any given historical moment, its govern-ment, largely thraugh its judiciary, identifies as enfarceablerights, and is willing to protect, which is to say fund, as such.

The American system of criminal justice is expensive, in part,because it is designed both to avoid falsely convicting innacentdefendants and to prevent lethally armed police officers andprison guards from mistreating even those who are declaredguilty. That the casts of these arrangements, indispensable forthe protectian afbasic rights, must be publicly defrayed has the-oretical as well as financial significance. Such costs bring intosharp relief the essential dependency of rights-based individu-alism on state action and social coaperation.

Chapter FiveHow SCARCITY AFFECT8 LIBERTY

JOSHUADESHANEYWASBORNIN 1979. His parents weredivorced a year later and his father, Randy DeShaney, remarriedsoon after he was awarded legal custody of the infant. ln Janu-ary 1982, Randy DeShaney's second wife charged her husbandwith child abuse, alerting the Winnebago County (Wisconsin)Department of Social Services (DSS) that Joshua's father wasbeating the boy. Officials fram DSS interviewed the father, whodenied the charges. ln January 1983, Joshua was admitted to alocal hospital with multiple bruises and abrasions. Suspectingchild abuse, the examining doctor notified DSS. Joshua wasplaced in the temporary custody of the hospital.

Three days later, after conducting an exam, a team of publicofficials concluded that the evidence of abuse did not warrantkeeping J oshua in public custody. A month later, J oshua wasagain treated for injuries. A DSS caseworker made monthlyhome visits during which she observed more head wounds. lnMarch 1984, Randy DeShaney beat his four-year-old son so cru-elly that the boy lapsed into a coma. Emergency surgery dis-closed hemorrhages caused by recurrent blows to the head.Joshua survived but with severe brain damage, and he is expect-ed to spend the rest of his life in an instirution for the severelyretarded.

Joshua's mother brought suit on his behalf against DSS,

claiming that its failure to provide protection against this sick-ening brutality constituted a violation ofJoshua's fundamentalrights under the Constitution. The Supreme Court rejected thisclaim, asserting that although Joshua's case was undoubtedlytragic, he had suffered no constitutional wrong.1

While widely criticized, the DeShaney decision has alsofound powerful defenders within the American legal communi-ty. These defenders divide into two camps. Some echo theCourt's own reasoning, alleging thatJoshua possessed no consti-tutional right to state protection. His constitutional rights werenot violated because such rights safeguard private individuaIsexclusively from public officials; they do not entitle people tostate protection from their fellow citizens. The Constitutionprotects individuaIs from private action only if the governmenthas somehow aurhorized or encouraged or sponsored the action,or was significantly involved in bringing it about. Since thereis no right to affirmative government assistance, and since DSSoversight of child custody cases did not seriously implicate thestate in the abusive behavior, no constiturional protection carneinto play.

Other defenders of this disputed decision take a differentline, arguing more pragmatically and not relying on a sharpdistinction between negative and positive liberties. Instead ofheadlining the Constitution's chilly indifference to Joshua's fate,they argue that American courts, for various reasons, cannoteffectively manage scarceresources. Instead of alleging that peo-pIe have no right to affirmative assistance from the state, orthat no "state action" was involved, they claim that courts arepoorly positioned to make rational decisions about how execu-tive agencies should allocate their budgets and their time. By

attending to the difference between these two quite distinctrationales for the controversial DeShaney decision, we can deep-en our understanding of the issues raised by the budgetary costof rights.

DOES THE CONSTITUTION PROTECT AGAINST

PRIVATELY INFLICTED HARMS?

The first line of reasoning, articulated by the Court itself,ignores the issue of costs. The due process clause, the Courtdeclared, operates as "a limitation on the State's power to act,not as a guarantee of certain minimallevels of safety and secu-rity." The Court added that "its language cannot fairly beextended to impose an affirmative obligation on the State toensure that [people's} interests do not come to harm .... Its pur-pose was to protect the people from the State, not to ensure thatthe State protected them from each other." These few words arerich with implications. Behind this grand pronouncement, infact, lies a comprehensive theory of negative constitutionalism,which implies the following: the Constitution is designed prin-cipally to prevent action by federal authorities. It is a giantrestraining order imposed by citizens upon their government.Not the First and Fourteenth Amendments alone, but the Con-stitution as a whole ties the hands of public officials in order toprotect the population from tyrannical rule. That is not only itsoverriding purpose, but also its almost exclusive purpose.

While constitutional rights hamstring public officials,according to this widely accepted view, they place no constraintswhatsoever on miscreants out of office. As a result, the Consti-turion does not oblige public officials to protect individuaIs fromprivate force and fraud, and the government's failure to prevent

private wrongs is not a form of state action for which officialscould be held judicially accountable.2

But the text of the Constitution hardly settles the issue. True,the due process clause bans the state fram "depriving" people oflife, liberty, or property, but to know whether the state has"deprived" anyone of anything, we need to know what peopleare entitled to have. lf "liberty" includes a right to police pra-tection, then the state deprives people of "liberty" when it failsto provide police protection. lf "liberty" includes freedom framprivate brutality or intrusion, then the state deprives people of"liberty" when it allows people to be subject to private brutali-ty or intrusion. The text is therefore inconclusive. Or supposeit is agreed that the Constitution does not protect people framprivate action; how much follows fram this? Even if the Con-stitution does not pratect people against private acts, it mayimpose a duty on the state to pratect private people against pri-vate intrusions. The fact that the Constitution applies large1yor even exclusively to "the state" does not eliminate this possi-bility.3

lndeed, it is not hard to think of constitutional rights thatoblige state action to pratect individuaIs fram private1y inflict-ed harms. lf a state decided not to protect your praperty againstprivate trespassers-if, in other words, the state repealed, selec-tively or entirely, the laws of trespass-a serious question wouldarise whether the state had "taken" your praperty by failing toprotect you fram private trespassers. To "own" property is tohave a right to exclude others, and if a state will not affirma-tively help you to exclude others, it may well, under existinglaw, have taken away what you own. Thus, the right to privateproperty may entail a right to government pratection via the

trespass laws. Or consider the right to contractualliberty. TheConstitution pratects people against state impairments of con-tractual obligations. lf a state refused to make its courts availableto enforce certain contracts, it would probably be taken to be"impairing" contractual rights. The contracts clause thereforehas a positive dimension too, insofar as it guarantees an affir-mative right to the use of courts (and government resources) toprotect contractual guarantees.

Even those who insist that constitutional rights protect citi-zens exclusively from public authorities-and not at all fromeach other-are likely to admit that the Thirteenth Amendmentis a graphic exception. "Neither slavery nor involuntary servi-tude ... shall exist within the United States" prohibits a form oftraditionally private behavior. ln a way, the ban on slavery can beread as a straightforward ban on private enslavement; it can alsobe read as a directive to the government, ensuring that govern-ment will nor permit involuntary servitude.

Other examples of such an obligation are legion. What ifJones sues Smith to enjoin a threatened assault and then Smithbribes the judge, who accordingly mIes for Smith? ln this case,under existing law,Jones's rights have been violated beeausepub-lie officials failed to proteet him. And that is only the beginning:in many cases, the government's involvement with privateactions has been deemed sufficient to trigger constitutional con-straints, even if it appears that private individuaIs are askingfor state help against other private individuaIs.

Racially restrictive covenants between private buyers andsellers can be challenged under the equal protection clausebecause private contracts are hollow unless the governmentmakes its full coercive powers available to enforce them.4 The

use of those coercivepowers raises a serious constitutional prob-lem, even in the context of an apparently private real estate dea!.The Fourteenth Amendment prohibits a private lawyer fromusing his peremptory chalIenges to eliminate jurors on the basisof race; the involvement of the justice system brings the Con-stitution into play.5Political parties, which belong to civil soci-ety not to the state, are constitutionalIy banned from conductingprimaries in a racialIy discriminatory fashion.6 Because govern-ment is so directly involved in its operation, the First Amend-ment limits the freedom of Amtrak, a nominally privatecorporation, to quash artistic expression at Penn Station.7 TheFourteenth Amendment prohibits racial discrimination by a pri-vate restaurant that rents space in a municipal parking garage.8

Prison authorities can be sued under the Constitution forinjuries inflicted on one prisoner by another if these authoritiesdemonstrated serious indifference to the inmates' welI-being.9

Outside of the constitutional context, an affirmative obliga-tion of government to protect private citizens from each otheris a logical consequence of ordinary rights enforcement. Unionmembers have a right to report the unscrupulous conduct ofunion officials. But this right is effectively meaningless unlessthe government visibly protects whistle-blowers from violentreprisals. Indeed, since the enforcement of rights always creates"losers," the affirmative dury of the government to protect "win-ners" from acts of private retaliation is a necessary correlate ofevery right. A battered wife has a perfectly welI established legalright to report abuse. Bur what if her husband carries a firearm?In that case, her right wilI be a cruel sham unless the city gov-ernment has spent tax dolIars on such protective measures asshelters for battered women. The individual's right to testify is

likewise hollow unless the government takes upon itself the(costly) obligation of protecting witnesses from retaliation. The$23 million that the Department of Justice spent in 1996 onwitness protection programs can be understood in this light.10

To enforce rights consistently, public authorities must also bringthe full force of the law down upon private individuaIs who tryto inflict physical injury upon other private individuaIs simplybecause the latter are exercising their rights. This is yet anotherway in which personalliberty presupposes active governmentperformance-and yet another reason why rights have costs.

Thus, it does not suffice to declare, in a blanket fashion, thatAmerican governments, federal and state, are under no "affir-mative obligation" to protect American citizens. The Constitu-tion was not designed to wash the government's hands; nor isthat an appropriate role for the Supreme Court. It certainlyseems reasonable to say that once welfare officials became awareof the abusive behavior of Joshua's father, they were legallyobliged to do something about it. If such an obligation existed,then the boy's rights were violated by the state's action and inac-tion. At the very least, this sort of ruling cannot be precluded bythe curious claim that the American government is never underany legal obligation to protect American citizens. A SupremeCourt ruling, after alI, is not only the disposition of a particularcase; it aIso broadcasts a message to the public about the basicpurpose and meaning of the American social contract. Evaluatedin this light, the line of reasoning in DeShaney is seriouslyflawed.

The theoretical importance of the case, however, lies in itslessons for the "absoluteness" of rights. Might the SupremeCourt have been arguing more narrowly that Joshua's rights

form such functions and they necessarily operate with inade-quate and biased sources of information. This is why, underAmerican law, Federal Aviation Administration (FAA) agentsgenerally cannot be sued for their unlucky choice of which civil-ian aircraft to inspect in which sequence, for the courts obvi-ously cannot take upon themselves responsibility for planningthe work schedules of government personnel. Faced with a par-ticularly pressing problem, how can a judge measure its urgencycompared to that of other social problems competing for gov-ernmental attention, and about which he knows virtually noth-ing? How can judges, in deciding a single case, take account ofannual ceilings on government spending? Unlike a legislature, acourt is riveted at any one time to a particular case. Because theycannot survey a broad spectrum of conflicting social needs andthen decide how much to allocate to each, judges are institu-tionally obstructed from considering the potentially seriousdistributive consequences of their decisions. And they cannoteasily decide if the state made an error when concluding, beforethe fact, that its limited resources were most effectively devot-ed to cases A, B, and C, rather than to case D-even if it turnsout that case D involved a calamity like Joshua DeShaney's.(Perhaps casesA, B, and C were also disasters.)

While judges may be perfectly competent to spot egregiousviolations of rights and even to invalidate egregious misalloca-tions of resources, they cannot intelligently decide, in most suchcases, when imaginable remedies are better channeled to otherpressing needs. From this perspective, the DeShaney case is mostcharitably understood not as a dramatic pronouncement that theAmerican government owes no protection to American citi-zens, but rather as a sober recognition that rights have costs, that

were not absolute, because they were subject to budget con-straints?

The second, more pragmatic argument does not reject the viewthat Joshua had some sort of right to state protection, but sim-ply takes costs, in the sense of competing goods, into account.11

Although this reasoning was not emphasized in the majorityopinion in DeShaney, it almost certainly influenced the outcomein the case, because it supplies the simplest and surest route tothat outcome. Rights enforcement often does not depend oncourts alone. To remedy past rights violations and deter futurerights violations, courts must rely on willing cooperation fromgovernment agencies, which, in turn, necessarily operate with-in stringent fiscal and other constraints. In the context of socialservices, the problem is clear. To deal with potentially boundlessproblems, departments of social services are endowed withembarrassingly bounded resources, and they must allocate thescant means at their disposal, using their detailed knowledge ofthe situation on the ground, as they judge most effective. Hardbudget constraints imply that some potential victims of childabuse will become aetual victims of child abuse, and the statewill have done little or nothing about it. This is deplorable,but in an imperfect world of limited resources, it is aIsoinevitable. Taking rights seriously means taking scarcity seri-ously.

Courts are not well positioned to oversee the tricky process ofefficient resource allocation conducted, with more or less skill,by executive agencies, nor are they readily able to rectify pastmisallocations. Judges do not have the proper training to per-

funds for the protection of the entire array of legal rights mustbe drawn from the same inevitably limited budgets. In cases ofthis sort, courts should be very hesitant to substitute their ownjudgment for that of executive agencies. Courts cannot easilyparticipate in the job of priority-setting and the optimal distri-bution of scarce resources that the plaintiff in DeShaney calledupon them to undertake.

This is a fairly plausible defense of the general approach inDeShaney, although not a convincing justification of the partic-ular outcome. The evidence of prior knowledge by state author-ities was sufficient to implicate them in the brutal deed, andthe abuse was so grave, and so likely, that the modest expendi-ture that would have been required to prevent it could have beenconstirutionally mandated without creating an imperialisticjudiciary liable to substitute its judgment everywhere for that ofthe executive branch. But the real importance of the case lies inthe opposition it raises between a (false) claim that the Consti-tution creates only negative rights, and a (true) claim that courtsare not in a good position to assess claims that involve resourceallocation.

What the two rival rationales for the decision show is thatthe understanding ofbasic rights, and therefore of the relation ofthe judiciary to the other branches of government, depends ona prior choice either to ignore costs or to take them into account.In its opinion, the Court paid no heed to the question of scarcepublic resources. It could justify the state "inaction" it wished todefend as such only by declaring that a child beaten horriblyafter having been consigned to his cruel father's custody by courtorder and while under the government's custodial supervisionsuffered no violation of his basic rights. The result was one of the

most shockingly brutal opinions of modern Supreme Court his-tory. Shockingly brutal and altogether unnecessary. For a nar-rower and more reasonable justification, based partly on cost,was readily at hand, involving the nonabsolute character ofrights that depend on expenditures. The DeShaney decision thusprovides a powerful incitement to explore more deeply the lim-its that fiscal constraints necessarily impose, and should impose,upon the proper sphere of judicial decision-making.

Rights are familiarly described as inviolable, preemptory, andconclusive. But these are plainly rhetorical flourishes. Nothingthat costs money can be an absolute. No right whose enforce-ment presupposes a selective expenditure of taxpayer contribu-tions can, at the end of the day, be protected unilaterally by thejudiciary without regard to budgetary consequences for whichother branches of government bear the ultimate responsibility.Since protection against private violence is not cheap and nec-essarily draws on scarce resources, the right to such protection,presuming it exists, cannot possibly be uncompromisable orcomplete. The very same is true of more familiar individualrights to protection against government abuse. For instance,my right to compensation for the taking of my property underthe eminent domain power is worthless if the Treasury is emptyand unable to pay. If rights have costs, then the enforcement ofrights will always be sensitive to the taxpayer's interest in savingmoney. Rights will regularly be curtailed when availableresources dry up, just as they will become susceptible to expan-sion whenever public resources expando

Rights are relative, not absolute claims. Attention to cost is

simply another pathway, parallel to more heavily traveled routes,to a better understanding of the qualified nature of all rights,including constitutional rights. It should be a useful supple-ment to more familiar approaches, not least of all because theconventional cost-blind theory of rights has reinforced a wide-spread misunderstanding of their social function or purpose.Attention to the costs of rights reveals the extent to which rightsenforcement, as actually carried out in the United States (andelsewhere), is shot through with trade-offs, including monetarytrade-offs. This does not mean that decisions should be madeby accountants, only that public officialsand democratic citizensmust take budgetary costs into account.

Public finance is an ethical science because it forces us to pro-vide a public accounting for the sacrifices that we, as a commu-nity, decide to make, to explain what we are willing torelinquish in pursuit of our more important aims. The theoryof rights, if it hopes to capture the way a rights regime struc-tures and governs aetual behavior, should take this reality intoaccount. Courts that decide on the enforceability of rights claimsin specific cases will also reason more intelligently and trans-parently if they candidly acknowledge the way costs affect thescope, intensity, and consistency of rights enforcement. Andlegal theory would be more realistic if it examined openly thecompetition for scarce resources that necessarily goes on amongdiverse basic rights and also between basic rights and othersocial values.

Chapter SixHow RIGHT8 DIFFER FROM INTERE8T8

RIGHTSARESOMETIMESDESCRIBEDASMORALLYCHARGEDandalmost irrebuttable claims, to be sharply distinguished fromeveryday assertions of interest. Whereas interests are always amatter of more or less, thereby implying trade-offs and com-promises, rights are a matter of principle, demanding a kind ofclinched, unblinking intransigence. At least that is the waymany legal theorists and human-rights advocates tend to speak.A similar viewpoint has been memorably articulated by RonaldDworkin-a leading American theorist of rights-who, in anevocative phrase, portrays rights as "trumps" that can be playedin court against government officials.1

This metaphor captures an important aspect of Americanlegal reality. Although no right can flatly override all other con-siderations, rights can nevertheless qualify as "absolute" in alimited sense. When basic rights are at stake, the governmentcannot casually invoke mundane considerations as justificationfor non-enforcement. Legal theorists are only following popularpreconceptions and ordinary language, then, when they con-ceptualize rights as claims qualitatively distinct from mereassertions of interest. Extenuating circumstances (such as exor-bitant costs or scarce administrative capacities) may easilyexcuse the government from protecting a mere interest. Butthese same considerations will excuse the failure to protect a

right only under special and highly restricted conditions.Dworkin has frequently acknowledged the need to balance

one right against another and also the occasional necessity ofcurtailing otherwise important rights in the name of compet-ing social values of sufficient urgency. Rights cannot be over-ridden by invoking general utility, he writes, but "a state may bejustified in overriding or limiting rights on other grounds" and"the most important ... of these other grounds invokes thenotion of competing rights that would be jeopardized if theright in question were not limited."2 Freedom of the press mayperhaps be restricted by the right to privacy or freedom frommalicious libel. Contrariwise, freedom of the press can beexpanded by contracting the right to sue for libel. The right toengage in colIective bargaining requires the legal abolition ofthe right to make yelIow-dog contracts, whereby workers once"voluntarily" agreed not to join a union. And so forth.

The curtailing of civil liberties to combat terrorism isunquestionably lamentable, but such trade-offs have been madein the past and wilI no doubt be made again. Although it shouldhave done so, "strict scrutiny" did not in fact prevent the Courtfrom giving its blessing to the flagrantly discriminatory intern-ment ofJapanese-Americans in World War II.3 And there is lit-tle guarantee that similar infringements wilI not occur whenpertinent reasons arise that again seem convincing to judges.

The need for swift governmental action is a commonlyaccepted rationale for overriding important rights. For exam-pIe, property can be seized without prior notice (an action thatwould ordinarily violate due process of law) if a shipment ofpharmaceuticals has been dangerously adulterated or if a vehi-ele transporting contraband is about to escape the grasp of the

police. Freedom of information can be restricted, or defined ina limited way, on the grounds not only of national security butalso to protect sensitive data about government personnel.Under emergency conditions, freedom of movement can belegalIy curtailed to prevent the spread ofhighly contagious fataldiseases. And the right to ride a motorcyele without a helmetcan be abolished, partly because of the medical and rehabilita-tion costs such activity imposes on the community as a whole.

A large part of lawyering involves discovering judicialIyacceptable excuses for actions or omissions that would other-wise be deemed unlawful or unacceptable. As the category"excusable homicide" suggests, even the most socialIyunaccept-able behavior can be justified, as a matter of law, in special cir-cumstances (such as self-defense). Mitigating factors can beinvoked to justify governmental as welI as private action. Whatthe rights-as-trumps view implies is only that a governmentthat curtails civilliberties must persuasively invoke importantpublic interests. To violate central constitutional values, thestate should have even weightier values on its side.

But while the rights-as-trumps view is perfectly at homewith the notion that rights occasionalIy elash with other rightsand with other public interests as welI, so that judicial balancingis often reguired, it neglects the idea that rights cannot beabsolute because their enforcement depends on the timely deliv-ery of limited public money to the agents charged with enforc-ing them. Some conflicts among rights stem from a commondependency of alI rights on limited budgetary outlays. Financiallimits alone exclude the possibility of all basic rights beingenforced maximalIy at the same time. Rights invariably demandor imply trade-offs of a financial sort. And expenditure patterns

will to some extent be determined politically. Attending to costshelps explain why property rights clash with property rights,why the local police department cannot protect Jones's dilapi-dated home adequately if it has already committed its sole stake-out team to guard Smith's luxurious estate.

To be sure, some basic rights, such as freedom of speech orthe right to vote, may not be bought and sold on the open mar-ket; the ban on trading poli ti cal rights is designed partly toensure that political power is not concentrated in any individ-ual or group. So rights are not commodities in a simple sense.But when the price soars, rights enforcement necessarilybecomes more selective. We can obtain costly goods and servicesonly by relinquishing something else of value. The world ofvalue is complex and the world of available possibilities is larg-er than the world of co-available possibilities. There is nothingcynical or degrading about admitting as much or acknowledg-ing that this pattem applies to basic rights as well as to ordi-nary commodities. Of course, it does not follow that rights mustbe tossed along with everything else into a gigantic cost-bene-fit calculating machine created and operated by economists.

Although it is theoretically misleading to portray rights asabsolutes, such a description can be defended as psychologicallyand rhetorically useful. Civillibertarians, like politicians, used-car salesmen, and advertising executives, are keenly aware thatexaggeration has a mnemonic function, and they know by expe-rience that their uncompromising phraseology often pays off.Hyperbole can draw special attention to what they see as cryingneeds, thereby increasing the chance that citizens and represen-tatives will treat certain interests with exceptional sensitivityand seriousness.Perhaps a (misleading) emphasis on the absolute

character of free speech will stiffen the spine of citizens and rep-resentatives when the pressure for (unjustified) censorship isespecially great. But overstatement can create problems too, andan insistence that rights are absolute may lead to the over-pro-tection of some rights to the detriment of others that have aneven greater claim. And since political attention, too, is a scarceresource, the more time officials lavish on one claim, the lesstime they have for another.

Defeasibility is an inescapable characteristic of all legalrights, including constitutional rights. Another important rea-son, apart from costs, why legal rights must always be subject tocurtailment or limitation is also worth revisiting: rights are, inreality, legal powers that can be exercised over others. Powerscan always be misused. Rights must be subject to restrictionsin order to prevent their exploitation for wrongful ends. Forinstance, the right to self-defense is well established in Ameri-can law, but it is justifiable only because, or to the extent that,courts keep an eye out for its abuse. You cannot claim to haveacted in self-defense, for example, if you were not seriouslyendangered. Similarly, the rights of a stockholder to sue a com-pany's management can be used to harass and eventually toobtain a handsome bribe for dropping the case. The possibilityof abusive suits must be taken into account by legislators andjudges who determine the conditions under which the right tosue fails. The American legal system makes continuous remedi-aI and compensatory adjustments to handle the unintended sideeffects that necessarily occur whenever the government handsindividuaIs the discretionary right to wield the public power,to dip into the public purse.

But-it will be asked-are not some human interests intrin-

sic and not merely instrumental goods? While some things arevaluable merely as means, are not other things good in them-selves, because of the good things that they, on balance, bringinto being? True, freedom of speech serves to improve the quali-ty of public decision-making and to reduce the leveI of govern-ment corruption. But is it not alsovalued for its own sake, simplybecausecensorship is an indignity, an insult to human autonomy?The answer is yes: some interests do have intrinsic value. Buteven intrinsic goods have costs; they cannot exist without pub-lic effort and a substantial expenditure of resources. Protectingrights that are valued for their own sake will entail dangers,downsides, unintended side effects, opportunity costs, and othertroubles, for there are fewgains without losses.Thus, the right toa hearing serves dignitary functions and is not designed just toensure accurate fact-finding. But if it is very expensive to holdelaborate hearings, government may not be required to hold elab-orate hearings. And the visitation rights of grandparents on theside of the noncustodial parent may seem "sacred" in a way, andcertainly such rights are not of merely instrumental value; butsuch rights are regularly obliterated in American jurisdictionsin casesof adoption, out of concern for the countervailing inter-ests of the child.

Indeed, the rights of Americans are constantly expanding andconrracting under the impact of legislative and adjudicativeaction. Rights are interests that, politically and judicially, arehighly valued at that moment; but they are not merely that.Within American legal culture, rights are interests of a specialkind. Attention to the cost of rights does not render meaninglessthe fundamental liberal distinction between interests and rights."Rights talk" is essential because it raises the threshold of justi-

fication for interfering with interests deemed especially impor-tanto

When rights are at issue, some arguments are not merelyinsufficiently weighty but altogether inadmissible. This is truein private law as well as constitutionallaw. The debtor cannotlegally refuse to pay his debt because his creditor is an apostate,although he can refuse to pay, under certain conditions, if theproduct he received proves defective. Analogously, our system ofreligious liberty does not allow government to suppress a minor-ity's religious practices because the minority's god is not the trueGod, although it can ban the consumption of hallucinogens inspecific contexts. Our system of political liberty does notdeprive people of the vote because incumbents fear how peoplewill vote. Our system of free expression does not allow govern-ment to regulate ideas simply because officials or citizens thinkthose ideas are wrong or dangerous, but it can regulate themfor other reasons. And once we identify the category of permis-sible and impermissible reasons for action in any particular sys-tem, we are well on our way toward understanding what rights,as interests of a special type, mean in practice.

For example, the Winnebago County DSS could not justifyits failure to protect a child from his father's brutality by invok-ing racial or religious considerations. It could not say, "We pro-tect white children but not black children." Whether or notthe Constitution obliges the government to protect individuaIsfrom private harms, its use of such a justification would havebeen, without any question, absolutely forbidden. Similarly, acourt cannot deny child custody to a divorced white mother sim-ply because she is now cohabiting with a black mano That jus-tification for state action is blocked. America's rights regime is

"absolutist" in this sense: it rules out certain reasons uncondi-tionally while proscribing actions and inactions only condition-ally.

Formulated differently, rights are regulatory, not prohibitive.American courts do not ordinarily defend constitutional rightssimply by barring government actions as unlawful. What courtsdo, rather, is to require that the leveI or branch of governmentinvolved provide legitimate and substantial grounds for restric-tions imposed and actions undertaken or omitted. This is oneway that the American judiciary contributes to democraticaccountability-compelIing legislative and executive authori-ties, whenever they infringe upon the interests currently denom-inated as rights, publicly to articulate the legitimacy andimportance of the goals they are pursuing and the appropriate-ness of the means they select. Rights rule off-limits certain jus-tifications for action or inaction.4

To avoid misinterpreting rights as un-overrideable vetoesblocking the path of policy, we could choose to emphasize theperennial need to balance among conflicting interests. But the"balancing" metaphor is just as misleading as the vague notionthat rights are absolutes. If alI rival claims must be weighedagainst one another, then claims of right are not essentialIy dif-ferent from claims of interest. But this is a simplification, forwhen a right is in play, government cannot justify non-enforce-ment simply by claiming that some discernible interests lie onthe other side.

This is a familiar phenomenon in daily life. If a friend telIsyou something in confidence, you may breach the confidence ifdoing so is necessary to save that friend's life; you may not blabsimply because it is fun to gossip about your friend's problems.

If a friend is getting married, you may regretfully decide not toattend the wedding, perhaps, if your child is sick and you cannotfind substitute care. But you may not decline simply becausethere is a swell sitcom on television at the hour of the ceremo-ny. Our ordinary decision-making is routinely based on theexclusion of certain reasons as utterly irrelevant, rather thanmerely unimportant. So ourside the law, decision-making istouched by "absoluteness" in this sense and is not merely a mat-ter of balancing.

The same is true of decisions made in the legal sphere. Thelaw's elevation of a certain subset of interests into legalIyenforceable rights usualIy deletes, for the time being, certainjustifications from the menu of acceptable reasons for interferingwith them. To the extent that certain justificatians are inad-missible, the right does indeed work, for restricted purposes, inabsolutist fashion. But because more persuasive justificationsalways remain admissible, rights never qualify as uncompromis-able when the would-be rights violator comes up with legiti-mate and sufficiently weighty grounds for neglecting them.Scarcity of resources is a legitimate, however regrettable, reasonfor failure to protect rights. The two rationales for DeShaney,even though neither is convincing in the end, provide a usefulillustration of this powerful truth.

AMONGCONSTITUTIONALRIGHTS,freedom of speech is one of themost precious. It is worth protecting even, or rather especialIy,in extreme circumstances, for free speech makes it much morelikely that the violation of other rights will be reported. Along-side its many psychological, moral, artistic, religious, and eco-nomic functions, liberty af expression is an essential

precondition for democratic self-government. lt helps ensurepolitical accountability, mop up governmental corruption, draginto the daylight abuses of power, and imprave the quality ofpolicy-making by enlisting suggestions and criticisms from spe-cialists out of office as welI as fram the public at large. ln less-developed countries, freedom of speech can even help preventfamines.5 This is why freedom of expression and communicationis sometimes described as the liberty on which alI other liber-ties dependo No surprise that free speech has a special place inAmerican legal culture and has been frequently styled as unin-fringeable.

Nevertheless, like other forms of public behavior-whichalways entails the risk of mutual harm among private individu-aIs and graups-speech is regulated every day, and with goodreason. A right is a power, and any power can be misused. Amer-icans would certainly be worse off if the U. S. government dealtwith free speech as if it were untouchable. There are (reason-able) laws on the books restricting perjury, attempted bribery,price-fixing, fraudulent and misleading commercial advertising,child pornography, conspiracy, threats to assassinate the presi-dent, and many other forms of speech. Not even free-speechpurists favor abolishing alI such restrictions in the name of indi-vidual freedom and autonomy. ln practice, doctrinaire extrem-ists in this area are merely trying to shift, usually relativelyslightly, the line that political and judicial authorities havedrawn when regulating communication and expression. Thosewho claim that they are "free-speech absolutists" do not realIymean it. Some constraints on speech are merely common sense,even in a nation strangly committed to freedom of expression.We would be less free if freedom of speech were treated as a pre-

emptory claim immune to regulation, even when other impor-tant interests or rights are in jeopardy.

But what principIes help us separate constitutionalIy pro-tected speech fram constitutionalIy unprotected speech? Consti-tutional lawyers have been extraordinarily creative inelaborating such principIes. But in the United States, wheneverthe right to free speech is widely perceived to have socialIy unac-ceptable consequences (including the undesirable social costs ofperjury and the other ilIicit speech acts listed above), this rightis abridged without much embarrassment. Freedom of expres-sion can and will be compramised when the side effects of theunlimited exercise of this right are perceived to be exceptional-ly harmful. Some such infringements are moralIy dismaying, butothers are not, and in any case they are politicalIy unavoidable.Freedom of speech will be intruded on when, in the eyes of thejudiciary, the reasons for doing so have sufficient legitimacyand weight, and less drastic means are not readily (which maymean inexpensively) available. Conversely, a constitutional rightprevails when publicly and judicialIy acceptable justificationsfor intruding upon it cannot be found.

The contraversial issue of flag burning illustrates the point.The government cannot regulate flag burning on the groundthat public officials hate protesters, or believe that this is anespecialIy heinous and unpatriotic act, or fear that many peoplewill be upset by an expression of outrage against the symbol ofthe country's nationhood. But government can regulate flagburning on the neutral grounds of protecting private propertyfram destruction. Freedom of speech is classified as a preciousright rather than an ordinary interest because of the sharplyrestricted conditions under which it can be compromised.

At the time when the First Amendment was adopted, rela-tively few of its framers had a particularly radical idea of freespeech. Most of them agreed that orderly government was aninherently fragile and vulnerable creation that must be protect-ed, in certain circumstances, from the potentialIy corrosivepower of words. Certainly the framers did not intend to ban reg-ulation of anything that could come from a mouth or a penoThere is much dispute about what the framers particularlybelieved, but no one can deny that the cutrent conception ofthe free speech principIe is far broader than the understandingheld by its authors.6 The meaning of free speech in the UnitedStates began to evolve in the 1790s and has been developing eversince. Its scope, at any given time, has always depended uponchanging interpretations by a changing Court. Today, spendingmoney to elect a candidate is a form of constitutionalIy protect-ed free speech, whereas burning one's draft card is notoThere isnothing inevitable about this dispensation; right or wrong, it isliteralIy a matter of interpretation.

Today, the government generalIy may not punish speechbecause people are offended by the ideas that it contains. SomeindividuaIs and groups may be grievously offended by the ideasexpressed in a communist tract. But even if the moral injury islarge-even if people become suicidalIy depressed from pro-longed exposure to offensive ideas-offense ordinarily does notcount as a legitimate basis for public action, at least not in theUnited States. ln the context of speech, outrage at the content ofexpressed ideas is flatly excluded as a ground for governmentalregulation. Whatever the consequences, offense is usualIy anunacceptable reason for restricting speech. Even the controver-sial restrictions on sexual harassment in the workplace are jus-

tified as a way of preventing employment discrimination, notoffense.

Freedom of speech implies far more than a right againstdirect censorship of disfavored opinions. Every tyrant knowsthat he can effectively stifle annoying public protests, even with-out explicitly banning expression as such, simply by cordoningoff arenas where demonstrations and ral1ies are likely to bestaged. Hence the right to free speech, protected under Ameri-can law, includes a right of access to public forums and, as alogical consequence, a right to ensure that certain publicplaces-such as public streets and parks-are kept open andavailable for expressive activity.

ln this particular way, freedom of speech does not simplyrequire that the government adopt a hands-off approach, formaintaining open public spaces will ordinarily entail nontrivialpublic expenses, presupposing a degree of compulsory taxingand spending. The right to set up a soapbox and enter a publiclysubsidized space where listeners can gather and supportersparade imposes costs on some citizens for the benefit of others.lndeed, the Supreme Court has strongly suggested that the gov-ernment cannot charge the immediate users of freedom ofspeech, such as protesters in a public park, for the expenses forspeech-related activities.7 AlI taxpayers, including those who arenot especial1y free-speaking or interested in protest, must pay.Strollers do not need to purchase tickets to walk around in mostpublic parks. Similarly, legal rights are subsidized by taxeslevied on the community at large, not by fees paid by the indi-viduaIs who happen to be exercising them at the momentoBecause this is a necessary,not an accidental arrangement, redis-tribution in the field of rights protection seems to be inevitable.

The implications may be profound, for in stark contrast to itsreasoning in the DeShaney case, the Court has indicated that gov-ernment subsidies, in the free speech context, may welI be con-stitutionally required. How could the Court distinguish thecases? Perhaps what it aims to say is that freedom of speech,properly understood, means that publicly subsidized expressivearenas must be assigned a high budgetary priority no matterwhat other claims are competing for community resources. Thatmay be implied by classifying freedom of speech as a right ratherthan merely an interest of American citizens. But if this is theCourt's point, its cost-free style of argumentation prevents itfrom formulating its conclusion in terms clear enough to inviteconstructive criticism, or from elucidating its deeper assump-tions and spelIing out the wider implications of its approach.

Chapter SevenENFORCING RIGHTS MEANS

DISTRIBUTING RESOURCES

THE RIGHTTOVOTEis no more costless than any other right.Putting aside alI private expenditures for political campaigns,the 1996 elections probably cost the American taxpayer some-where between $300 million and $400 million.1 Of course,accurate nationwide statistics are difficult to come by. This ispartly because almost all of the public costs of running elec-tions are borne by states and municipalities. Federal spendingis minimal. State taxpayers pay the costs of printing ballots, reg-istration materiaIs, and voter guides, while municipal taxpay-ers defray the expenses of staffing and maintaining polIingstations. Voting booths must be kept in working order, bans onadvertising near the polIing stations must be enforced, and votefraud must be deterred and detected. (Running a mayoral elec-tion, it should be noted, costs a city no less than running a sen-atorial or presidential election. Once the initial investment inholding an election has been made, the additional costs ofadding more candidates and balIot initiatives is minima!.)

As the legal philosopher Hans Kelsen once remarked, "to thecitizen's right of vote corresponds the duty of the election offi-cer.,,2And that election officer, he might have added, wilI ordi-narily be paid. Polling stations must be opened in variouslocations, geographically distributed to give approximatelyequal access to all voters. Under certain conditions, states are

constitutionally obliged to make absentee voting proceduresavailable to inmates awaiting trial or convicted of misde-meanors.3 And local and state governments must use general taxrevenues to put into place all the preconditions for fair elections,since they cannot condition the right to vote on the payment ofan individualized poll tax or user fee. Such a governmentallymanaged subsidy is necessarily redistributive.

Perhaps because the costs of elections vary so greatly fromcity to city, state officials seem strangely reluctant to engage ina thorough accounting. Available figures are nonetheless sug-gestive. In Massachusetts, a state law passed prior to the 1996presidential elections mandated longer hours for polling sta-tions. Implementing this tiny amendment to the law cost Mass-achusetts taxpayers $800,000.4 In California, where a srudy ofelectoral expenses was commissioned by the state government,the cost of any statewide election (whether presidential, senato-rial, gubernatorial, etc.) runs around $45-50 million. This isalso true for any referendum requiring a separate ballot. Printingand mailing costs for voter guides alone, including those print-ed in Spanish as well as English, can range from $3 million to$12 million. In California, the cost per voter is estimated torun from $2 to $5, depending on ea"Chmunicipality's voting sys-tem.s

Today, the right to vote would be unconstitutionallyinfringed if courts were not permitted to outlaw impermissibleracial gerrymandering. The money for such remedial activitiesand, more generally, for organizing and carrying out free and fairelections is extracted from both willing and unwilling taxpayers,from voters and nonvoters alike. Voting would be a very differ-ent act, would bear a very different social meaning, if voters

alone had to pay a fee to defray the public costs of conductingan election, instead of all taxpayers having to pay. That a modestform of compulsory redistribution is involved is obviously notan argument against the right to vote. Indeed, we are so usedto the taxing and spending presupposed by representative gov-ernment that we simply take it for granted.

If both the right to free speech and the right to vote requirepublic expenditures, presuppose redistributive decisions, and arerelative rather than absolute goods, the same is likely to be trueof other rights as well. The Fourth Amendment confers protec-tion against unreasonable searches and seizures. It obliges thegovernment to perform a service that can, under some condi-tions, be extremely expensive-namely, to monitor policebehavior accurately and to deter misbehavior by a fair but alsoswift and reliable system of punishment. And if citizens are tohold police officers accountable for their actions, they must alsofinance the procedural protections that accused officers, too,deserve. As a practical matter, resources extracted from the tax-payer will have to be targeted to ensure that lethally armedpolice officers neither behave unlawfully nor are falsely con-victed of behaving unlawfully. Private liberty depends on thequality of public instirutions.

THOSEWHOACCLAIM RIGHTS as trumps sometimes also construethem as barriers defending the most cherished individual inter-ests against a repressive or meddlesome community. Individu-aIs invoke their rights to fend off the majority. Rights protectindividuaIs from mob rule. There is some truth to this antima-joritarian idea. We are all familiar with the lone dissident fight-ing for his freedom to engage in nonconformist speech and the

religious outsider seeking to practice her religion despite major-ity bigotry and intolerance. But are rights adeguately describedas claims that the solitary individual raises against the commu-nity in which he or she was born and bred? The idea that rightsare erected against the community is obviously toa simple, forrights are inrerests on which we, as a community, have bestowedspecial protection, usually because they touch upon "the publicinterest"-that is, because they involve either the inrerests of thecollectivityas a whole or the fair treatment of various membersof the community. By recognizing, protecting, and financingrights, the collectivity fosters what are widely construed to bethe deeper interests of its members.

Property rights encourage individuaIs to improve their prop-erty by allowing owners to capture the benefits of improvemenr.This arrangement is a social one created for social purposes; ithas a perceptibly positive effect on a nation's real estate andcapital stock. Other seemingly individual rights are likewisecollectively conferred, designed, reshaped, inrerpreted, adjusted,and enforced to promote what are widely seen as collective inter-ests. They are protected by public institutions, including legis-latures and courts, for collective reasons. Admittedly, andimportantly, rights may operate in some sense "against" thecolIectivity once they are vested in individuaIs. Governmentmay not confiscate property simply because a majority wants todo so. But even in such cases, rights are guaranreed in the firstinstance both by and for the collectivity. Since it has no existenceapart from the individuaIs who compose it, a collectivity candefine, confer, inrerpret, and protect rights only if it is politi-cally well organized and only if it can act in a coherent mannerthrough the instrumentality of an accountable government.

Arguing that rights serve colIective purposes, the philoso-pher Joseph Raz remarks, "If I were to choose between living ina society which enjoys freedom of expression, but not having theright myself, or enjoying the right in a society which does nothave it, I would have no hesitation in judging that my own per-sonal interest is better served by the first option.,,6 The right tofree expression benefits individuaIs largely because of its socialconseguences: diminishing the risk of ill-considered governmentaction, promoting scienrific progress, encouraging the dissemi-nation of knowledge, and ensuring that governmenr oppressionor abuse will sometimes be met by clamorous protesto Individ-uaIs in a society without free speech suffer most from what thelack of freedom does to that society. So, too, are both individualand social welfare promoted by the rights to a fair trial, free-dom from unreasonable searches and seizures, and freedom ofreligion. In alI these cases, the relevanr right helps secure goodsfor many people beyond those who personally assert it at themomenr. This is one reason why most rights are funded out ofgeneral revenues rather than by narrowly targeted user fees.