Rights and Responsibilities

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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46 Responses

  1. greginak says:

    I’ve never used the health care is a right argument myself. i don’t really care if it is a right, i don’t see that as relevant to whether we should finally do some national , universal health care. American’s love to talk about rights, its in our blood. Most people ( of any political stripe) don’t form their beliefs about rights based on lengthy philosophical work outs, but on what they believe is morally correct.

    I think people who make the heath-care-is-a-right argument are coming from a deeply moral view that it is wrong to not provide certain basic services which leads to death. That seems clear to me. Futzing about what is the proper level of care seems like a way to avoid the discussion of whether we should do health care. Of course different times and societies would have different definitions of what is a basic level of care. quibbling about the exact make up of the floor misses the point that we should have a floor.

    The supply of health care is not limited, the amount we can spend on it is. Since we spend far more per person then every other coutnry with a national health plan suggests that we have a shitty system that must be changed.

    PS The death panel talk was pure bull shit.Report

    • Mark Thompson in reply to greginak says:

      I agree with most of this (including that the death panels thing was a load of BS – it’s just that it’s BS that talk of “health-care-as-a-right” validates, however inadvertently). I guess my point is that the “rights” based argument is exceptionally weak and incoherent and winds up distracting from the much stronger arguments about costs and how much of a safety net we need to provide. This is particularly true because the rights-based approach immediately brings all these questions into play and, since we’re talking about creating a “right” with no analogue in American history, also makes any related reform appear more radical than it actually is.

      Another reason why it’s a strategically bad approach is that it ignores how absolutely essential the cost issue is. In fact, the rights-based approach actively encourages the more ridiculous claims made about government rationing – if health care is a “right,” how can government possibly restrict a given individual’s access to it solely because it doesn’t think the treatment is cost-effective? How can cost to the government be a consideration capable of denying you a supposedly fundamental right?Report

  2. Nob Akimoto says:

    If one were to take an extreme view of “right to healthcare” one could I suppose make the argument that the current system as it exists, is a 14th amendment violation by providing certain incentive structures that deprive non-employer and non-medicare covered people of their “privileges” through some esoteric argument that the massive distortion in the markets created by government intervention is by nature an unfair privileging of a select group at the expense of others. (Note that for the record, I do not think this is the case.)

    I am not so certain that your argument that “fundamental human rights have never been up to the democratic process” is a right one, either. I would argue instead that the progress of fundamental rights in America has been an evolutionary one, based as much on the democratic process as anything else. Certainly the rights we recognize today are significantly different than the ones recognized a hundred years ago, and those different still from those a hundred years earlier. In fact Americans have been extraordinarily comfortable with letting the democratic process define what “fundamental rights” or how fundamental fundamental rights are. Witness the nature of the torture debate, or the surveillance debate.

    However, it’s always been the case that “positive rights” like access to food, clean water, electricity, infrastructure and the like have always been more at the mercy of democratic processes and environmental factors such as the state of the economy. I think the healthcare as a “right” argument may in fact boil down more towards the belief that healtchare should be a public good, done without regard for market efficiencies, because it’s something that will create unacceptable outcomes if it were operated solely with the intention of maximing profit. For example people would freak if we suggested utilities should be allowed to cut off water or electricity from sparesly populated areas because it’s not a constitutional right.Report

    • Michael Drew in reply to Nob Akimoto says:

      Based on what other than the notion that access to health care is in some sense a right can we say that some potential market outcomes (including the one that exists) would be “unacceptable”? I suppose we could say that we believe that as long as the resources are available, as a matter of sound public policy all should have such access. But I would say that the distinction between that statement and the description of an accordingly conditioned right is insubstantial.Report

    • Michael Drew in reply to Nob Akimoto says:

      But I associate myself with Mr.(?) Akimoto’s argument that rights, even so-called “fundamental” rights, are certainly politically contingent. They are determined, and more protected or less so, depending on the politics extant in a society at a given time.

      Relatedly, one can say that the society should have a minimum level of provision of some vital service for all *citizens* as a fundamental principle, and be entirely responsible in not defining that level but rather stipulating that it will be subject to political determination. The initial move is not a matter of “getting around” any conceptual difficulty, and the subsequent concession is simply an obvious and inevitable nod to reality. None of the rights protected in the Bill of Rights are statically defined, but rather are fully dynamic.

      Mark is here clinging to a false theory of basic rights as static, immutable, quantitatively determined minima for various standards of living. But of course in citing the vast differences in medical care between now and this time last century, he proves too much, such that any conception of basic rights at all cannot survive such standard. But he himself endorses the concept. Rights as unconditional assertions, but with particulars contingent on the politics and condition of society, is an obvious, largely unproblematic, and unremarkable response to his challenge.Report

      • Dave in reply to Michael Drew says:

        But I associate myself with Mr.(?) Akimoto’s argument that rights, even so-called “fundamental” rights, are certainly politically contingent. They are determined, and more protected or less so, depending on the politics extant in a society at a given time.

        In theory, this is not true. In practice, it is unfortuneately true.

        To suggest that Jim Crow laws were somehow unconstitutional when Brown was decided but not when Plessy v Ferguson was decided makes absolutely no sense to me given my knowledge of due process. That said, in certain environments, democratic majorities can get away with violating the rights of individuals simply on the basis that it is a democratic majority and if the law in question is not too far off the political mainstream (i.e. same sex marriage bans), then, in many cases, judges will simply defer to the majority.

        I don’t know if that calls into account the nature of rights as much as it calls into account the shortcomings of our political processes, especially when our checks and balances do not check and balance the way they should.Report

    • I think there is a credible and coherent argument to be made that health care is a legitimate public good, although I’m not sure that I buy into it philosophically. But public goods and rights are two very different concepts and as a result the use of rights-centered arguments winds up devolving into incoherence, as I try to show above. The only way to bring these arguments back into coherence is to redefine what we mean when we talk about rights – and this, I have a big problem with, because it demeans other, far clearer rights by allowing that the scope of rights is subject to ordinary majoritarian processes. Frankly, the idea of putting the scope of free speech rights, or criminal procedure rights, amongst others, up to ordinary majoritarian processes scares the living crap out of me.

      The examples you cite, don’t really bolster the argument for health care as a right. For instance, even if you take the view that access to food and water are affirmative rights that government must guarantee regardless of ability to pay, there is at least an objective and more or less universal and timeless standard that you can set to define those rights – the amount of food and water one needs for basic sustenance are fairly constant; moreover, “basic sustenance” is itself a pretty easily defined parameter. Additionally, I’m not sure that we often really speak in terms of “rights” when we discuss whether government should provide electricity or infrastructure, so that doesn’t seem to make a very good comparison.

      And while it is true that “the progress of fundamental rights in America has been an evolutionary one, based as much on the democratic process as anything else,” I and others would argue that those fundamental rights always existed whether or not they were actually recognized and protected by the State. To me, women had the right to vote the moment the US came into being as a republican form of government – the government simply refused to recognize or protect that right such that they were unjustly prohibited from exercising their rights.

      But the bottom line is that nowhere is there a requirement that something needs to be defined as a positive right in order for government and society to have the authority and/or the responsibility to act. The rights-based approach is thus counterproductive because it argues for nothing more than a social responsibility/justice-based approach while ultimately devolving into an incoherence that is in my view counterproductive.Report

  3. Michael Drew says:

    Mark, same deal here as with the way in which having guns at apolitical debate infringes on the right ot free speech. it’s not the Constitutionally protected part of the right, but the larger right is infringed. Similarly, just as Roosevelt didn’t argue that the Four Freedoms were protected by the Con, but rather were inherent to people in a rich nations, so is the right to adequate health care an inherent right in an affluent nation a right that can nevertheless be (and broadly is under prevailing conditions) legally (which is to say, Constitutionally) denied. But it remains a right. The Bill of Rights does not provide our rights to us, but merely partially describes them and provides a floor under their legal protection.Report

    • But that’s just the problem – what is “adequate health care”? Saying that there’s a vague right to “adequate health care” doesn’t even establish a floor because what constitutes “adequate health care” is going to vary wildly from individual to individual.Report

  4. Freddie says:

    I think you’ve sort of answered the criticism your post represents in the post. Yes, I believe in a right to health care, but whether or not that right in enumerated in the Constitution is largely irrelevant to me., just as I believe in a right to drink coffee but don’t expect a coffee amendment, or need one. Rights are cobbled together over time, and the Constitution, and every other legal document, are wholly inadequate to the task of providing rights. (They are also inadequate to the task of guaranteeing rights, but that’s a different discussion.)Report

  5. Creon Critic says:

    The point of all this is that the rights-based argument for universal health care is a bad argument that, frankly, I don’t think a lot of its proponents truly believe when push comes to shove.

    My account of rights is different than yours, ok. I’ll even take the your arguments are “weak” and “incoherent” barbs. But, you don’t really believe what you say you believe – huh? I don’t see how your account of rights is so self-evidently, The Account of rights, and thus my differing account of rights is rooted in some weird mischief making.

    In another account, rights are merely claims that ought to be respected by some authority, maybe another individual, maybe a government, whatever entity is wielding power. We can judge amongst all these competing claims by looking at the interest of the claimer.

    Alternatively, say there’s some overarching goal, like justice or human dignity. Rights are an instrument for getting nearer to that goal. So, you have the right to an attorney because of an overarching principle of justice would be violated if you lose your liberty merely because you couldn’t afford an attorney. As others have mentioned, this is a floor, you don’t necessarily get the best attorney – but you still have a legitimate claim that ought to be respected to an attorney, and we should come up with an institutional arrangement to get you one. I didn’t understand how Ken at Popehat’s explanation for a right to an attorney gets to the “why” of the right.

    Similarly with economic and social rights, people have a strong interest in a broadly construed notion of their essential interests and human dignity. In this account noninterference is not enough, the institution wielding the power is held under an obligation to provide for the economic or social right – you don’t necessarily get the ideal, but you do have a claim that ought to be respected. There’s also the argument that civil and political rights on the one hand and economic and social rights on the other are mutually reinforcing and interdependent – this interdependence argument says things like literacy, nourishment, and health are important to meaningfully exercising the civil and political rights. I don’t see how an account of rights that doesn’t address itself to the economic and social circumstances around the individual can be sufficient – but I guess that’s why I’m not a libertarian or a conservative.

    Finally, I read you as arguing that economic and social rights are not justiciable, how does one go about executing these lofty ideas? It is difficult, and there many of the balances you mention to be taken into consideration – what does this mean in the context of a developing nation, what are the tradeoffs, is this cordoning off too much from the normal democratic process? And yet, South Africa and India manage to reach some accommodation by taking into account the limits of courts and the developing nation context – nothing American courts couldn’t handle.

    If I’ve only just proven the – your account of rights is incoherent – point, then I’d say that’s just my fault for writing poorly and mangling Thomas Pogge and a bunch of other rights theorists. As always, SEP’s entries on rights and human rights are a good starting point for coherently sorting out the competing definitions rights.Report

    • Look, I can buy the idea of affirmative rights; hell, I’d even argue (and have argued, by the way) that property rights are themselves a sort of affirmative, positive right. My problem is that even under an affirmative rights approach, the idea of a “right to healthcare” fails because there is no coherent standard for defining that right. I can see a “right to emergency treatment” as being coherent, but a generalized “right to healthcare”? Eeesh. Indeed, looking at the link you provide to the South Africa example, I see this:

      “The Court has adopted a restrained approach to the scope of permissible review of economic, social and cultural rights, confined to consideration of whether the government has taken “reasonable” steps to protect the right.[53] In doing so, the Constitutional Court has expressly rejected a more radical approach which would require the State to provide certain minimal standards of constitutional economic and social rights to all its citizens, since—

      [c]ourts are ill-suited to adjudicate upon issues where court orders could have multiple social and economic consequences for the community. The Constitution contemplates rather a restrained and focused role for the courts, namely, to require the state to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation. Such determinations of reasonableness may in fact have budgetary implications, but are not in themselves directed at rearranging budgets. In this way the judicial, legislative and executive functions achieve appropriate constitutional balance.”

      As a practical matter, the question of whether the government is taking “reasonable” steps to secure a vaguely defined “right to adequate x” is relatively meaningless. So far as I can tell, it is essentially no different from basic Chevron deference, meaning that as a practical matter the idea of a “right to adequate x” is almost always going to be meaningless. In the handful of cases where that right could be meaningfully enforced against the government, there’s no reason why the language of rights would be more useful than much simpler concepts of agency responsibility. Indeed, in the four South Africa cases cited, two appear based primarily on the fact that the government actively intervened to make life worse for homeless squatters and failed to act in a way that remedied these actions – in other words, it’s a fairly straightforward due process case needing no reference to an affirmative right to housing. In another of those four cases, it appears that the South African court applied principles that we would recognize as straightforward equal protection analysis to require permanent residents to be treated similarly to citizens. The remaining case required the government to provide certain HIV drugs to its citizens, which is indisputably a finding of an affirmative right – but even there, from the looks of things, they simply applied a mode of analysis that we would find indistinguishable from Chevron deference.

      The point is that even though they’re using the language of affirmative rights, in practice they’re applying concepts that are well within the scope of the existing American understanding of rights that do not require a separate finding of a special “right” to health care.

      Meanwhile, the idea that government need take only “reasonable” steps to secure rights is an idea that, if implemented in the US, would in effect allow – and in some cases require – the abolition of strict and intermediate scrutiny standards for government actions of dubious constitutionality. This, not surprisingly, bugs me.Report

  6. Dave says:

    I don’t see how an account of rights that doesn’t address itself to the economic and social circumstances around the individual can be sufficient – but I guess that’s why I’m not a libertarian or a conservative.

    If I recall, both Mark and E.D. have argued that social safety nets are a valid use of state power. I believe that as well and I think that there are genuine public interests in providing certain basic services to those who need them. I don’t see why holding this position would violate anyone’s libertarian sensibilities except for those leaning towards minarchism or anarcho-capitalism, at least how I understand the police power of the states.Report

  7. While I don’t believe non-emergency healthcare to be a Right and I don’t believe there is even an obligation to provide healthcare to adults, I DO believe strongly that we have a moral obligation to provide basic healthcare to children. I think I’ve outlined this here before, but what I’m talking about is 1 annual check-up, 2 dental visits, 1 eye exam and quality treatment for any sicknesses and/or injuries that may occur. I’m willing to put my money where my mouth is on this one and I would happily endure a tax hike to make this a reality (if need be). I guess I become a real bleeding heart sometimes when it comes to issues that affect kids.Report

    • North in reply to Mike at The Big Stick says:

      Bleeding heart nothing Mike. There’s a huge raft of cold calculated utilitarian rationales for supporting the health of children in the manner you describe. Children who receive poor health care have serious problems obtaining education and becoming healthy adults. Comparatively cheap fluoride treatment, for instance, on children’s’ teeth can prevent thousands upon thousands of dollars worth of adult tooth repair. It seems like a classic ounce of child prevention preventing pounds of adult cure.Report

  8. Kirk says:

    Shorter Mark Thompson: “Health care as a right” makes sense. But if I reinterpret it so that it makes no sense, then “health care as a right” makes no sense. But it still makes sense to me.Report

  9. Kyle says:

    A couple of unrelated things to address.

    Earlier Gregniak wrote, “The supply of health care is not limited, the amount we can spend on it is.” Setting aside other functional capacity and quality issues, I think this point along with the presumption that we can simply buy the health care we want ignores a rather critical component. Namely, that people have to choose to become doctors and nurses.

    So at the very least, both the nation’s supply – if it can be called that – of health care and ambitious reform efforts are constrained by the number of actual people who choose to and are able to become licensed medical professionals. We’re already experiencing a nursing shortage – expected to worsen – and worries of doctor shortages have cropped up lately. Small, out-of-vogue topics here, shortages of doctors and nurses have been par for the course in rural communities and especially on reservations for years, if not decades.

    No enumerated right compels the services of private citizens. So how do we reconcile the fairly serious way we treat our rights in this country (as contrasted with say South Africa) with capacitative limits on providing health care, however defined.

    This leads into the critique that comes out of Mark’s thoughts that discussion of a right to health-care is at best weak and at worse counter-productive. It’s weak precisely because it’s amorphous, emotional fluff. Which is why few people, if any, go any further to detail exactly what this so-called right would look like besides “morally right and better than what we have now.” There’s no coherent view among proponents of how this right would balance with others, what healthcare means, how it is defined, or anything that would give it some shape. I think if you asked 50 different proponents what a right to healthcare would look like, you’d get 50 similar very different responses.

    At worse, it’s counter-productive – and I think it is – because it forces a false dichotomy between “believers” who are good, kind, thoughtful people, who only want the best for our fellow citizens and “non-believers” who oppose all that’s good and righteous in the world.

    I’m all for moral intuition guiding political and personal beliefs but I also think chastising people for not arriving at the “clearly” correct moral view doesn’t make them all the more amenable to changing their minds/beliefs. So if the point is to change minds, change hearts, build a consensus that supports health care reform or more broadly a right to health-care, shouldn’t one be persuasive rather than shrilly condemning?

    As a final point, what’s the point of securing an unenforceable right? Wouldn’t success just highlight that we lack the conviction to make progress on a lofty and almost entirely aspirational goal. ?Report

    • Mark Thompson in reply to Kyle says:

      Thanks, Kyle, as always.Report

    • Jaybird in reply to Kyle says:

      Dude. Brilliant post.

      Yesterday, I was discussing the whole health care thing with a co-worker. I argued that if we had a system where the rich were able to get better health care than the poor, we will always (always) have a “health care problem” in this country. If the rich can get X and Y and Z and the poor can only afford X and Y, we will have a problem and people will scream about justice.

      I kid you not, he suggested that we provide Z to everybody.Report

      • My wife (the social worker) and I had a similar conversation last night.

        What I’m increasingly convinced of is that liberals would actually prefer to just take away Z from the rich, so that everyone has X and Y..Report

        • Certainly some liberals would. I wouldn’t say all or most do, but I think you’d have to be blind to miss the rather vocal group who are most horrified by wealth, inequality, and privilege.

          It’s an interesting value trade-off, to value equality to such an extent. However, I find the focus on soaking the rich, limiting privilege, and redistributing wealth to be well distracting, off-putting, and too often an end of itself rather than an attractive means to achieve a more helpful end.Report

          • But isn’t where the whole ‘death panels’ thing came from? Some liberals were suggesting that maybe spending all this money on people at the end of their life isn’t a good use of resources. But back to the premise Jaybird spelled out, if they have the money, so to speak, shouldn’t they get whatever care they want even if it only prolongs their life for a short period of time?Report

    • Nob Akimoto in reply to Kyle says:

      “No enumerated right compels the services of private citizens. So how do we reconcile the fairly serious way we treat our rights in this country (as contrasted with say South Africa) with capacitative limits on providing health care, however defined. ”

      …seriously? South Africa actually bothered to do a truth and reconciliation commission on the serious abuses of basic rights conducted by its own government. Here, evidently any attempt to do that is “civil liberties extremists playing politics with national security.”

      So it seems to me, if it’s okay to pick up random people and lock them up for years on end without a serious charge or hearing, it’s perfectly fine to compel doctors to get paid a little less to provide healthcare to a few people…

      By the metric of your entire post, it would seem to be that due process, habeas rights, freedom of religion, speech, equal protection of rights under the law, etc. are all “bad” because they aren’t attainable in an absolute sense.

      Would anyone really want to make that argument?Report

      • Jaybird in reply to Nob Akimoto says:

        “it’s perfectly fine to compel doctors to get paid a little less to provide healthcare to a few people”

        The problem with that trick is that it’s a trick that only works once.

        When I was a kid, grown-ups said stuff like “you’re smart, you should become a doctor! If you want to make a lot of money, become a doctor.”

        I don’t know what grown-ups tell kids now.Report

        • Michael Drew in reply to Jaybird says:

          That bubble’s already burst. Besides which, if we create 40 million new paying customers, there will be sufficient demand pressure to keep prices up.Report

      • Kyle in reply to Nob Akimoto says:

        Hold up, wait a minute.

        Bridging from a discourse on constitutional rights to the debate over torture and what not is a bridge too far. The South Africa example – though one could easily find more – is to point out the substantially different way we treat our constitutional provisions.

        SA’s constitution is long, lovely, and filled with provisions that American liberals would die for. Including, among others a right ­to an environment that is not harmful to their health or well-being; the right of access to ­ any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights; and the right to have access to adequate housing.

        However, Johannesburg is still quite polluted and has a distinct problem with providing adequate housing to all its denizens. There is a reason – after all – that District 9 was set there. So that comes back to a legitimate question, we take the things in our constitution very seriously in this country. Not perfectly well all the time, but certainly very well most of the time and if we’re talking about a right to health-care, how do we reconcile the ambiguities of that proposition with the past 210 years of Constitutional jurisprudence?

        Personally, I don’t think it’s ok to pick up random people and lock them up indefinitely without charges. I also don’t think it’s ok to compel doctors to accept less pay to expand healthcare coverage. I also don’t think it’s ok to compel teachers to accept less pay to expand educational coverage/offerings. I add the latter because it’s logically similar though nobody would dare suggest that because of the ludicrousness of the proposition. Moreover the question I’m raising is less whether the government can compel doctors to be paid less but whether the government could or should compel people to become doctors in the first place?

        Nor do I at any point am I making the absolutist claim you’re suggesting. I do think that negative rights are – on the whole – less messy, still very relevant, and easier to enforce without infringing on individual autonomy. This makes me reluctant to rush into recognizing more positive rights and quite honestly your response is part of the reason why.

        At no point are any of the concerns raised actually addressed. Who’s talking about compelling doctors to make less money? Who’s talking about truth commissions or its institutionalized alternative – the criminal justice system and congressional oversight?Report

  10. Kyle’s point about nursing and doctor shortages makes me think of a sort of an ancillary issue, which is the overuse of healthcare. I’m lucky in that my employer is a very large company with big purchasing power so we have top notch healthcare. What I see with a lot of my coworkers is that they are at the doctor for every little ache and pain and also a lot of stuff that I consider extremely optional. So it’s not really unforseen stuff. Added to that we have routine stuff like checkups and dental visits, etc.

    So ultimately the term ‘insurance’ is misleading because that’s not what we use our healthcare for. Car insurance is used when something unplanned happens. The way we use health insurance is akin to our auto insurer paying for oil changes, engine repairs and driving lessons. So what I think would be helpful when we talk about controlling healthcare costs is to get back to people paying for routine and elective healthcare out of their own pockets. I would think that would eventually drive costs down. (I keep having this vision of the town doctor on Little House on the Prairie that would provide healthcare for an affordable price and the townfolk would just pay him for it.) Let insurance cover unforseen and big ticket expenses like surgery, longterm illnesses, broken arms, etc and let people pay for routine medical care themselves.Report

  11. Jaybird says:

    The Little Red Hen is an interesting story, I find.

    Was the Little Red Hen violating the rights of the duck, the cat, and the dog? Food and water are a right, are they not? The barnyard has a social contract and denying food to others is a violation of that social contract, is it not? The Little Red Hen also benefitted from social capital that, for some reason, the duck, the cat, and the dog did not have… perhaps if the LRH did more to help the others when they were a duckling, a kitten, and a puppy, respectively, she wouldn’t have to take responsibility for them now. How much is the Little Red Hen’s selfishness actively harming the cultural dynamic in the barnyard?

    How hard would your heart have to be to deny food to hungry people?Report

  12. North says:

    Yuck. Positive Rights. I really don’t like them conceptually because to enforce them requires violating the negative rights of others which then of course adds layers of complexity into which corruption can wriggle.Report

  13. Rob says:

    External moral observers must be present to have a civil society. Be it god or a constitution it has to be external and free from momentary whims. There is a mechanism in the US Constitution to add positive rights in a concrete manner. This mechanism should be followed if people want to make health care a “right”. Baring that, since we all know the liberal concept of universal health care isn’t nearly popular enough to amend the Constitution no matter how great it is in the mind of socialist, it would be easier to use negative rights, like more laws governing insurance companies and reducing cost by limiting malpractice claims ect…Report

  14. Ryan says:

    “…whether there already exists an affirmative constitutional right that could be compared to an affirmative right to health care.”

    It’s not exact, but the right to a trial by jury is most certainly a positive right. The state has the authority to compel citizens to serve on a jury. And any economist will tell you time is money, so compelling people to pay for health insurance for others is not theoretically different (in an economic sense) from compelling them to provide jury service for others at the cost of their own time.Report

    • Mark Thompson in reply to Ryan says:

      Ken directly – and correctly – points out why this analogy fails:

      “Even rights that appear to be affirmative are only conditional restrictions on the manner in which the government may act. For instance, I have a right to government-appointed counsel if I am prosecuted for a crime. But that’s only because the government is choosing to prosecute me — if the government did not, I would have no right to counsel. Similarly, though providing me with due process of law costs money, I only have a right to it to the extent that the government decides to subject me to some proceeding or burden.”

      It’s a positive right, yes, but it’s a due process right that attaches only when the government is directly acting to deprive someone of a negative right. In other words, it’s necessary to the protection of a negative right vis-a-vis the government.Report

      • Ryan in reply to Mark Thompson says:

        This is why I said “not exact”. I guess our disagreement over how exact something needs to be remains, but trial by jury is a positive right. The government is obligated to give you something. So the Constitution has positive rights in it.

        There are others as well, I guess. The government is obligated to provide national defense, mint money, and so on. There are many places in the Constitution where the federal government is expressly directed to provide things for its citizens. Perhaps we wouldn’t say you have a “right” to defense by the military or a “right” to money printed by the US government, but the difference is pretty negligible.Report

        • Mark Thompson in reply to Ryan says:

          Ok, but for purposes of this discussion, no one is claiming that positive rights don’t exist at all (I’ve even commented upthread that I think property rights themselves are positive rights). So just simply saying that the Constitution provides for positive rights doesn’t address the core argument. And with regards to the point about the constitution requiring the government provide certain things, you note correctly that we don’t call these things “rights.” This is not a negligible difference if the pushback to this post is any indication, since my whole point is that health care should not be viewed as a “right” but as a “responsibility.” For purposes of this discussion, no one – no one – is arguing that government should not get involved with guaranteeing a minimal level of health care. My sole point is that the language of “rights” doesn’t make sense in this context and devolves into incoherence.

          We can define the positive right to a trial by jury – as long as there is a jury, the positive right is met. We can define the right to free speech – as long as government does not place any prior restraints on speech, the negative right is met. Where the negative right is met, it is infringed, although our courts will allow infringement of those rights in particular circumstances that can withstand strict scrutiny.

          We cannot, however, define the “right to healthcare” in any meaningful sense, just as we cannot define a “right to national defense” in any meaningful sense. We can say that government has a responsibility to act in good faith to ensure quality health care and national defense, sure, but we cannot define either as “rights.”Report

          • Ryan in reply to Mark Thompson says:

            I think most of that is fair, but it’s also a very large exercise in splitting hairs. Whether we can tease out the exact implications of a “right” to national defense or not, it remains that the government is the agent chiefly responsible for making sure I get enough of it.

            I think I’ve mentioned here several times that I find talk about “rights” kind of boring and impenetrable (because it’s fundamentally based on assertion – “I have a right to X”, “No you don’t”, “Who cares?”). So maybe I’m biased, but I don’t think we get any practical consequences out of figuring out whether there’s a “right” to health insurance or if it’s just something government is “responsible” for providing. What’s the material difference between those two things?Report

            • Mark Thompson in reply to Ryan says:

              In a specific or immediate instance, it may well be close to splitting hairs. However, as a procedural and/or generalized matter, I think it makes a pretty big difference – rights are inherently justiciable and subject to coherent standards that make them protected from democratic whims. So, for instance, the majority cannot tomorrow just decide that it is going to make it illegal to express certain views, no matter how unpopular unless there is a particularly compelling reason to do so that can withstand strict scrutiny/time,place, manner restrictions. Responsibilities – or at least what I’m terming responsibilities here (I’m not sure if that’s the most appropriate term, though) are inherently subject to the democratic process for purposes of defining their scope. If we confuse the notions of rights and what I’m terming responsibilities that are inherently subject to democratic processes, then we create an atmosphere in which “rights” are no longer inherently outside normal democratic processes. This is, I confess, a slippery slope argument, but it’s a slippery slope argument where I think each step down the slope marginally chips away at the notion of rights as being universal and inherently inviolable. What I find even more troubling is that the affirmative right to health care isn’t just being pushed as a vague “right,” but often as a “fundamental human right.” If this logic were to hold sway, that would make it subject to 14th Amendment incorporation. In instances where the affirmative right to health care conflicts with other fundamental human rights under the Constitution, how do we resolve conflicts between the two without undermining one or the other fundamental human right? If a doctor refuses to undertake a course of treatment for a patient and the government intervenes on behalf of the patient, does the right against involuntary servitude trump the affirmative right to health care, or vice versa? What if doctors went on strike and the government sought to break up that strike to protect health care as a right? Or what if we have an insufficient supply of doctors – can government force people to become doctors? More realistically, what about the situation of someone in a coma with a living will that asks to be kept alive as long as humanly possible, but where family members and doctors agree that the ethical decision is to cease treatment? These are extreme cases, to be sure, but the point is that we wind up diluting pre-existing rights with every new right that we add since the more rights you have, the more those rights will conflict.

              Moreover, as a matter of argumentation, I think the use of rights-based language for things that are not well-suited for such argumentation devolves into an incoherence that undermines the argument when a different, responsibility-based approach would be coherent and more persuasive. So, even if the practical difference between using a rights-based and responsibilities-based approach is negligible, the difference in persuasiveness is substantial. I think the resistance of seniors to health care reform is a good example of how this is – if health care is viewed as a right as Americans define rights (ie, near-absolute and inviolable), then Medicare cuts that are necessary to any decent health care reform are going to be viewed as violating that right.

              One last thing on the national defense/security issue. Even though it is not defined as a “right” within the constitution, I think Americans increasingly view it as such (see, e.g., http://publiusendures.blogspot.com/2007/12/repost-romney-didnt-say-that-did-he.html), with the result being a willingness to violate fundamental civil liberties in the name of national security. This is why I have such a problem with even thinking of certain things as “rights” even if we do not constitutionally enshrine them as such.

              Also, although you write above that “there are many places in the Constitution where the federal government is expressly directed to provide things for its citizens,” this is not technically true outside of the aforementioned rights to due process protections. Although the Constitution expressly gives Congress the authority to coin money, raise armies, and otherwise provide various things, the Constitution does not contain any language mandating that Congress actually exercise that authority. For instance, the same clause that grants Congress the authority to coin money grants it the authority to “borrow money on the credit of the United States,” yet no one would say that Congress has a Constitutionally-mandated responsibility to run a deficit.

              This is an important point in that a Constitutionally mandated responsibility would, as you note, be virtually indistinguishable from a right as a practical matter even if significant theoretical differences would remain.Report

  15. Bruce Smith says:

    Mark you have framed the question in rather fossilized terms. The insistence that a “right” to health care be argued in “rights terms” previously understood by Americans presupposes that Americans actually fully understand what a right is. It seems much better to me to call it a “norm” since the American Constitution is not cast on tablets of stone and the founders intended it to be a living, breathing and amendable document and not a fossil. It is for this reason of “norms” that the British deliberately avoided a written constitution despite drawing up a Bill of Rights in 1689 which the American Constitution made use of. The British have long since forgotten what was in the Bill of Rights in the belief that if a majority come to believe a certain “norm” should apply to their society as a conventional wisdom then it can be if thought necessary enshrined in law until such time it is believed to be out-dated, or anachronistic, and the law changed again. Clearly some laws or “norms” have remained in force, or active, for a very long time and will remain so. Also the British convention in drawing up laws based on “norms” is to be mindful of the interests of the minority. Laws, therefore, may contain exceptions which go against the law in certain circumstances and which are judged to be reasonably valid. The British adopt the viewpoint that if a tyrant is determined to go against the “norms” and attendant laws no amount of pointing at a paper Constitution document will deter the tyrant and it is up to the people to overthrow that tyrant in order to return to their previous arrangements. This, of course, is tantamount to saying that they will wish to return to their previous customs which is another way of thinking about “norms” and laws.

    Moving on to the idea as to whether a society through its government should make health care available to all despite some individuals lacking the ability to pay it is necessary to consider whether a “moral norm” is required. As a way of supporting the contention that it is a “moral norm” consider the way that males and females have sex with each other. The female does not make the male sign a legally binding contract that in the event of pregnancy he will support her and the child until the child reaches maturity. Human nature though has hard-wired us with Strong Reciprocity so that we are both Conditional Co-operators and Altruistic Punishers and all based on our natures being a mixture of “self-concern” and “other-concern.” We became hard-wired in this way because our genes stood a better chance of survival if we took care of each other through co-operation. Accordingly, the natural and innate human instinct to a woman becoming pregnant is that there is a “moral contract” for the male to support the mother and child until maturation of the child. The law reflects this through attachment of earnings for a male who does not live with the mother and child. This is a “norm” most moral and sensible individuals would support. They would also support, that in the event it is not possible for the father to support the mother and child, society should provide a financial safety net although this may be basic and conditional on mother and ultimately child obtaining work skills, etc.

    In the same way that a mother and child is made vulnerable without the support of the male it can be argued that since none of us contracted to be born into this world and we can fall on hard times through sickness, old age, or unemployment, we too are made vulnerable like mother and child and it natural that a society should follow its hard-wired instinct to make free health care available to such individuals as a “moral norm”. Our innate instinct to avoid free-loaders means that we adopt the sensible rule that all healthy adults able to work should contribute to the overall budget for the society’s health care system and we apply sanctions to those who refuse to pay. We accept that the budget may not stretch to offering very expensive treatments and it is necessary to have professional monitoring of the efficacy of treatment systems. We do believe, however, that refusal of treatments should be held up to democratic accountability.Report

    • Bruce:

      My disagreements about the usefulness of constitutional rights vs. traditional social norms aside, my point here is specifically that the use of “rights” as an argument for health care reform makes no sense. If more proponents of health care reform relied on arguments about norms and social responsibilities, etc. I would not have written this post. So, on this specific point, I think your disagreement isn’t with me in particular but with those who try to frame the debate as one of “rights.”Report

      • Michael Drew in reply to Mark Thompson says:

        Mark, you know that the majority of proponents do advocate in terms of compassion, justice, responsibility, obligation, whatever you want to call it. Ted Kennedy made much of the rights argument, but even he made most of his substantive points with these other references you prefer. The rights talk is almost always just rhetorical flourish, even though I believe it has some merit, because unlike you I see absolutely no danger in the dilution of our protected legal Constitutional rights from assertions by citizens of broader moral rights as they think they ought to be in society. I see that as fundamentally a straw man. Can you proved some evidence it happens — as some have pointed out, we’re a pretty ‘rights’-happy polity. Why the strong reaction when it comes around to this particular instance?

        But bottom-line, I think you’re overstating the extent to which this is actually a distinct argument used by proponents and not just a rhetorical strengthener that gets (perhaps over- or even somewhat mis-)used because of its broad and powerful affinity in our political culture.

        I know some people like to be sticklers about the use of language in politics. But we have to be at least a little bit solicitous of the demands of political communication. I don’t think anybody believes they are being told that they have a Constitutional right to some minimum health care that has been being denied them. Rather, they understand that what si being proposed is to extend that benefit to all citizens because we are capable of it — and to have it sufficiently securely in place that citizens *right* to expect it will not be easily revoked (as is all the assurance you can offer about you so-easily-defined right to free speech, etc.).

        Do you really believe that the protections of the First Amendment are endangered when it is suggested to citizens that they may have a moral right to a minimum of health care as long as this remains a rich society?Report

  16. Bruce Smith says:


    It sounds like we must agree to disagree about the value of written constitutions although my argument against them does place reliance upon written law. Having just finished reading Richard Beeman’s 2009 “Plain, Honest Men: The Making of the American Constitution.” it is clear that vested interests do play a strong role in determining the structure and content of constitutions. In the case of the American Constitution drawn up by wealthy white males the Southern States feared the Northern States banning slavery and the checks and balances agreed were a failed attempt to prevent this. Accordingly, it seems to me that it is also political and/or economic power that determines whether a particular right makes it into a constitution and not just rational reasoning alone. Votes for blacks and women being an obvious example. Given sufficient political clout there is no reason why health care should not make it as a right.Report

    • Michael Drew in reply to Bruce Smith says:

      And there’s no need to define it in concrete terms. We simply say it is something we have a right to basic care — not, crucially, a legal right (unless and until such a law is passed) — as long as the society can provide it. mark says we don’t. This is a public debate not a law school, there needs to be room for common understanding of terms. It’s not near as complicated — or pernicious — as Mark is so deeply invested in making it.Report

  17. Bruce Smith says:

    Michael. You are right. It is easier to think that as human beings we decide things based on selection between two approaches zero-sum and non-zero-sum (some or one winners, and all winners) with acknowledgment that one can shade off into the other. Thus we see merit in the competition of capitalism (zero-sum and absent monopoly and cartel unaccountability) making efficient if not widespread sustainable use of resources but see that a Public Good such as universal health care (non-zero-sum and absent bureaucratic unaccountability) should not be entirely subject to monetization, the ability to pay in the marketplace.Report