The Question of Positive Rights in a Written Scottish Constitution


  By Mark McNaught
On the 16th of January, Alex Salmond announced that one of the first priorities in the event of a ‘Yes’ vote on independence would be to draft a written constitution.  This will undoubtedly be seen as a milestone in the debate.
While he gave few details, rightly stressing that a Scottish constitution would be drafted with the participation of all parties and the Scottish people, his remarks suggest what could be included in terms of positive rights.

Negative rights limit the scope of state action, things which citizens have the right to protection from, for example unreasonable search and seizure, infringements on speech and religious liberties, etc.  Positive rights can be broadly defined as things which citizens have the right to, for example health, housing, education, and welfare.

Salmond mentioned in his speech the possibility of including positive rights in a written constitution, including free education, welfare benefits, and housing.  While these are laudable aims, the manner in which they are constitutionally guaranteed is important for maintaining their credibility and effectiveness.

There is a big difference between having the right to something and having the means to obtain it.  Take housing for example.  Simply including a constitutional clause guaranteeing everyone the right to housing, without providing the means to accomplish this, risks delegitimising such a right over time.  Everyone currently has a right to housing, but too many are not in a financial position to avail themselves of it.

What exactly is a positive right?  It can be defined as one of two things: either conditional access to something or universal provision of it.  This brings up the central question: how can positive rights be written into a constitution while still remaining credible?

One solution is to include in the constitution a list of desirable positive rights: housing, free education, etc., while stipulating that these are goals that a Scottish government must work to provide to all citizens over time through legislative action and financing.

If the Scottish government is constitutionally obliged to work towards these ends, and eventually homelessness is demonstrably eliminated, and specified welfare benefits are truly provided to all, these desired rights could be re-categorised as guaranteed rights. 

Instituting this two-tiered categorisation of rights would not diminish their importance, but would better reflect to what degree they are a reality, rather than just words on paper.

In the US for example, there are no federally guaranteed social rights.  Nowhere in the Constitution or the Bill of Rights is there a mention of health, education, or social benefits.  Many Americans talk about their ‘right’ to health care, but this is found in no text which could assure truly universal access.  For over 100 years, there have been many failed legislative efforts to provide health insurance to all Americans.  Obamacare is currently being instituted, but the American people are still far from having an equitable ‘right’ to care, regardless of ability to pay, merely by virtue of being citizens.

If the US constitution were adaptable enough to incorporate positive rights, and Congress were constitutionally obligated to work towards universally assuring them, the US might not be such an unequal society.

Not having a written constitution, rights in the UK are statutory, and can be easily changed by governments.   However, this has an advantage in that rights are adaptable to changing societal conditions.

Scotland could develop a hybrid constitutional rights system which borrows from both.   Rights could be constitutionally yet progressively guaranteed, without being as ossified and rigid as in the US.  Mechanisms could be created to adapt these rights to the exigencies of the moment.

The blank slate upon which a written Scottish constitution could be written allows for completely new ways of thinking in terms of how a state guarantees rights, and what meaning its citizens ultimately attribute to them.

Only independence will afford Scots the opportunity.

Mark McNaught is a member of the Constitutional Commission and an Associate Professor of US Civilisation at the University of Rennes 2 France. He also teaches US constitutional law at Sciences-Po Paris.