Tuesday, September 22, 2009

Is there a right to health care?

One of the things the right-wing is quick to retort, when you say that every American should have the right to health care, is "there's no Constitutional right to health care."

The problem is this: Right wingers don't get to judge what the Constitution says. The Constitution gives the judicial power (i.e., the power to judge what's Constitutional or not) to the judicial branch, which culminates in the U.S. Supreme Court. So what does the U.S. judicial system say about health care? Well, basically, in multiple rulings, they agree: Health care is a constitutionally-guaranteed right for those in custodial care. Depriving health care of someone in custody of the state, the Supremes ruled, constitutes depraved indifference and constitutes cruel and unusual punishment under the 8th Amendment.

Of course, we're talking custodial care -- those who are in the custody of the state, either because they are prisoners, or are foster children, are in a state home for the disabled, or are otherwise under the guardianship of the state. Still, clearly, the U.S. Supreme Court has said that health care is a right for at least one population, which gives the lie to the right-wing nonsense that health care is fundamentally not a right. The Supreme Court has decidedly ruled, multiple times, that when the government deprives someone of health care it constitutes depraved indifference to the well-being of the person and thus cruel and unusual punishment.

So the question is, what about the rights of people not in the government's custody? The 9th Amendment is pretty clear: the rights mentioned in the first eight amendments of the Constitution are not the only rights that people have. The 9th Amendment clearly states that new unenumerated rights might be discovered by The People. So is health care a right? Well, a) the Supreme Court has ruled that the Constitution clearly does not rule out health care being a right, and b) the people of the United States appear to believe that health care should be a right and the 9th Amendment allows the people to declare or discover new rights. So there's no Constitutional reason to not have Medicare For All or any other program that is designed to protect this new-found right to health care for all Americans. There may be arguments against the notion that health care is a right, but the Constitution isn't one of them, unless you want to throw out the Constitution by saying that someone other than judges get to judge what the Constitution says. At which point you're already stomping on the Constitution with hob-nailed boots, so why bother with a Constitutional argument in the first place, eh?

-- Badtux the Constitutional Penguin


  1. I hadn't even considered those in the care of the state, though now that you point this out it seems obvious enough. I still don't understand how health care would not be Constitutional when promoting the general welfare is exactly what a (effective) government health care system would do.

    And welcome back B/T.

  2. Well said I too agree .
    Funny how people can interept the constition differently . As I understand it , around the turn of the century people or the courts at least determined that it was constitutional for an adult to take any kind of drug that they wanted . By the 30's I guess , the idea basically changed that constitutionally you could be prevented from taking said drug of choice .
    I would hate to see universal health care passed and later determined "wrong" .

  3. Well, Medicare has been here since 1965 -- that's 44 years, in case you're counting. And no court has ever ruled that Medicare is unconstitutional. There's no reason a court would decide that Medicare For All is any more unconstitutional than Medicare For Prunes, and it seems to me that no court wants to wade into that quagmire, especially with all their rulings on health care as a right for those in institutional care. They'd have to overturn their entire prior body of work, and the Supreme Court is willing to do that generally only in the case of one-off rulings like Bush v. Gore that have no chance of being a precedent.

  4. Is there a right to anything?

    How about the right to just be left alone?

  5. Your right to be left alone stops at the point where you use communal services such as streets or highways or police protection. At that point you have no right to be a freeloader.

    In the case of healthcare we've already determined that for expensive illnesses like leukemia, the only way that works is for everybody to pool their money together to pay for treating the few who are going to get that illness. Otherwise everybody who gets that illness dies, and we've determined as a society that the right to life outweighs the right to keep your money. The only question remaining is who runs that pool -- insurance companies, the government, or whatever -- and who is eligible for the common pool, and who instead will be sent home to die or who will be treated via leeching off the other pools (i.e., who will be deadbeats). OR we could just say, "if you get leukemia, go home and die." Which appears to be the Republican health care plan...

  6. Among others, a stated purpose of the Constitution is to "promote the general welfare." If there's anything that would currently move us toward that goal more than universal health care, I can't think what it might be.

  7. Hi Badtux. Great catch on the 9th amendment.

    Looking at this question from the perspective of political philosophy, I've been posting lately about the differing conceptions of "liberty." The right-wingers embrace a notion of negative liberty - the freedom to be left alone. 'Course, that breaks down as soon as they perceive their own entitlements (Medicare, for many of the town hall protesters) to be threatened.

    One aspect of positive liberty, by contrast, is the idea that you need to be free to act, and that this may require access to certain resources. Obviously liberty doesn't mean much if you're sick or disabled and can't get the help you'd need in order to actually exercise your liberty.

    I'd like to see the framing of the debate shift so that our side can make this pro-liberty argument as well as your constitutional points, because I think they're strong. But the small, reasonable voices of penguins and kitties can't be heard over the thundering of the deathers and birthers and other nutjobs.

  8. Excellent Constitutional analysis. Sungold also makes a good point about Liberty. You can't enjoy that unalienable right if you are dead. Same, too, with the Pursuit of Happiness. And if we are to have a pool of money to make it all work, I much prefer a publicly managed pool rather than one focused on profit and private interest.

  9. If a tree falls in a forest and it lands on sarah palin would it matter ?

    Only if I happened to come along at that time wanted to kiss her tits. Of course I would have to gag her first. :-)

  10. Been thinking as I ocassionaly do and it comes to my feeble mind that there IS a "right to life" movement in this country . As I understand it they oppose obortion and are membered by christainist types . Well isn't healthcare part of a Right to life ? You would think the christianist movement would be all for this issue like dogs on a firehydrant . But they are strangely quiet on this .
    Oh yea , I forgot , "the right to life ends when you are born and doesn't start again till you are of draft age" . Then you get Military health coverage , untill your tour is up , unless you get hit in combat (lucky you) . Funnny how they talk Jesus untill it comes time to stand up for a Christian idea , then it's bye-bye .

  11. The Constitution speaks of rights in terms of what the government may not actively prevent you from doing or having, not what the government is mandated to provide to you. The right to peaceably assemble to petition for the redress of grievances does not obligate the government to pay your busfare to get to the protest rally. The right to be secure against unreasonable searches and seizures does not require the government to buy you good locks and burglar alarms - it only says the _government_ can't break into your house without cause.

    The right to healthcare for someone in custodial care is rooted in the right not to be subject to cruel and unusual punishment, not an inherent right to healthcare. It is only because the prisoner has been denied the ability to act to provide it for him or herself.

    Now, the federal government can certainly do things that it is not _required_ to do. The enumerated powers clearly include things (such as granting patents) that do not carry a mandate to do so. The right-wingers are indulging in intellectually dishonest wishful thinking to say that the Constitution does not permit the federal government to provide healthcare - the "general welfare" clause gives sufficient cover IMO. But you are, I'm afraid, indulging in similar wishful thinking to say that the 9th Amendment could honestly be construed to create a _mandate_ for the government to pay for universal healthcare.

  12. Uhm, "the government" is We The People. Read the preamble again. And no current bill in Congress says that all Americans have a right to government-provided health insurance -- just that they have a right to purchase health insurance of their liking, and will receive subsidies to do so if they cannot afford it.

    Regarding rights being things government should not not do vs. things government should do, read the 15th and 19th Amendments again. This provides for something government must do -- i.e., allow African-Americans and women to vote. It is clear that rights can be both negative and affirmative in nature, and that this notion dates back all the way to the founding. Or as the Declaration of Independence states, We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, i.e., that government has a responsibility to not only avoid infringing upon rights (things government must not do), but also to secure these rights (things government must do).

    In short, from the beginning it has been clear that rights involve not only prohibitions against infringement, but affirmative efforts to secure those rights which were granted by the Creator or by We The People as a whole as we recognize them. The right to life, for example, involves not only securing protections against government infringements upon such (due process and so forth), but also an affirmative effort by the government to protect life (police forces, health care for those in government custody, etc.). There's nothing in the Constitution that would prevent a right to health care being recognized as deriving from a right to life and subject to the same set of protections and affirmative efforts to protect. Whether that would mean a government-provided health insurance program paid for by the government (i.e. We the People) or not is not a question that the recognition of such a right would answer, since there are many ways of providing for health care without the government being involved in its provision other than as a guarantor of last resort.

    So to sum up: You argue from a strawman (the notion that a right to health care means a right to government-provided health insurance) to state that there can be no such right. But that's just not borne out by the founding documents of our nation, which recognize that government has a role in protecting rights as well as a responsibility to not infringe upon them.

  13. You seem to be addressing me, though the number of points you make with no relationship to anything I said makes it hard to be sure.

    "Uhm, 'the government' is We The People."

    Uhm, no. This is a republic, not mass democracy. We vote for people who make rules and select others to run the government. The Constitution puts limits on their powers. We also elect state governments with different powers, some governed by the Constitution, others by a state constitution.

    E.g., We the People may not hold a plebiscite and have you summarily executed because chimps don't like penguins.

    Not that I can see how this has any relevance to anything I actually said in my previous comment.

    "And no current bill in Congress says that all Americans have a right to government-provided health insurance -- just that they have a right to purchase health insurance of their liking, and will receive subsidies to do so if they cannot afford it."

    A few nitpicks aside, this is true. But again I fail to see its logical relation to anything I actually said. Nor to how your original post started out, which talked about the Constitution and right-wing claims about that document.

    "Or as the Declaration of Independence states..."

    You started writing about the Constitution. The Declaration is a different document not legally incorporated into the Constitution.

    "You argue from a strawman (the notion that a right to health care means a right to government-provided health insurance) to state that there can be no such right."

    I argue from what you wrote. If it's not what you meant, blame the writer. You seem to be the one building strawmen. #1: I never said that there _can be_ no such right. I only claimed that an honest and competent Supreme Court can’t get it from the current document and body of precedent. I never denied the possibility of amendment.

    I said what I said in the context of the start of your post. That talked about judicial interpretation of the document in its current state. When the Republicans say, "There is no Constitutional right to health care," I have always understood them to mean just what you call my strawman. If you say we are talking about something else, this strawman is yours, for mischaracterizing the position you attacked.

    It is possible that the Supreme Court could usurp the role of the legislature and say the Constitution gives everyone the right to health care regardless of means (why not a pony while they're at it?). Important health tip: don't hold your breath. You need to look to Congress, not the courts, for what you want.

    You claimed that I was wrong in my initial sentence, citing the 15th and 19th. Perhaps you should have read the text yourself. Observe the 15th:

    "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." The 19th and 26th also use the "denied or abridged" phrasing.

    Here too, the Constitution speaks of the vote as something citizens _already have_ which the government may not "deny or abridge" for certain reasons. It is, just as I said, stated in the negative.

    You’d have done better to cite the 6th, as interpreted by Gideon v Wainright. But once again that mandate of material assistance is limited to someone in government custody accused of a crime. In a different comment in this same thread, you referred to precedent. I invite you to find one precedent of a court ordering financial aid to an individual _not_ in custody on the basis of the Constitution alone. If you can't, this is a Clue.

    Unlike health care, the right to keep and bear arms is explicitly listed in the Bill of Rights. So could the 2nd Amendment mean that the government must provide me with a subsidy to buy a gun if I can't afford one on my own? (This last question is at least as much for Sungold as for you.)

  14. Reminder: Repetition of right-wing talking points such as "we live in a republic, not a democracy" is stupidity, and will be deleted if it repeats. See posting rules. A republic is a representative democracy. So you can take that fucking talking point and shove it up your bungbole.

    As for your claim that the Constitution says what YOU say it says, not what the judicial authority says it says, that does not comply with the Constitution. You are again repeating right-wing talking points, i.e., stupidity.

    I will not address the rest of your comment because I've already addressed it. You appear to believe that Argument by Repetition means you win, or some bullshit like that. Discussion over.

    - Badtux the "Talking points are stupidity and against my posting rules" Penguin

  15. "As for your claim that the Constitution says what YOU say it says, not what the judicial authority says it says,"

    You yourself said, "There's no reason a court would decide that Medicare For All is any more unconstitutional than Medicare For Prunes[.]" I am honest enough to understand that you are not doing just what you (falsely) accuse me of: declaring that your legal reasoning is absolutely right even if a judicial authority does, after all, find such a reason even though you claim it does not exist. What I read you to mean is that after over forty years of failure to overturn Medicare, if there were a reason to do so, someone would have found it by now. Therefore there almost certainly isn't one. Right?

    I challenge you to cite any case where the judicial authority has said there is a general Constitutional right (i.e., not just for prisoners) to receive health care regardless of ability to pay. I consider not only the text but also the lack of such a precedent in the past 200+ years. On that basis I conclude that getting such a ruling out of the judicial authority has about the same likelihood as me beating Tiger Woods in golf without a handicap.

    If you think I'm wrong in my analysis, feel free to spend your time and money bringing such a case. Until you win that case, you're simply arguing by assertion that your opinion about how a court will rule in the future is better than mine.

    There is no ideology whatsoever behind my comments. I have already explicitly stated my agreement that Congress has complete power to pass some form of universal health care (which could include Medicare for All) under the Constitution. Does that sound like a right-wing talking point to you? Yet you seem to think I'm a right-winger. I'm not.

    "The Constitution means what five justices of the Supreme Court say it means" is also a mindless talking point. I think Bush v Gore was the most intellectually bankrupt Supreme Court decision in my lifetime. Nowhere does the Constitution give the US Supreme Court the right to interpret the meaning of Florida law. That is the job of Florida's own Supreme Court.

    It would appear that in your opinion, I am stupid for continuing to believe in the correctness of my opinion in the face of an opposite ruling by the judicial authority. I will console myself with being stupid like Breyer, Ginsburg, Souter, and Stevens, who also dissented from the majority ruling.


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