I note this concurring opinion from Judge Merritt, where he comments on an opinion by my former boss, Judge Danny Boggs:
MERRITT, Circuit Judge, concurring. I agree with the court’s result but not all of its reasoning. The court’s idea that there is no “general duty” on the part of the government “to protect its citizens” and that all rights should be viewed as “strict negative rights” suggests a strict libertarian ideology that does not reflect the way our system works. See David P. Currie “Positive and Negative Constitutional Rights,” 53 U. Chi. L. Rev. 864 (1986).
Here is the passage from Judge Boggs’s opinion that set off Judge Merritt:
Both parties recognize the centrality of the Supreme Court’s seminal decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), a case, like this one, with “undeniably tragic” facts. Id. at 191. DeShaney stands for the principle that there is no general duty on the part of the state to protect its citizens from private harms. Strict negative rights are a distinctive aspect of the American constitutional system. “The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.” Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (Posner, J.).
I’m familiar with another “strict libertarian” constitutional scholar who referred to the Constitution as a charter of “negative liberties.”
[The] Constitution [is] merely “a charter of negative liberties. It says what the states can’t do to you. Says what the federal government can’t do to you but doesn’t say what the federal government or state government must do on your behalf.”
Like Judge Boggs, he was an instructor at the University of Chicago Law School.