Press play to listen to the podcast audio or scroll to read the post
Podcast: Play in new window | Download
Is Healthcare a right? I’ll begin my answer to that question with the phrase, “Congress shall make no law…” Those are the first five words in the Bill of Rights – the first ten amendments to the Constitution of the United States. It’ll be clear shortly why I begin with those words…
There’s a lot of discussion boiling around here in the U.S. about rights. Basic rights – natural rights – human rights. Most certainly healthcare is part of that debate. Now let me be clear… I’m all for open discussion and debate. Those are two of the many things that make America great. Universal healthcare, the Affordable Care Act, possible revisions to it and the possible repeal and replacement of it should be part of that discussion and debate. That is the American way.
There’s a part of the healthcare and other political debates though, that drives me nuts.
…and that’s the widespread use of an extremely loose, sloppy, downright erroneous definition of the word “right.”
Western philosophy, dating back to the ancient Greeks defines rights in a negative sense. That is, a right forbids others from acting against an individual that holds that right. Notice the phrasing in the negative. Others – notably including the government – are forbidden from acting against the right holder.
...post continued below
Subscribe for exclusive content and updates
Someone else’s right does NOT compel me – or any individual – or the government – to DO anything. It only forbids me, or any individual, or the government from doing something to the holder of the right.
Now before I go on and provide a compelling set of examples of the negative nature of rights, let me be clear about something else… Positive rights do exist. The thing is, a positive right does not exist until it is created by a contract that is agreed to by all involved parties. If I sign a contract to provide some product or service to you, then – and only then – do you have the positive right to demand that I deliver that product or service to you.
Now back to the Bill of Rights. It’s far from the only set of examples that a right does not COMPEL, but instead FORBIDS, but it sure is a really, really good one.
Here’s the first amendment in its entirety: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
There’s that phrase again, “Congress shall make no law…” The first right in the Bill of Rights FORBIDS the government from getting into the religion business, or to mess with my free speech, etc. It DOES NOT compel the government or any individual to DO anything!
Now I don’t intend to parse every word of each of the 1st 10 Amendments, but I will review the key parts in each of them that address what the federal government cannot do. Again, remember the notion in Western Philosophy of defining rights in the negative, and take note of all the negative phrasing in the Bill of Rights.
- 1st Amendment: “Congress shall make no law…”
- 2nd Amendment: “…shall not be infringed.”
- 3rd Amendment: “…without the consent of the Owner,…”
- 4th Amendment: “…shall not be violated…”
- 5th Amendment: Forbids the government to accuse an individual of a crime without due process of law
- 6th Amendment: Lays out very specifically things the government is forbidden to do – Like deny an individual a speedy, public trial by jury, or to try an individual more than once for the same crime (double jeopardy), or to deny representation by a lawyer.
- 7th Amendment: Reiterates the fact that the government cannot deny a trial by jury (…”the right of trial by jury shall be preserved…”)
- 8th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (This is the full text.)
- I particularly love the 9th Amendment because it basically says there are a million other things the government cannot do. I’ll quote… “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” End quote.
- The 10th Amendment is similar – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That’s the full text. In other words, the feds can’t do anything unless the states or the people say it can.
As I mentioned earlier, the Bill of Rights is just one of a myriad of examples of the negative basis of rights. Rather than wade through additional examples, it’s more useful to use a different perspective and think through the implications to us all of a positive right to healthcare.
If I have a positive right to healthcare, that means some healthcare provider is compelled to treat me. My positive right makes it OK for me to command that another citizen must provide me with his or her time, effort and knowledge. Really? My doctor is my slave and has to do what I say?
And what if I need x-rays, medication and a set of crutches? I’m entitled to the time, effort and knowledge of the x-ray technician too? And I get to use the x-ray equipment that somebody else bought and paid for? And I can go to the pharmacy and just take the meds I need and the crutches I want – for free?
I don’t think so. Do you want to live in a country where somebody else is entitled to take your time, effort, knowledge and property without your express consent? Again, I don’t think so.
I’ll wrap this up by making a very clear and important distinction between a right and what is right.
So… Is healthcare a right? NO! The government is forbidden by the constitution to deny us healthcare – NOT to provide us with healthcare. The constitution also forbids the government to compel a doctor, or nurse or anybody to provide healthcare products and services to anyone.
Would it be the right thing to do to figure out how to provide healthcare to all Americans? Absolutely! Personally, I want to see it happen.
It’s just that the way we’ve tried to do it so far – dating back at least to the wage controls imposed by Franklin Roosevelt’s executive order back in 1942 – is a goat rodeo of epic proportions. The stunningly complex flood of the unintended consequences of sweeping government actions continues to increase the cost and decrease the quantity and quality of healthcare in the U.S.
…but all that’s a rant for another day.
Now get out there and implement your own vicarious.
Do it now and post that IV Score!
Join the discussion 15 Comments
This whole opinion article is contradictory. I thought it was satire at first honestly. For one all those rights you listed are both positive and negative-honestly its hard to have one with out the other anyways- but lets look: you have the right to free speech that is a positive, and the negative (the gov. Can’t take it away) could not exist unless you indeed have the right.
The 2nd, the right to bear arms is obviously a positive, saying it cannot be infringed upon, is a negative, sure, but that negative can’t exist unless you have the right to keep and bear arms- it would just be: no guns.
And yes, health care has already been determined a right in that no service provider can turn you down based on your ability to pay. So honestly the whole paying for health care thing is kinda pointless when they specifically state you will not be denied even if you don’t have insurance and can’t pay the costs: they still HAVE to treat you.
Insurance always screws over people that have it and those who don’t. Because those who don’t have it just don’t pay, and even those who have it don’t often pay the actual bill, just the copay when due at service (i, for one,have literally never paid for a bill sent to my house, I pay the copay at time of service and my deductable- almost all my Drs have told me to just ignore the bills bc they’ve already gotten my premiums , co pays, and insurance pay outs)where do they get the cover costs from that? Insurance premiums, deductables copays, taxes, etc, they just raise the costs! Mind as well make it one flat fee based on income for every one in form of taxes and everyone is covered for everything. Most people will save money and less people will die, or become seriously ill, seems like a no brainer win win situation to me…plus then you don’t have to worry about “shopping around” for something so critical as health- you know everywhere is required to provide the service regardless and you don’t have to worry about going broke to stay alive!
Although this poster appears to make a compelling argument using the foil of negative rights he misses the point and actually creates a red herring in the process.
NO ONE wants a doctor or X-ray technician to donate their time or ask that someone purchase equipment for their healthcare regimen.
What the ‘people’ (as provided for in the Constitution) are wanting is for their representatives to burden ALL taxpayers equally through taxation and fiat to provide them with healthcare. Quite a different thing actually.
Yes, they are approaching the problem as healthcare being a right but this is a prime opportunity to bring up that old saw of a Supreme Court decision Roe v Wade.
Roe was decided based on several previous SCOTUS decisions where a right not specifically enumerated in the Constitution was articulated as existing by virtue of a penumbra of these decisions, particularly a right of privacy or a right to be left alone.
This ‘shadow’ (that is what a penumbra is, a shadow of an existing body) was taken to the extreme in Roe and trampled all over the states 10th Amendment right to have reserved to them all rights not particularly enumerated to them.
When you permit a ‘right’ to be created based on the trashing of another right you divide the loyalties of the people. Most SCOTUS decisions have their detractors but in the end we as Americans go along with it. But Roe was a fundamental slap in the face of most mature Americans and the fact that it was pulled out of some Justices’ hat at the last minute and thrust upon the people makes it ripe for overturning.
Healthcare is being presented by its adherents as an extension of that same penumbra, a right not expressed but one that can be inferred based on a previously flawed opinion.
Healthcare is a necessity in the lives of people, just as food and shelter is. If the American people wish as a group to tax themselves to provide for this service, all well and good but DON’T pick MY pocket and tell me it is a right. It is NOT. It is a necessity and like all necessities, we must find a way to provide for them ourselves.
Since there is a significant crowd of people that are unable to or refuse to provide it for themselves, we must use our ingenuity as an inspired people to make this leap of the gap between costs and services. Is it single payer? That is government and that would lead to more abuse and bankruptcy if the country. That cannot be allowed to happen.
I do not know the precise answer to this problem but I DO KNOW that shoving this problem onto the public as a right under the guise of an unseen shadow that we are told exists by some old fart liberal judge is not the way to ameliorate those who would have to foot the bill. After all, it IS my money and my right in the pursuit of happiness to use it as I see fit, not some bureaucrat in DC.
Darrow…for the Prosecution
Larry – I’m confused… Seems to me that you and I are on the same side of this issue. My article makes it very clear that I believe healthcare is NOT a right. Several of the points you make in your comment repeat points in the article.
Thanks for providing some excellent additional insight that reinforces what I wrote.
I have never seen anything more simplistic and bizarre. Your approach to defining rights excludes every single public service, including policing, health, education, construction of roads, etc, etc, from being subject to a government obligation. So your argument, expanded to a social construction, means that the government can’t deny you the right to drive on roads, but it has no obligation to build roads. The government can’t deny you the right to be protected by police, but it has no obligation to provide policing services, etc. The story of education services mirrors your analysis of healthcare. I think you’re advocating for people to live in the jungle, because otherwise I don’t understand what am I getting back from the government for the taxes that I pay.
It’s not just my approach to defining rights, Victor. It’s the approach of Western philosophy going back to the ancient Greeks. And no, not one of the things you list is something that the Constitution compels the government to do.
The Constitution does enable Congress to pass laws to provide whatever kinds of services it decides to provide. That does not make them rights. It makes them laws. As I said in the original article, such things as police protection, healthcare, etc. may well be the right thing to do, but they are not rights.
I’d like to see this guy try to explain that the phrase “equal protection under the law” is not a promise the government will provide anything
Basing it all on Bill of rights is pathetic. Congress is to provide for the general welfare. Look in the main body of the constitution and you will see a bunch of things Congress is required to do for the people. Your argument would also mean that police and fire are not rights, nor is military protection.
I beg to differ, Blue perry. Yes, the Preamble to the Constitution does include the phrase, “promote the general welfare.” The critical point you missed is contained in the first three words, “We the people.” VERY clearly it’s “we the people” NOT the government that is ordaining and establishing the Constitution “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…” The Preamble, simply put, is a statement of the objectives that we the people hope to achieve by adopting the Constitution.
Ummmmm…. Have you read the constitution? I just went through it again and cannot find a single statement about what “Congress is required to do.” Please tell me which article and section lists such a thing.
The Constitution does indeed list “a bunch of things” the government is specifically allowed to do. (See Article I Section 8, for example.) Even with these, government is allowed to do, not compelled to do.
Police, fire and military protection also are not rights. These are three examples of things the government may do, not must do.
Why do people think the constitution is the start? It finished the promise of the rights bestowed by the creator life liberty and the pursuit of happiness in the Declaration of Independence. Without a country, no need, for a constitution. We hold these truths are self evident that all men are created equal and bestowed by the creator with certain unalienable rights life liberty and the pursuit of happiness. So. from the beginning the rights are from the Creator. Get it. Chapter 1. So to say it is not in the constitution is completely incorrect.
6th amendment promises the government will provide every defendant a speedy public trial. This is supposed to be provided by the government in every instance. In your attempt to prove your premise, you’ve twisted the meaning nearly beyond recognition.
Also nobody says “healthcare is a right” because they thought its in the US Constitution.
Also, a Medicare-for-All plan would obviously reimburse people for their goods and services. So no its not slavery
Okay, so let’s look at the 6th and 7th amendments-
6th Amendment: Lays out very specifically things the government is forbidden to do – Like deny an individual a speedy, public trial by jury, or to try an individual more than once for the same crime (double jeopardy), or to deny representation by a lawyer.
7th Amendment: Reiterates the fact that the government cannot deny a trial by jury (…”the right of trial by jury shall be preserved…”)
Note that if the government can’t deny an individual a speedy public trial by jury, that compels the government (as well as 12 citizens) to provide that jury for the trial.
Same with if the government can’t deny an individual representation by an attorney.
Neither juries, nor lawyers are free. Those are rights that compell action that must be paid for by the government.
Actually the 6th is a restriction (again) on government. If suddenly all the lawyers disappeared, the government could not continue with the case against you, because your “right to a lawyer” means that the government can’t railroad you through the system without representation (in theory).
But the current constitution is not the only law of the land. The Declaration of Independence was also a law document signed into being as the first law of the land by the representative Congress that it created. Unlike our first Constitution which derived its power from the Declaration of Independence, the Declaration of Independence was never repealed in favor of our current Constitution, rather our current Constitution also draws its authority from it as well. And how does that start? “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.”
Ummmm… NO! You’re just mistaken. The Declaration of Independence is a statement of why the colonies felt justified in severing ties with Great Britain. It says ABSOLUTELY NOTHING about how the United States will be governed. The Constitution, a totally separate, LEGAL document, does that. Think…
No, those things law out the rules of prosecution. If the government cannot abide by those rules of prosecution (for example if for some reason a jury could not be found), it cannot proceed with the case. The onus is on the government at all times to abide by the rules to ensure that citizens are not unjustly deprived of life and liberty.