THE LEGAL DEBATES AROUND CHARITABLE CHOICE LEGISLATION AND THE PRESI- dent’s Faith-Based Initiative occur within a legal system in which the role of the state and the scope of state power are central con- stitutional concerns. Public policies in the United States are con- strained by foundational, normative assumptions about individual rights and the authority of government. Primary among those as- sumptions is the belief that rights are negative; that is, unlike most other Western democratic countries, the American legal system does not constitutionalize so-called affirmative rights. Any right of citizens to health care, adequate housing, education, or social welfare is a creation of a statute, subject to revision by a simple act of Congress. Such affirmative entitlements are not part of the fundamental law of this country. Instead, rights are understood in the classic Enlightenment construct, as limitations on the reach of the state. As Ronald Cass has reminded us, those who crafted our constitutional framework “saw constraining discretionary power of government officials—the central focus of the rule of law—as essential to the society they hoped to create” (Cass 2001, xii).
It is instructive to recall that the early arguments between the Federalists and Anti-Federalists over the necessity of a Bill of Rights had nothing to do with the importance of individual rights, so understood. That was a matter upon which both sides agreed. The Federalists believed that, because the government they had created had only the powers specifically delegated to it by the Constitu- tion, it lacked the power to infringe upon the “inalienable” rights of its citizens. (Federalists like Alexander Hamilton also argued that an enumeration of rights would be dangerous, because any right not included might be deemed to be unprotected.) The Anti- Federalists believed that it was in the nature of governments to