Positive VS. Negative Rights: The Fatal Flaw of American Constitutional Law and Privacy

The American Constitution as an Outlier

Last semester, I had the privilege of studying abroad in Italy, and taking a comparative Constitutionalism class. The opportunity to study the American Constitution outside of the constraints of our perspective offered a particular insight into the formation of the American Constitution and its glaring drawbacks -- namely, that it was drafted largely before the formation of "positive rights."

In Europe, the study of Constitutional Rights can be broadly broken down into two eras -- the era of negative rights and the era of positive rights. The era of negative rights is strongly associated with the classical liberal era, and thus, negative rights reflect the largely libertarian leanings of those times. Negative rights are the rights to be largely free of state interference or coercion when doing certain activities, most famously in the United States, either speaking or exercising one's religion. Positive rights, on the other hand, reflect a more modern understanding of rights that began to evolve in the late 19th and early 20th centuries, and reached their Constitutional peak following WWII. Positive rights are affirmative guarantees from the government that it will provide something, usually medicine or education. Following WWII, many European states drafted Constitutions that guaranteed these positive rights, including ephemeral provisions that guaranteed the right to "dignity," whatever that means. The EU itself in turn adopted many of these positive rights in its seminal founding document, the Charter of Fundamental Rights of the European Union.

The Positive and Negative Rights Distinction in the Context of Privacy

The distinctions between American and European Constitutional approaches to information privacy are vast, not least because of the times they were drafted. The Charter of Fundamental Rights of the European Union is a 21st century document and can thus explicitly can make reference to protecting information privacy. Article 8 of the CFREU famously has a provision stating "1. Everyone has the right to the protection of personal data concerning him or her." However, looking at the strictly technological advantages of the CRFEU misses the larger context of the kinds of rights embodied in the CFREU as opposed to the American Constitution. Because the Constitution was drafted and has been amended solely using negative rights language, the protection of personal data can only be inferred from protection against general government interference. This leads to a host of problems both in the areas of third-party data collection and governmental spying. What's more, the classical liberal mindset, limiting an individual to only negative rights, is so ingrained in American society it permeates not only the Constitutional process, but the lawmaking process and the public's attitude towards data privacy as well. This compounds the lack of both governmental and nongovernmental actors. I will address this latter argument first, because it informs the other two as well.

Stuck in the 18th Century

On the Federal level, the American posture towards all rights, not merely privacy ones, remains firmly rooted in the 18th century. On the oft chance that positive rights do exist in America, they are not explicit, such as the right to abortion, they are not explicit and only inferred from the "penumbras" of the Constitution. This further extends to the legislative process - not only is Congress reticent to create positive rights, often legislative creations of positive rights are looked upon with skepticism, because Congress has no power to create legislative rights absent limited clauses, most notably the interstate commerce and taxation clause. Thus, the creation of a positive right to healthcare was limited by the Supreme Court to the imposition of a tax, and that itself is controversial. However, there is one area where Congress' power to create positive rights is uncontroversial -- the employee employer relationship.

The most infamous era in American legal history, the Lochner era, presupposed that Congress' power over positive rights was functionally nonexistent and subservient to the individual right to freedom of contract. Luckily, however, this attitude was overturned by the "switch in time that saved the nine" which upheld that Congress indeed had the power to create positive rights (at least in the interstate commerce context). There are interesting parallels with data privacy, because one of the main arguments against Congressional regulation of third-party data privacy is that individuals should have the right to sell their data to the companies. Of course, as with the same argument in the employment context, this ignores the massive power imbalance between the two parties and is not worth addressing seriously. However, the counterfactual offers an interesting perspective -- why not approach data privacy in the same way we approach minimum wage law, by creating a private right of action against individuals, corporations and the government, for privacy violations.

A Private Right of Action

California has already created a private right of action by consumers that have suffered a data breach. I would argue, however, that the California

• Approaching the problem of third party data from the same place as employer employee solves that problem

• How to solve government data collection problem? Need to revise Constitution to allow positive right of action against both private individuals and the government.