Implications of A Civil Right To Healthcare (Part I)

Posted on September 23, 2009
Filed Under A right to healthcare |

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Is healthcare a right?

DrRich has visited this question before, but it keeps being raised by readers of this blog, some of whom have decidedly settled views on the matter (either to the affirmative or to the negative), and who angrily accuse DrRich of having the wrong view (that is, either to the affirmative or to the negative). DrRich is sorry to have confused so many people regarding his stance on this important question.

So, is healthcare a right? Well, to paraphrase the last president who was widely held to be a paragon of nuanced speech (who, Lincolnesque, once noted that the truth of some assertion or other “depends on what the meaning of is is”), it depends on which meaning of “right” is right.

You see, dear reader, when you say “Healthcare is a right,” or, “Healthcare is not a right,” the accuracy of your statement entirely depends upon which kind of “right” you are invoking.

There are several.

For our purpose, we can limit our discussion to the two most commonly invoked rights: natural rights, and civil rights.

Natural rights (also called inalienable rights, or God-given rights), are rights such as those enumerated in our Declaration of Independence, to life, liberty and the pursuit of happiness. Natural rights are rights granted equally to all people by the Creator (or by “nature”), and cannot be legitimately taken away by any mere governmental authority. (Obviously, while these rights indeed can be taken away by a government through the exertion of violence, or the threat of violence, such behavior is inherently illegitimate since these rights are inalienable.)

It ought to be noted that a natural right is “inalienable” only to the extent that a critical mass of the polity accepts the overarching primacy of a natural authority that is inherently supreme to any organization which mankind can establish.  This fact implies two things. First, inalienable rights will change during the course of history, as the polity changes its belief in what the Creator intends. (For instance, the divine right of kings, a right defined specifically as devolving directly from God, has today generally lost its legitimacy - at least in most quarters.) Second, in a system where the existence of a Creator (or any authority higher than the government) is formally denied altogether, there can be no natural rights at all. Indeed, when conservatives and progressives fight over  putting God back in to (or keeping God out of) civil discourse, DrRich asserts, they are actually fighting over whether such a thing as natural rights really exist.

In any case, one of the fundamental characteristics of natural rights is that (because these rights are granted equally to all people) the natural right of one person cannot infringe on the natural right of another. Therefore, for instance, it is not possible for Paul to have a natural right of any sort that creates an obligation upon Peter’s time, energy, or property.

So when conservative Americans say that healthcare is not, and cannot be, a right, they are invoking natural rights. And in this context they are completely and unarguably correct.

There simply cannot be a natural right to healthcare, since guaranteeing such a right would require that some central authority be granted the power to infringe on all the other natural rights of its citizens. Such infringements would certainly begin with the confiscation of one’s personal property,* but would quickly devolve to all manner of constraints on an individual’s pursuit of happiness in the name of securing adequate healthcare for all, including one’s exercise habits, modes of transportation, eating habits, recreational pursuits, body mass index, sexual practices, right to bear arms (or other implements that may produce the need for healthcare expenditures), etc., etc. Indeed, for anyone of an extreme socialistic bent, who wishes to establish government power over the individual to the fullest extent possible, granting a natural right to healthcare would be the quickest way to accomplish it.

Thus, when conservatives say there is no right to healthcare, they are actually referring to a natural right to healthcare, and they are absolutely correct. There is, and can  be, no natural right to healthcare.

Civil rights (also called legal rights or statutory rights), on the other hand, are rights conferred upon certain individuals, through the offices of a society, a government, or a belief system, by means of statute, custom, or social dogma**. While natural rights are critically important (since they provide the foundation upon which a legitimate government can be established), civil rights are also important. Our Founders recognized the importance of civil rights when they provided, for instance, the right to be considered innocent of a crime until convicted by a jury of one’s peers.

Because civil rights are created by man-made institutions, there is nothing inherent about them that prohibits the civil right of one individual from infringing upon the civil rights (or, for that matter, natural rights) of another. (Even the right of a criminal to be considered innocent until proven guilty tilts the scales in favor of the criminal and against the victim.) In all cases (well, most cases) any infringement on the rights of one citizen by the rights of another is meant to do good. In general, civil rights are conferred to redress past grievances, or to create more equitable outcomes.

So, a fundamental characteristic of a civil right is that it generally is not granted equally to all people, but rather, is conferred upon one group of individuals at the expense of another, in the name of achieving social justice.

(Identifying aggrieved groups upon which to confer new civil rights is indeed the chief exercise of progressive Americans. The only place there remains any room for debate on this point is whether their purpose in doing so is actually to achieve perfect social justice, or rather, to purposefully grow an all-powerful central government which has final authority over all aspects of every individual’s life. DrRich suspects that many if not most progressives strive for the former, though if their efforts at leveling are successful, what they will achieve is the latter.)

In any case, it is entirely feasible, and even legitimate, to declare healthcare to be a right, if by “right” you mean a civil right. Because it is within the purview of civil government to do so.

And in fact, DrRich reminds his conservative friends, this has already happened. Healthcare is indeed a right, but not because all people have a natural right to healthcare (since clearly we do not), but rather because of the BOSS rule (Because Obama Says So). In strong support of this BOSS ruling, furthermore, our duly elected representatives in Congress - from both parties - agree, by their words and deeds, that Americans indeed have a right to healthcare. (If you doubt this, read some of the Republicans’ proposed healthcare reforms.)

You can get angry about it if you like, you can rail about it all you want, but there it is. Whatever natural rights our Creator may or may not have endowed upon us, we now have a civil right to healthcare.

And now, DrRich must urge his conservative friends, not to get over it, but to get with it; to do what they claim they are good at doing (and what DrRich, also being a conservative American, usually tries to do), which is, to analyze the established facts objectively and non-emotionally, in order to see how the civil right to healthcare can best be directed toward useful ends; in this case, toward the end of upholding (rather than tearing down) those natural, inalienable rights acknowledged to us in our foundational documents.

In his next post, DrRich will attempt to describe how we might approach this question.

* When Jefferson composed the preamble to the Declaration of Independence, he used as a model the Virginia Bill of Rights (drafted by George Mason). The Virginia document enumerated inalienable rights as follows: “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” Jefferson shortened this to “life, liberty and the pursuit of happiness” not because property rights were unimportant or “alienable,” but rather, because at that time it was commonly understood that the pursuit of happiness included the inalienable right to acquire, possess and dispose of one’s own property. Leaving out the explicit mention of property rights in the Declaration, then, was purely a stylistic move, and was not meant to imply that the government ought to hold any degree of power over the disposition of personal property. Which demonstrates that being screwed by style over substance is not a new phenomenon for us Americans.

** An example of social dogma is: The elevation of “diversity” to the status of uber-virtue, to which all the more classic virtues (such as faith, hope, charity, love, prudence, temperance, fortitude, etc.) are now subordinate.

Comments

5 Responses to “Implications of A Civil Right To Healthcare (Part I)”

  1. Me on September 23rd, 2009 10:54 am

    “It ought to be noted that a natural right is “inalienable” only to the extent that a critical mass of the polity accepts the overarching primacy of a natural authority that is inherently supreme to any organization which mankind can establish.”

    I don’t know why you bring up the concept of a deity here. We the people are superior to the government, and we bestow rights upon ourselves.

    “So when conservative Americans say that healthcare is not, and cannot be, a right, they are invoking natural rights. And in this context they are completely and unarguably correct.”

    Life being a necessary prerequisite for all other rights, everyone is entitled to reasonable measures to safeguard it. None of the other rights you might come up with, no matter how you categorize them, mean anything if you’re dead.

    “There simply cannot be a natural right to healthcare, since guaranteeing such a right would require that some central authority be granted the power to infringe on all the other natural rights of its citizens.”

    We already do this. It’s called the draft, and it infringes on some people’s rights (often killing them) in order to secure the rights of others.

    More commonly, though, the military accepts only those who sign up voluntarily, and it provides appropriate remuneration for their services in preserving the rights of the rest of the populace. It seems to be working well for them - why can’t the same concept apply to the health care system?

  2. L-E on September 24th, 2009 1:53 pm

    Then there is the question of what types of healthcare are to be included in this civil right, similar in some ways to a state having to decide what the coverage requirements are for health insurance policies in that state. Will treatment of conditions such as infertility be included? Will everyone have the right to receive any treatment option for “free” regardless of the expense associated with it?

  3. L-E on September 25th, 2009 9:51 am

    My impression from what I hear in the course of my job is that this right is widely believed to include a Santa Claus with a no-limits cornucopia of healthcare options in his bag. In a way, the unrealistic expectations remind me of the go-go years in the mortgage business and your previous post about a possible healthcare bubble.

  4. ruralcounsel on September 25th, 2009 4:09 pm

    “Second, in a system where the existence of a Creator (or any authority higher than the government) is formally denied altogether, there can be no natural rights at all. ”

    As an agnostic, if not atheistic, conservative, I reject this conclusion. As alluded to by the first comment, the individual is a higher authority than the govenment. There is no reason a natural right should hinge upon the concept of a deity.

    “(Even the right of a criminal to be considered innocent until proven guilty tilts the scales in favor of the criminal and against the victim.)”

    But in a criminal trial, the “victim” is the State, not the actual victim of the crime. That is why the prosecuting attorney is a State Attorney. A true victim has no right to insist on prosecution, or right to participate in the trial, or any rights in the sentencing phase. So that tilting has no influence on the victim’s rights, since by definition they have none.

    The utilitarian theory of criminal punishment actually says that it is irrelevant whether society punishes the criminal or someone innocent of the crime, because it is best for society that the real result desired is deterrence, and that is accomplished no matter who we punish. This elevation of the goals of society over the principles of justice is not all that dissimilar to what is happening in the healthcare debate.

    If your point is that the government and those in power always have the ability to choose the rules, and in the process, the winners and losers, and you want to call that a ‘civil right’, then fine. But acknowledge the capriciousnous and arbitrariness of it.

    It is this that results in the call to return America back to a constitutional government, which it can scarcely be said to be now. The religious right may put a patina of christianity on it, but the principals stand alone.

    “And now, DrRich must urge his conservative friends, not to get over it, but to get with it; to do what they claim they are good at doing (and what DrRich, also being a conservative American, usually tries to do), which is, to analyze the established facts objectively and non-emotionally, in order to see how the civil right to healthcare can best be directed toward useful ends;…”

    Realpolitik in action, I suppose. Permit me to suggest that there is an alternative, which in fact does result in getting mad. It is the same choice our ancestors had back in 1776 when confronted with arbitrary power. The threat of open revolt is a valuable ace-in-the-hole. Look how perturbed the established media and political class is over the comparatively miniscule heated rejection of their authority in the tea parties and town halls. A couple of citizens utilize their right to open carry at some protests, and the liberals require a change of underwear.

    Anger has its utility, and properly channeled, can be extremely effective to affect political change. Given my druthers, and a magic wand, I would set this whole nation back politically (not socially) to 1913, before the 16th amendment, and before Roosevelt destroyed the right of contract. And, were it not for the progress society has made racially, I would do it without an ounce of regret or hesitation. There comes a point at which it is better to just pull the whole thing down and start over.

    We are going to founder the whole nation attempting to fulfill the wish list of a pervasive faction of society that is unable to comprehend our financial limits, or the limits imposed by individual liberty. They have been remarkably successful at getting the productive members to pay for a host of expensive give-aways, for which they then take political credit. That era is ending, and good riddance.

  5. The Contrarian on October 6th, 2009 7:58 pm

    Perhaps the descriptors of rights which is more instructional are liberty (negative) or entitlement (positive) rights. Negative rights are ones which confer “freedom from” while positive rights generally describe “rights to”. The Bill of rights resides essentially exclusively within the negative rights realm.

    All rights are associated with associated duties. The duties associated with negative rights are generally the duty to leave others alone. Thus,your right to free speech requires nothing of me or anyone else. The enforcement costs are negligible.

    Entitlement rights are a different story. The associated obligations are impossible to define. Once you begin to describe a right to health care, you need to define the scope of the entitlement. You need to decide how much, for whom, and under what circumstances can or should it be withheld. You enter into a never ending world of coercive transactions which results in charging the state to violate our liberty rights in order to fulfill our entitlement rights.

    For an excellent background liberty rights and entitlement rights, see “Simple Rules for A CompleX World” - Richard Esptein - University of Chicago.

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