What the Constitutions of the Soviet Union and North Korea Can Teach Us about Rights—and the Purpose of a Constitution

From FEE.org (Oct. 1, 2022):

On December 5, 1936, history was made in Moscow when the Eighth Congress of Soviets approved and Joseph Stalin signed the Soviet Constitution of 1936.

Also known as the “Stalin Constitution,” the document was hailed by Soviet leaders as “the most democratic in the world.” It was indeed a revolutionary document — and not even primarily because of its openly socialist ideology. What made it so striking was that it granted more rights — civic, political, and personal — than almost any Western constitution did (or does today, for that matter). Forget the universal right to vote, the five freedoms granted in the First Amendment of the US Constitution, or the right to privacy; the Soviet Constitution guaranteed all of that and more. There was the right to “rest and leisure,” “the right to maintenance in old age and also in the case of sickness or loss of capacity to work,” and the ”right to employment and payment for their work in accordance with its quantity and quality.”

Despite this new, egalitarian Constitution, the next two years were notable for its escalation of terror and Stalin’s campaign “to eliminate dissenting members of the Communist Party and anyone else he considered a threat.” Over 750,000 people were executed and more than a million were put in the Gulag (a system of forced labor camps). This period became known as the Great Purge. In subsequent decades, many more millions of people were killed in famines caused by an utterly inefficient state-run economy, while others were killed for expressing dissenting views. Citizens had no right to protest the government, join a union that was not controlled by the state, or even leave the state without express permission from the government.

All of this was done in the name of creating a better society; and it was done despite the lofty, rights-centered language of their new Constitution. In other words, despite enshrining utopia into law, the USSR ended up being one of the worst and most repressive countries in history.

The question, therefore, must be asked: how could this happen? How could the terror and brutality of the Soviet Union happen under such a seemingly progressive and forward-looking Constitution?

The answer is surprisingly simple — and also instructive for our own times.

The Purpose of a Constitution

The horrors of the USSR were able to take place, despite all of the rights included in their Constitution, for two reasons.

The first reason is that the framework the USSR Constitution outlined — and the structures it put in place — did not prevent the centralization of power. In fact, it actually did the opposite by maintaining the absolute power of the Communist Party, while also granting the government jurisdiction over basically every area of life.

However, the creation of systems designed to keep total power out of the hands of any group is both the purpose and the sign of a strong constitution. It ensures that even if some people would like to violate the rights of others — whether it be for personal gain or ideological reasons — they will not be able to because there are checks on the amount of power any individual or body can accumulate.

The second reason is that the USSR Constitution enshrined a utopian vision into law. The issue, of course, is that it is impossible to achieve utopia — even if one includes it in a constitution.

But what actually makes a constitution utopian?

In order to answer this question, we must make a distinction between two very different ideas about where our rights come from and what government’s role in society actually is.

Many believe, including America’s Founding Fathers, that our rights pre-exist government — that they are either granted by God or simply a fact of nature, depending on your perspective. The government’s role is to protect these rights, which are traditionally termed “negative” rights and protect individuals from being subjected to an action by another person or group (such as a government). This approach’s most prominent example is the US Constitution.

Others believe that rights are granted by governments and that, as circumstances change over time, governments should grant more rights to people. This group believes that the government’s role is to go beyond protecting individual rights and actually guarantee things to its citizens — those “things” traditionally being termed “positive” rights. This is the “utopian” vision.

In a 2019 essay, FEE’s President Emeritus, Lawrence W. Reed, sought to explain the core difference between the two by first writing out a list of things that — from his perspective — are rights and things that are not rights. The former list included things such as one’s life, thoughts, and speech; the latter list included things such as internet access, taxpayer-funded education, and another person’s car.

He explains the key distinction between the two lists.

“In the case of the first list, nothing is required of other people except that they leave you alone,” Reed explained. “For you to have a right to something in the second list, however, requires that other people be compelled to provide that something to you. That’s a monumental difference!”

It certainly is a monumental difference, and it illuminates the reason why positive rights cannot really be termed “rights” at all: they can only be granted to citizens if force is used against another person. But, by terming things that would be really nice to have as rights, it gives the state more power, as well as more legitimacy, to pursue this utopian vision by any means necessary. When taken to an extreme, violating another person’s actual rights can easily be justified as a necessary, short-term evil that will eventually allow utopia to flourish: a true path to tyranny.

In summary, constitutions should 1) provide a stable framework of government by setting up structures to prevent the centralization of power; 2) not be used to promise utopia (i.e. confer positive rights to people that require aggressing against person A in order to secure something for person B.

A polity that ignores one of those facts is doomed to fail; a polity that ignores both is headed for disaster. [read more]

The Left definitely don’t want a negative rights constitution (since they are aligned with the big government socialists and communists) but a utopian one which turns eventually into a dystopia.