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Omnia pro aegroto
The Pervasive Duty to Rescue
by Donald J. Kochan
Mr. Kochan is an Adjunct Scholar with The Mackinac Center for Public Policy, Midland, Michigan.
This article was originally published by the Foundation for Economic
Education, 30 S. Broadway, Irvington-on-Hudson, NY 10533, in The Freeman,
June, 1997, and is reprinted with permission.
As individuals, Americans may choose to act as Good Samaritans and come to
the aid of those in need, but are not legally obligated to do so.
Traditionally under American law, no general duty to rescue is imposed upon
us. This, at least, was the classic common tort law of England and the United
States. Whatever one might think of the morality of declining to rescue
people in trouble, there was no legal penalty for merely going about your own
Classic tort law imposed no duty of rescue, and, consistent with that
concept, government did not feel it had the power to coerce benevolence in
public law either. With the creation of the modern welfare state, however,
the government has abandoned its previous restraint. A citizen need only look
at his paycheck each week to realize that he is indeed being forced to come
to the aid of others.
The private law of torts illustrates one origin of the prohibition on
coerced benevolence and is thereby helpful in understanding the injustice of
redistribution. The rule accepted in the common law of torts holds that no
one can be legally obligated to provide any level of help to another in need.
Tort law expressly indicates that an individual cannot be forced to give up
a portion of his liberty to benefit another, no matter how little the cost or
how great the benefit. This protection against forced benevolence is a
logical extension from the concept of negative liberty understood at the
Founding and embraced in the Constitution: law exists to protect against
intrusions on liberty and not as a means for compelling action.
James Madison, the father of the Constitution, was emphatic in his belief
that the Constitution fails to grant the government power to redistribute
resources for welfare programs of any kind. In an address to the floor of the
House in 1794, Madison attacked a welfare bill stating that he could not
"undertake to lay [his] finger on that article of the Federal Constitution
which granted a right to Congress of expending, upon objects of benevolence,
the money of their constituents."1 This statement reflects the enumerated
powers doctrine, holding that the government cannot act outside of a specific
granted power. The Founders did not believe that Congressional power was
plenary, as it is often believed to be today.
Given Madison's statement, it is impossible to believe that the Founders
contemplated that Congress should have the power to compel assistance from
one citizen to aid another. In private law, C never has a claim to take A's
property merely because he is in want of it due to his destitution. Such
actions are rightly called theft and therefore outlawed. There is no reason
to believe that the institution of government somehow transforms this
principle and grants C (or others purporting to act on his behalf) the power
to employ the state to these ends.
Thomas Jefferson's thoughts on the proper role of government bear repeating
here: "A wise and frugal government, which shall restrain men from injuring
one another, shall leave them otherwise free to regulate their own pursuits
of industry and improvement, and shall not take from the mouth of labor the
bread it has earned. This is the sum of good government..." [emphasis added].
Taxation to support government welfare programs is clearly at odds with our
third president's philosophy.
Conscience and Constitution
Noted constitutional scholar and Supreme Court Justice Joseph Story wrote
that "[A] man has a perfect right to life, to his personal liberty, and to
his property; and he may by force assert and vindicate those rights against
every aggressor. But he has but an imperfect, right to ... charity ... even
if he is truly deserving it..." where these imperfect rights "may not be
asserted by force of law, but are obligatory only on the conscience of
Ironically enough, some key supporters of the New Deal also recognized that
the emerging welfare state was unconstitutional. In 1935, Franklin Roosevelt
wrote to the chairman of the House Ways and Means Committee saying, "I hope
your committee will not permit doubts as to constitutionality, however
reasonable, to block the suggested legislation."3
In 1968, Rexford Guy Tugwell, a principal architect of the New Deal,
observed, "To the extent that these [New Deal policies] developed, they were
tortured interpretations of a document [i.e., the Constitution] intended to
Social Security, unemployment benefits, corporate subsidies, farm
subsidies, public housing, and countless other manifestations of the welfare
state are all coerced transfers which impose an affirmative duty to "rescue"
upon us. (Many of the beneficiaries, of course, are not in peril or even the
least bit needy, but have learned to play the political game well enough to
collect large amounts from the government.) This not only adversely affects
individual liberty, but also increases the number of imperfect rescues.
Government programs create dependency, create flawed incentives, and are too
broad and generalized to target resources effectively. They hurt more than
they help. In tort law, an individual can be held liable for a failed rescue
when his heroic attempts are beyond his capacity and actually do harm to the
one in need of assistance.5 The government, however, is not liable for the
harm its "rescue" programs do.
Only private charity can meet the requirements of those truly in need of
assistance. Private funds can be targeted toward those in actual need.
Moreover, private organizations are smaller and more localized, allowing them
to address the specific problems that needy people have and apply specific
solutions, instead of merely sending out impersonal checks drawn against
government accounts. Finally, private charities must be more accountable, for
they do not have the coercive power of taxation available to ensure continued
Government programs, unfortunately, have co-opted this superior private
approach. Many people believe that they need not get involved because of a
flawed perception that the government is doing the job. Moreover, many cannot
afford to assist privately, given the drain on their budget from taxation. In
tort law, a person can be held liable for preventing a needy individual from
getting more effective assistance.6 That, essentially, is what the
government does by its discouragement of private charity, but again, the gov-
ernment is not liable for the harm it does.
The rules of the common law, developed over many centuries, usually exhibit
a profound wisdom in the ordering of human affairs. The rule against
compulsory rescues is such a rule. If you were obligated to help everyone in
need, the demands on your time and money would be almost endless. The only
solution to the problem that protects the individual's freedom of action and
property rights is the one adopted by the common law: there is no legal duty
to rescue. There may be a moral duty, but the law leaves that to the
individual and his conscience.
1The Cato Handbook for Congress: 104th Congress (Washington, D.C.: Cato
Institute, 1995), p. 19.
2Joseph Story, Natural Law, unsigned article in Encyclopedia Americana,
reprinted as an appendix in James McClellan, Joseph Story and the American
Constitution (Norman, Okla.: University of Oklahoma Press, 1990 ).
3Cato Handbook, p. 19.
5See, e.g., Farwell V. Keaton, 396 Mich. 281, 240 N.W. 2d 217 (1976).
6See, e.g., Lacey V. U.S., 98 F.supp. 219, 220 (D.Miss. 1951).
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Pamphlet No. 1060, May, 1998