"Dear UnitedHealthcare:
As you may know, health care coverage is now a right. Barack Obama said so in last night's debate. The purpose of this letter is to inform you that I have decided to stop paying monthly insurance premiums. I don't pay a dime for any of my other rights - life, liberty, pursuit of happiness, blah blah blah... - why should I pay you guys for health insurance? Of course, I expect you to continue to provide your services for me and my family. If you don't, I'll sue you. For violating my rights.
Best Regards,"
Genuinely funny, but it misses the mark. There are a few arguments, both explicit and implicit, bound together in this short paragraph, so let's try to unpack it and respond accordingly:
"Health care coverage is now a right. Barack Obama said so..." Here the author is implying that Mr. Obama simply created a right out of thin air. This is a fairly common argument employed by so-called "originalists" who abhor the idea that rights can expand concurrently with the evolving standards of society. Let me concede that it would be entirely fair and correct to argue that, in 1790, the Constitution did not mandate health care as we know it. Fortunately, we do not live in the late 18th Century. I would counter the originalist notion in two ways: first, normatively, it is perfectly logical (and solid political philosophy) to argue that one of the central functions of the State is to protect and preserve the lives of its citizens. It is part of the social contract we enter into and it is the consideration we receive in exchange for voluntarily relinquishing some freedoms. Today, basic health care is essential to preserving the lives and well-being of every citizen. Second, descriptively, constitutional scholars couch the government's obligation to provide universal health care in Article I, Section 8, Clause 1, specifically the "general welfare" language. Thus there are normative and practical reasons to support and defend Mr. Obama's policy.
"I don't pay a dime for any of my other rights..." This claim is true only in the sense that it is severely linguistically confused. The author confuses a right for an obligation. Rights are not synonymous with obligations - we do not have an obligation to vote simply because we have the right. Rights impose obligations on others. Thus, because I have a right to be free from bodily harm, you have an obligation not to harm me, and, consequentially, the State has an obligation to protect that right. Thus, those of us paying for health care are not "paying for our right" but are providing the means by which the State can carry out its obligations. That is what universal health care would do and you would, at that point, be free to stop paying for health care and rely on the State system. Many people, however, would choose to pay more for a better quality of health care; but again, this does not equate to "paying for a right," it would simply be an added degree of protection above and beyond the constitutional requirement - sort of like paying for private security. Speaking of which...
Now even if we were to agree that paying health care premiums entails "paying for a right," is it really true that such a situation is entirely unique? No it is not. We pay to fund State obligations every year through taxes. Our right to be free from bodily harm? Protected by police forces which are funded through taxes. Our right to an education (some courts hold this to be a fundamental right)? Provided for us by tax-funded public schools. We even have a constitutionally protected right to marry (see Loving v. Virginia and Zablocki v. Wisconsin). But it costs money to get a marriage license. So let us not pretend that we would be so outraged to have to "pay for a right," when it is so common as to go virtually unnoticed and unchallenged.Finally, I would like to note that I realize that Mr. Obama is NOT advocating universal health care and I do not mean to imply such a case. Mr. Obama does, however, believe that health care is a right - whereas Mr. McCain does not. That is a key policy and philosophical distinction between the two campaigns.
~JSK
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I am glad that JSK realizes the satirical nature of the discussed quote. However, I wish to make two areas of argument as a critique of his analysis. I believe this comes down to two concepts. The first is the distinction between a positive right and a negative right. The second is the notion of a living vs. a static or originalist view of the Constitution (yes i know i just linked wikipedia, but its just so convenient). :)
In short, the difference between a positive and negative right is that positive rights impose obligations on others to do something, while negative rights oblige others to refrain from doing something. A negative right is the right from bodily harm (others must refrain from harming you), while a positive right would be healthcare (one must provide for you). This distinction is important because the Founding Fathers explicitly created a system designed to protect the prior and not the later. Continuing to stay with the Jefferson theme, he stated, “The legitimate powers of government extend to such acts only as are injurious to others" and again, “Laws provide against injury from others, but not from ourselves.” This notion is furthermore very clear in the Constitution and the Bill of Rights, where every right delineated within is the protection of a negative right. We have the right to bear arms; government cannot take them from us, but they do not need to provide them for us. The government cannot take your home by quartering troops in it, but it does not need to provide you with a home. We have the right to assemble, but government is not required to provide the forum for us to do so. In this part of the argument my counterpart agrees with me when he states, “Let me concede that it would be entirely fair and correct to argue that, in 1790, the Constitution did not mandate health care as we know it.”
He then makes the argument that the “General Welfare” clause in fact argues for such rights, even though he admits as previously quoted that healthcare was not perceived as a right. One, the term "welfare" had a different connotation at the time, meaning less to do with providing programs as we see it today and more to do with policies the promote the flourishing of society in general, for instance public works and laws to promote and protect commerce. But two, this only permits the government to do so; it does not require it to do so. This distinction is important. Personally, I do believe there is some role that government should play in healthcare, but I do not believe they are Constitutionally required to do so. I think stop lights are a good thing for state governments to put in place, but im pretty sure that no State Constitution mandates it. So he agrees that the original understanding of the Constitution did not require healthcare be provided.
Therefore, the entire point of contention then comes down to the idea of a living vs. static constitution. The living Constitution argument sees that its interpretations should evolve as society changes, where the static view sees that it should be interpreted by the “originalist” notion that JSK describes in a negative connotation. Now it is true that institutions must change with a changing society, but that is why the Founding Fathers placed a method via the amendment process to make allowance for this. JSK argues for this healthcare reasoning partially out of past case law that shows that there are indeed positive rights such as marriage, but these have largely been interpreted in the era of the Progressive court from the 30’s through 80’s which ruled within the living Constitution view (besides, marriage licenses are paid for through user fees, not by a third party through taxes). If the Founding Fathers had intended that the Constitution be “living”, why then place an amendment process? Would that then not be a useless provision? Furthermore, what is even the purpose of a Constitution in this case if it has no objective static meaning? Why have one at all if its meaning can be arbitrarily be changed by a very undemocratic of even unrepublican mechanism of unelected judges with virtually no checks on their power? As Jefferson said, "It [is] inconsistent with the principles of civil liberty, and contrary to the natural rights of the other members of the society, that any body of men therein should have authority to enlarge their own powers... without restraint."
-EJB
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Alright, rebuttal time: I have to clear up some things here.
First, a hardy welcome to our friend NTC (I'll deal with you below.) But as for EJ's arguments, I was hoping he'd take it to the lengths that he did. First, he needlessly points out the distinction between positive and negative rights (a distinction which is not universally accepted throughout legitimate legal philosophies). Sure, I'm with you on that one. But "This notion is furthermore very clear in the Constitution and the Bill of Rights, where every right delineated within is the protection of a negative right." Really? Every right? Explain to me how the right to a trial by jury is a negative right? Must the State not not refuse us one? And the right to counsel? All of these are positive rights that the State MUST provide for us...they affirmatively impose an obligation on the State. So let's not pretend that the Founding Fathers did not value positive rights.
This leads me to my next point...this "originalism" v. "living Constitution" dichotomy. First off, in response to NTC, I did not set up a false dichotomy because I never said the two were mutually exclusive. In fact, the correct method of Constitutional interpretation is certainly somewhere in between both extremes (for as Aristotle said, "All things in moderation.") EJB bites on the supposed notion of mutual exclusion. He also chides me for implying the "negative connotations" associated with the term "originalism." Interestingly, he then condemns SEVEN whole decades of Supreme Court jurisprudence as being "Progressive," a term which is certainly pejorative. Well, I'm pretty glad our "progressive" Supreme Court decided such cases as Brown v. Board of Ed....but I suppose EJB would consider that decision improper and arbitrary because the Court was "progressive" and relied on the shift in moral culture to infer a right that had previously not been accepted! This is my response to NTC and EJB, who fear that a "living Constitution" would have no bounds! NTC asks "how are we to judge the evolving standards of society?" Well, with judges. It's in the name. And by and large, they get it right. What's nice about our judicial system is that it is self-regulating. Thus if the Court makes a misstep in evaluating the evolving standards of decency, it can overturn the decision in a later case. The process is far cleaner and more efficient than the amendment process.
Finally, I pose a challenge to EJ's backing of the "originalist" school of interpretation. If it is true that we can only look to the definitions and connotations of the Founding Fathers, does that mean that we should read the Second Amendment to protect ONLY our right to muskets, flintlocks and howitzers ("arms" as defined in 1790)? Clearly, this is absurd...the protections of the Second Amendment shifted with the evolving nature of our culture. It should not take a two-thirds majority of Congress to officially recognize that the Second Amendment protects semi-automatic handguns. Let's be honest..."originalists" fall into the very trap they set out to avoid. They say to those who disagree "We cannot interpret the Constitution in light of evolving standards of society because you'll simply create whatever interpretation that you want!" Yet, they turn around and interpret for themselves what the Founding Fathers would have done! Let us not pretend that definitions and philosophies were monolithic and universally accepted in 1790, just as they are not now! Look at the records of Congressional debates; they show truly that there were as many disparate opinions about what the terms of the Constitution meant then as there are now. Thus, all an "originalist" does is filter out the Founding Fathers he disagrees with and puts forward an interpretation that HE more readily agrees with.
And EJB, you may have missed the point of my marriage example. I never claimed that marriage licenses are funded by taxpayers. I simply mean that we pay for those licenses when we get married...which would technically mean we're "paying for the right." Otherwise, we could not get married and thus would be denied the right.
~JSK
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