15 - Proportionality and positive constitutional rights

Summary

The nature of positive constitutional rights

The classic approach to constitutional rights contends that their role – as well as their original function – is to protect the individual from acts of government. They were originally intended to prevent the government from harming individuals and therefore those rights were dubbed “negative” or rights of “inaction” (status negativus). Therefore, the textual expression of these rights has often included such terms as “there shall be no limitation of …”, “Congress shall make no law …”, and everyone has the right “not to be deprived of freedom arbitrarily or without just cause.”

Over the years it became clear that the understanding of rights as negative was not comprehensive enough. The need to recognize the double role the government had regarding constitutional rights was emphasized: On the one hand, it should avoid any limitation of constitutional rights; this is the negative aspect. On the other hand, that same government must protect those rights. That is the positive aspect. This protection has two main features. First, the government has to proactively ensure that individuals are able to exercise their constitutional rights. Thus, for example, the government must protect demonstrators of political speech from a hostile crowd. The second element is the state’s duty to prevent other individuals from limiting constitutional rights.