Besides the fact that I don’t think that education should be
considered a right, the problems with most state educational amendments
in constitutions, including NC’s amendment, is the way the amendments
are drafted–they are drafted as positive rights, not negative rights.
A positive right is a right that requires the government to ensure that an individual enjoys the right.
A negative right is a right that prohibits the government from keeping individuals from enjoying a right.
NC Constitution, Article I, Section 15. Education.
The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.
Instead of
simply saying that all citizens have a right to an education, and the
government can’t abridge that right, NC’s amendment requires that the
government “guard and maintain that right.” Ironically, without
getting into a detailed legal analysis, even the guard and maintain
language is weak when it comes to requring any positive action on
behalf of the government to ensure an education. It also is
interesting (or amusing) that people have a “right to the
privilege”–which one is it, a right or a privilege? The
amendment’s language is worth analyzing.
In the U.S. Constitution, most rights clearly are negative rights. We
have the right to free speech, but the government doesn’t have an
obligation to ensure that we have the means or forum to speak. We
have the right to own guns (despite what some may say), but the
government has no obligation to buy us guns.
In my opinion, this is a key distinction in the education
“rights” context and in other areas. Leftists think that, at
least for the rights they like, the government has to ensure that all
rights are enjoyed. Citizens don’t simply have a right to vote,
but the government needs to take steps to ensure that citizens do vote
and we have to make it easier and easier so they can vote. The
conservative/libertarian position would focus on prohibiting the
government from keeping people from being able to exercise their right
to vote. One other example: While conservatives and libertarians
believe in equal opportunity, leftists believe in equal outcomes.
This
last line relates to Roy’s initial post that discusses CEO’s
mission–their mission talks about ensuring that rights are enjoyed,
not on ensuring that families have an equal opportunity to enjoy all
educational and economical options:
“Our mission is to be agents
for equity and quality in education, and to be advocates for the rights
of African American and other minority families to access all
educational and economical options.”
These distinctions and
perceptions on how we examine rights are critical. How do you
require more government? Create more positive rights. For
example, a right to health care means the government has to provide you
health care. The list could go on–the right to clean air, the
right to work, the right to a living wage, the right to drive, etc.
