In my previous post I mentioned that health care is a “right” and not a privilege. Several commenters mentioned that my definition of “rights” was fundamentally different than that spelled out in the Constitution. In short, the Constitution speaks of negative rights – those that cannot be abridged by the government. Alas, freedom of speech, or religion, or the press are examples of rights that governments cannot abrogate.
The Ninth Amendment clearly states that the grand sum of rights retained by the people are not spelled out in the Bill of Rights. The people retain other rights.
But what are they? And how are they identified?
The right to privacy is a similar sort of negative right. It encompasses a host of potential violations of private behavior by the government.
The right to property is also a vital negative right, though the extent of that right ran into difficulty when property was defined as human chattel (slavery). The 13th Amendment explicitly disqualified a form of property protected by US law, custom and Constitutional guarantee up to that time. Property rights after emancipation were no longer Constitutionally absolute. But few other species of property have been similarly outlawed – at least at the Constitutional level. Federal laws against, say, narcotics constitute an abridgement of property rights but few make that argument.
But what of so-called positive rights. That is, rights TO something tangible. The Constitutional basis for this is the “general welfare” clause of the Preamble. We usually include basic necessities of life like food, water, shelter and, yes, health care in that mix. Federal programs provide the most basic safety net against starvation and absolute homelessness. And Federal law prevents a hospital emergency room from turning somebody away with a life-threatening injury.
While not explicitly enshrined in the Constitution (nor banned by it thanks to the 9th Amendment), these positive rights are nevertheless recognized by the Federal government, all 50 state governments, and by American society at large (the most extreme Randians notwithstanding).
But what about the quality and cost of these positive rights? When FDR laid out his economic bill of rights in the 1940s he said “quality health care.” In fact, this is where the debate comes in.
Virtually nobody argues that the sick should be left to die in the streets.
But exactly how much care should be guaranteed as part of the right to health care? And how does the right to health care balance with the right to personal property? I would argue that the right to quality health care trumps the right not to pay for the health care needs of the working class. That’s why I said this health care made us more free – free to live without fear of denial of access to insurance-paid health care. But one can obviously interpret it differently – that the taxes and fees necessary to subsidize somebody else’s care constitutes a violation of my rights to keep my own property (money).
But I think the determinant of this balance is the legislature (Federal and state) speaking as the will of the people who elect it. The social contract is malleable. Working conditions accepted as normal 100 years ago are considered obscene and illegal today. Housing codes and zoning laws guarantee public safety and public health – as well as property values. But they were once considered a violation of property rights.
This is precisely why the Founders included the Ninth Amendment to the Constitution. What is not considered a right at one point may be considered as a right later. And it is up to the political process to determine which right is guaranteed and which is not.
I believe health insurance, including access to primary care, is one of those rights. And the Federal government has just affirmed this belief. Whether the public as a whole will come to accept this right – as it has come to accept the right of children to an education and to protection against child labor – is up to the future. But the government took a major step in advancing a positive right by passing the health care reform bill.
And just to add an example of the complications of positive and negative rights, consider abortion. Pro-choice advocates argue that the negative right to privacy includes the right of women against governmental control of their uteruses. Pro-life advocates argue that the unborn have a positive right to life that must be protected against denial not by government itself (the government does not force abortions) but by private citizens who would violate that right. The Constitutional protection of “life” is generally construed as a negative right – the government cannot execute its citizens without due process. But the right not to be murdered – when born or unborn – is a positive right.
And it will be up to the political process to define the parameters of the positive right to life as it will be to determine the limits of the positive right to “quality health care”.