Segment from Balancing Acts

Net Positive

Political scientist Emily Zackin lays out the history of all those “positive rights” that are hidden in state rather than federal law, but which Americans take for granted.

00:00:00 / 00:00:00
View Transcript

ED: If you’re just joining us, this is BackStory, and we’re talking today about the history of rights claims in America. Now, as we’ve just been discussing, we usually think about our rights as things the government can’t take away from us. These are often referred to as negative rights.

BRIAN: But when we consider the protections laid out in the state constitutions, we get a very different version of rights, because those documents are chock full of positive rights– things like the right to an eight hour day, and a minimum wage. One of the first was a right to free education. It showed up in the Massachusetts constitution, all the way back in 1780.

That clause would provide the model for the common school movement of the 19th century. That was the northern-based movement that argued that citizens of all kinds were entitled to a good public education. I sat down to talk about positive rights with historian Emily Zackin, who has written about the rights we tend to overlook.

EMILY ZACKIN: So very early, before we even have a Bill of Rights, saying the government should stay away– no searching our houses, no quartering troops in our homes– state constitutions are saying things like, we have to cherish education. We have to support schools and towns.

BRIAN: As the common school movement spread across the nation, did it cite Massachusetts’ constitutional provision?

EMILY ZACKIN: It did, but they innovated. They added many different kinds of provisions to state constitutions, to deal with the particular problems of the state that the movement was in. So actually, the Massachusetts provision was copied into a few early constitutions but constitutional provisions about education change over the course of the 19th century. So they begin to include provisions about taxation. So in Pennsylvania, in the late 19th century, the common school movement gets into the new state constitution– a provision that says, the legislature will spend a million dollars annually on education.

BRIAN: And that dollar amount is written right into the–

EMILY ZACKIN: Right into the Constitution. And another reason people think these provisions aren’t important is that they’re detailed like that. They associate that sort of number, dollar amount stuff with statutes. And what I say is, there was a real problem here, that needed to be solved. Legislatures did not want to raise these taxes. They didn’t want to spend this money. And people looked at constitutions as solutions to that problem. They said, well, if we’re going to have trouble getting money from the legislature, we’re just going to have to put in the Constitution a mandate to spend this much money every year.

BRIAN: Do you think the founders imagined the very role for states that you’re describing? In other words, they did focus on the Bill of Rights, when they got around to amending the Constitution, knowing that– when it came to positive rights– the states would answer the bill.

EMILY ZACKIN: I do think that. I think it’s actually even– I would reverse it. So I think rather than thinking, well, we’ll set up the federal government this way, and then states can do the other stuff. States were already doing that stuff–

BRIAN: They were there first, after all.

EMILY ZACKIN: They were there first, right. And, I mean, states were governing. And so the Bill of Rights is a response to a fear about adding an additional federal government, on top of that. And that’s why it says, this federal government better stay really small. But we’ve gotten confused, since. Especially post- New Deal, in the 20th century.

When we look at the Bill of Rights, people think, oh, it must be that Americans really want government– all government– to stay very small. Look at all these provisions about keeping government away from us. And I say, no, no, no. Read that in the context of already– there are already governments existing, governing, when that’s written. That’s just about the federal government.

BRIAN: Right. I think most people say, oh, the US Constitution, the Bill of Rights. I’ve heard of that. That’s kind of the major league of rights.

But you’re saying that, especially in the 19th century and at the founding, it was the state constitutions that called the shots. Those were, in many ways, the major leagues. And this US Constitution is added on alongside it.

EMILY ZACKIN: Yeah– to understand the restraints, the parts of the Bill of Rights that say, government should do less. To understand that is really saying the federal government should do less, not, we don’t want any government. Because we had these governments.

BRIAN: Emily Zackin is a political scientist at the Johns Hopkins University, and author of Looking for Rights in All the Wrong Places.

PETER: It’s time for another break. When we get back, a Hollywood mogul goes to the mat for his right to work.

BRIAN: You’re listening to BackStory. We’ll be back in a minute.