… but then neither is property.

Writing at National Review Online’s “The Corner” conservative commentator Stephen Spruiell claims:

Health care is not a right, at least not according to the conception of rights upon which this country was founded. Your rights include life, liberty and the pursuit of happiness. You may not be unjustly deprived of these things. Your rights do not include things that I or anyone else must be forced to provide for you, such as a home, a car, a job, or health care.

I would be surprised to find the founders univocal on the nature of rights, but I understand that the narrow conception of “negative rights” was historically important and represents a distinct concept of “right” from the one employed in claiming that health care or education is a right.  What I don’t think that Spruiell will like to admit is that “property rights” may well be argued to fall under the broader conception of “right” that includes positive rights.  Consider what Thomas Paine said in “Agrarian Justice”:

There could be no such thing as landed property originally. Man did not make the earth, and, though he had a natural right to occupy it, he had no right to locate as his property in perpetuity any part of it; neither did the Creator of the earth open a land-office, from whence the first title-deeds should issue. Whence then, arose the idea of landed property? I answer as before, that when cultivation began the idea of landed property began with it, from the impossibility of separating the improvement made by cultivation from the earth itself, upon which that improvement was made.

The value of the improvement so far exceeded the value of the natural earth, at that time, as to absorb it; till, in the end, the common right of all became confounded into the cultivated right of the individual. But there are, nevertheless, distinct species of rights, and will continue to be, so long as the earth endures.

Individual property rights are here recognized as “of a distinct species” from the “common right of all” to benefit from natural resources.  Paine is commenting directly on the Lockean standard and fairly clearly rejects it.  Continuing, Paine writes:

Cultivation is at least one of the greatest natural improvements ever made by human invention. It has given to created earth a tenfold value. But the landed monopoly that began with it has produced the greatest evil. It has dispossessed more than half the inhabitants of every nation of their natural inheritance, without providing for them, as ought to have been done, an indemnification for that loss, and has thereby created a species of poverty and wretchedness that did not exist before.

In advocating the case of the persons thus dispossessed, it is a right, and not a charity, that I am pleading for. But it is that kind of right which, being neglected at first, could not be brought forward afterwards till heaven had opened the way by a revolution in the system of government. Let us then do honor to revolutions by justice, and give currency to their principles by blessings.

The establishment by governments and quasi-governments of a regime of individual ownership has costs and benefits.  On the one hand, it creates the incentive to make the land more productive.  On the other hand, it creates an elite class of property owners and deprives others of opportunity to use resources that are naturally held in common.  As a remedy, Paine proposes a tax on property owners to redistribute goods to those that are deprived by the system of private ownership.  Indeed, if we follow Paine, it would seem that the redistributive scheme is justified by a right more basic than the system of private ownership.  The system of private ownership has a purely utilitarian justification: viz., it creates incentive to increase land productivity.  The redistributive correction of the negative and unintended consequences, on the other hand, is justified by appeal to a fundamental natural right of common propoerty, characterized thusly by Paine:

It is a position not to be controverted that the earth, in its natural, cultivated state was, and ever would have continued to be, the common property of the human race. In that state every man would have been born to property. He would have been a joint life proprietor with rest in the property of the soil, and in all its natural productions, vegetable and animal.

It may be controverted that others of the founders did not share Paine’s outlook, one that blurs the distinction between landlord and government in ways that would discomfort contemporary American libertarians (and those conservatives that pretend to be libertarians whenever it suits them).  I can’t say that I have a terrific grasp of every one of the founders’ views on “rights” and I won’t pretend (as Spruiell does) that I do.  Nevertheless, I find much to recommend in Paine’s outlook.  On this view, individual property rights are (again) “of a distinct species” from what we might call natural rights.  They are justified by their positive consequences, but to the extent that they also have negative effects by limiting every non-owner’s natural right to freely use the earth’s resources to sustain his or her life and to pursue happiness, I am with Paine that government is not only justified but obligated to provide compensation.  Taxation supported public services like health, education, welfare, and infrastructure fulfill this obligation.