ABSTRACT
Action and Inaction ............................... 2279 B. The Public!Private Distinction .. ....... " ........... 2285
III. THE CHARTER OF NEGATIVE LIBERTIES: LOOSING THE TENACIOUS GRIP OF THE CONVENTIONAL WISDOM .... 2308 A. The Constitutional Source. . . . . . . . . . . . . . . . . . . . . . . . .. 2309 B. The Philosophical and Common Law Sources ....... 2313
C. The Fear 01 Chaos: Floodgates, Slippery Slopes, and Judicial Incapacity ...................... . ......... 2326 1. The Floodgates and Institutional Competence
Arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2327 2. The Slippery Slope Argument. . . . . . . . . . . . . . . . . .. 2330 3. The Reciprocity and Administrative
No inquiry is more central to constitutional jurisprudence than the effort to delineate the duties of govemment. The courts' approach to this complex subject has been dominated by reliance on a simple distinction between affirmative and negative responsibilities. Govemment is held solely to what courts characterize as a negative obligation: to refrain from acts that deprive citizens of protected rights. Obligations that courts conceive to be affirmative - duties to act, to provide, or to protect - are not enforceable constitutional rights. 1
This austere conception of the role of govemment is not new; it has a lengthy pedigree.2 Recently, the Supreme Court has demonstrated its continuing loyalty to the conception, in contexts which vividly illustrate its flesh and blood consequences. In DeShaney v. Winnebago County Department 01 Social Services,3 the Court left remediless the mother of a boy who had been beaten so severely he will require institutionalization for the rest of his life, despite an avoidable govemmental failure to prevent the harm. In Webster v. Reproductive Health Services,4 the Court upheld restrictions which will make abortions difficult or impossible for poor women to obtain. In both contexts the Court refused to hold that a governmental duty had been breached, on the ground that the Constitution does not impose affirmative obliga-
tions on govemment.5 In these and other cases, the powerful talismanic quality of certain
phrases is striking. The due process c1ause grants no affirmative rights. 6 Govemmental inaction is not actionable.7 'fhe Constitution is a charter of negative liberties. 8 These phrases signal the end of discussion about constitutional protections. A conclusion has been reached and no further reasoning is necessary. Yet when a conc1usory incantation permits so many harms to ftourish unchecked by the Constitution, it should send the opposite signal: that the language, and the concepts it describes, must be scrutinized with care. This article undertakes that scrutiny.
