Positive and Negative Constitutional Rights

Abstract

In November, 1980, in Joliet, Illinois, a car turned over and caught fire. A policeman arrived and began directing traffic away from the scene. He made no effort to determine whether or not there were people in the car. There were, and they burned to death. The city was sued for damages on the ground that, by failing to save the occupants, the policeman and therefore the city had deprived them of life or liberty without due process of law. Relief was denied. Our Constitution, wrote Judge Posner, a charter of negative rather than liberties. . . . The men who wrote the Bill of Rights were not concerned that Government might do too little for the people but that it might do too much to them. The Fourteenth Amendment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans from oppression by state government, not to secure them basic governmental services.1 Thus the city had no constitutional duty to help the accident victims, and thus its failure to act deprived them of neither liberty nor life.2 The question is important. If government has an affirmative duty to help accident victims, it may have other duties as well. It may have a duty to protect people against hostile acts of third parties such as theft and murder. It may also have a duty to protect them from hunger and disease. Judge Posner's broad denial of the existence of positive liberties seems to reject any such obligation. He is telling us, among other things, that there is no constitutional right to welfare benefits. The language of the constitutional provision seems to support Judge Posner's conclusion. Like so many of the provisions of the