The Negative Constitution: When Do We Hold the Government Accountable?

Trigger Warning: Child Abuse, Domestic Violence, Homicide

Life, liberty, and property — these core values were outlined in the Declaration of Independence in 1776 to offer Americans their most basic and unalienable rights. In 1789, The Bill of Rights expanded on this and established that “Congress shall make no law” restricting certain rights. Nearly 80 years later, the Fourteenth Amendment extended these rights with provisions to ensure their equal protection from state governments: “... nor shall any State deprive any person of life, liberty, or property, without due process of law.” 

While these rights are undoubtedly fundamental to our Constitution, a misconception arises about how they actually manifest. Nowhere does it say that “all American citizens have a right to life, liberty, or property” or “all American citizens have the right to free speech”. Rather, the language of “Congress shall make no law” and “nor shall any State deprive any person” suggests that these rights are designed as limits on the government instead of specific rights explicitly granted to the people. 

This textualist interpretation is attributed to the concept of a negative Constitution, which outlines what the government cannot do, not what it must do. The rights embedded within a negative Constitution are referred to as negative rights, acting more as checks on federal and state government power. In contrast, positive rights expressly require the government to provide citizens with certain rights. 

While some argue that the U.S. does have positive rights, such as the right to a jury trial, others view it as merely a procedural safeguard within due process. This is distinct from the positive rights that other countries legally mandate, which tend to require that the government provides basic necessities like a right to housing, education, and healthcare. While the U.S. Constitution lacks these provisions, modern politics are filled with clashes about establishing these mandates, such as Bernie Sanders’s Medicare for All proposal to provide universal healthcare. Beyond politics, there are various controversial Supreme Court precedents that fortify the negative Constitution by defending the government's inaction in cases of due process violations. 

One of these precedents was established in DeShaney v. Winnebago County DSS (1989), regarding the child abuse inflicted upon Joshua DeShaney by his father and the lack of intervention by his county’s Department of Social Services [DSS]. Despite multiple child abuse claims brought since January 1982 and no observable changes in Joshua’s home situation, the DSS still did not take any concrete action to separate Joshua’s father from him. This external neglect allowed the abuse to continue until four-year-old Joshua fell into a life-threatening coma in March 1984 and survived with permanent brain damage. His mother sued the county’s DSS for depriving her son of the “liberty” protected by the Due Process Clause. However, the Supreme Court ruled in the DSS’s favor and used the Fourteenth Amendment to say that the government never had a duty to act. Moreover, this decision reinforced that the Due Process Clause only prevents the government from taking away rights but does not require governments to act to protect rights from private actors.

In a similar case, Castle Rock v. Gonzales (2005), Jessica Gonzales sued the town of Castle Rock, Colorado for violating the Due Process Clause by failing to enforce a temporary restraining order [TRO]. On the evening of June 22, 1999, Gonzales’s estranged husband took their three daughters while they were playing outside without her consent. After hours of calling the police and her children still missing, Gonzales went to the police station at 12:50 a.m. to submit an incident report. However, the officer who took the report “made no reasonable effort to enforce the TRO or locate the three children. Instead, he went to dinner.” At approximately 3:20 a.m, the husband opened fire in the police station with a gun he purchased earlier that night. Shortly after killing him, the police found the bodies of the three daughters whom he had already murdered. Gonzales sued Castle Rock for violating the Due Process Clause on the ground that she had a property interest in the police enforcement of the restraining order against her husband. However, the Supreme Court ruled in favor of Castle Rock and stated that the restraining order was not an entitlement, as Colorado law did not make the enforcement of restraining orders mandatory. 

A more recent example of government inaction is the Flint Michigan Water Crisis (April 2014–June 2016), known as one of the biggest environmental justice disasters in the U.S. State officials failed to ensure that corrosion-control additives were in the new water supply despite low financial barriers to doing so. Consequently, 100,000 people, who were largely poor and minorities, were prevented from drinking tap water, and nearly 30,000 schoolchildren were exposed to drinking water containing a neurotoxin that has detrimental effects on brain development. Government officials on every level were accused of ignoring or covering up these issues, resulting in a $626.25-million settlement – one of the largest civil settlements in state history. Despite this monetary gain, thousands of lives are still forever damaged by the government’s deliberate inaction and failure to provide a basic necessity. 

These are three instances of tragedy that could have been prevented had the government intervened in the roles that were carved out to protect people from harm inflicted by private actors: the DSS protecting children from abuse, police officers enforcing restraining orders, and EPA mitigating a water quality crisis. Instead, each case held that the government has no affirmative authority to act and further blurred the lines between government accountability and protecting individual rights. While the idea of a negative constitution creates ambiguity regarding when the government should be held accountable, it does prevent individuals from suing the government anytime they are harmed by a private actor. This may be intended to save time and resources, but the three aforementioned examples demonstrate the injustice that rapidly manifests when government officials go unpunished for their negligence and the suffering inflicted upon citizens. 

It is clear that there needs to be a specific judicial test that differentiates when the affirmative authority to act should be imposed on government entities. Similar tests have been created and used by the Supreme Court to determine culpability in cases regarding preemption, nondelegation, and other legal issues. If this line is not clearly drawn for protecting individual rights, why even have government agencies like the DSS or EPA that are supposed to intervene in cases where private actors inflict harm on others? Why even have restraining orders if they are not going to be enforced? Who is going to be held accountable for the damage being done and the lives lost? Without an answer, these decisions can jeopardize more victims of heartbreaking circumstances, like child abuse and domestic violence, by leaving them with unreliable resources to turn to in times of life-threatening harm.

Ashley Ganesh is a sophomore at Brown University concentrating in Business Economics and International and Public Affairs. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at ashley_ganesh@brown.edu.