Let's continue this discussion here

From The Thinking Heads


Nick, as someone so libertarian-leaning (or just a flat out libertarian), I'm shocked that you'd seem to side with the originalist school of constitutional interpretation. I feel like rights are better protected under a more liberal standard. I'm especially shocked, given your propensity for arguing that the Ninth Amendment is NOT a vestigial appendage. Let's put some weight into the Ninth Amendment, yeah?

~JSK

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Define originalist, and then we may be able to get somewhere. You may recall my mentioning of Randy Barnett, a law professor at Georgetown. I highly recommend his book Restoring the Lost Constitution, in which he discusses, among other things, the Ninth Amendment and the privileges and immunities clause. Or, in other Barnett language, it should be the impulse of the Court to always presume liberty, not to presume government power. That is, the people should not have the burden to prove why the have a right. But the government must prove its authority to act when challenged.

Switching gears...

What does it mean to say that health care is a right? What is the government's obligation to ensure this right?

If a doctor gives me bad medical advice, has he or she violated my right to health care?

If I am unsatisfied with the government-provided health care, may I sue the government?

If health care is a right, and the government must by law provide it to all citizens, and it must do so equally under the law, must the government pay for the health care of rich people who could afford it otherwise?

And try this on for size: Obama doesn't need to call health care a right to do what he wants to do. It's not like you're going to see a case before SCOTUS considering whether Medicare is unconstitutional. Incorporating the language of rights in the discussion, to me, makes the other rights mean less.

META: Did we lose the comments on the other blog when you converted to HaloScan?

If so, I may need to re-make a couple of points. Namely: (1) Judges > democracy at restricting government power, and I'd agree with you that the system we've got works out pretty well (we laregly agree on that point you made about judges, I just wanted you to make it). (2) Postive rights enshrined in the constitution do exist, but they are not akin to health care. The difference is they are checks against government power. The right to trial by jury is especially important (speaking of which, did you hear Sarah Palin likes jury nullification?) in this regard -- we specifically tell the jury, presume that the government is wrong (innocent until proven guilty). (3) Brown v. Board -- another way the Court can expand freedom is to extend the privileges of the political community to those who have have been excluded. Brown is a condemnation of a government that has systemically violated the rights of millions.

-NTC


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So, I guess I'll have to repost my response to NTC's commentary...or at least something similar. Let me start by similarly praising Barnett's book, I believe it should be mandated reading for any law school class on constitutional interpretation. But I also believe that his argument cuts in my favor. He is correct in saying that the people should not have the burden to prove why they have the right that is at issue. In the law, sometimes it is nearly impossible to intelligibly discern an affirmative act from an omission. Taking this into account, one could argue that, instead of the State having to prove why it had the authority to act, in this case, it would have to argue why it had the authority to refrain from a certain action. This would be OK according to Barnett's standard and would support my argument nicely.

As for your questions regarding the "right" to health care, let me preface my responses by noting that it is incredibly difficult to delineate and describe the boundaries and inclusions of any given right. This is especially true for implied rights but even explicitly stated rights have been cause for much judicial pain. This is because, to paraphrase Dworkin (and to some extent, Nozick), rights are best understood in relation to other rights and in relationships between entities. The very abstract nature of a right does not lend itself well to simple description. Thus, your questions are valid, but, to borrow some legalese, they prove too much. Your questions could apply to any given constitutional right and they would be problematic despite our certainty with respect to having that right.

Thus, asking what the State's obligation to afford the right to health care is a good question. And I cannot profess to know the answer exactly. But compare this to Eighth Amendment doctrine, whereby the question has oft been asked, what is the State's obligation to afford rights to prisoners? It has gone beyond simply refraining from subjecting prisoners to cruel and unusual punishments and has evolved into a standard by which the basic needs of prisoners must be supplied by the prison. This is the analogy I envision.

I believe that if a doctor, acting in good faith, offers poor medical advice, there would be no cause of action. You of all people should be well familiarized with the State Action Doctrine, and it would be up to SCOTUS to decide if a doctor, acting according to a state-mandated health care regime, is a "state actor." If so, his refusal to treat a patient, or his gross negligence (perhaps recklessness, or perhaps a higher standard of deliberate indifference) would certainly give rise to a cognizable private right of action against both the doctor and the State according to 42 USC 1983. But this is not a shocking principle, Constitutional Torts arise everyday, mostly when police officers mistreat or beat suspects. Again, I think the analogy is apt.

Finally, this idea of the need to stop paying health care premiums. I will repeat my response from The Thinking Heads. If I am paying for health care and then Congress constitutionalizes mandated health care, I would be free to cease payments and jump on board with the minimum standards set out by Congress (and I do believe that these health care standards would involve the absolute bare necessities). However, I would also be free to continue paying for my health care, and I'd have incentive to do so if my health care plan is better than the State's. Thus it is like the right to be free from bodily harm. To protect that right (which is a recognized right couched in the 14th Amendment), the State provides us with a police force. But if we were wealthy enough, we could very easily hire private security guards to better protect us from harm. This would not be unconstitutional and there would be no problem with it.

~JSK

ps - please don't erase this post again...it's pretty close to what I wrote last time haha.
Also - the comments were lost when we switched over, unfortunately. Do feel free to repost any ideas.

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Sorry about deleting your post. Not sure what I did there.

I don't think I suggesed you mean that additional private insurance would be illegal. Though there are leftists who seem to think that it should be, and I do find that position quite repulsive. My point is more that I'm bothered -- and this doesn't just apply to health care -- when the state provides services to people who could otherwise afford those services, to people whose needs are indeed adequately met by the market.

You say that the government-run care covers the absolute bare necessities. Okay, Baloo. This may seem silly to you, but what are the necessities, and why are they necessary?

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I'd have to defer to someone much more knowledgeable in the medical field to answer those specific questions. I'm not sure exactly what would be covered, but at the very least, yearly physicals. ER treatment, I would assume. Perhaps very basic medicines like penicillin or other generic antibiotics. I'm not really sure, but that is not a policy/philosophy question. Your point, which is a good one for sure, is directed more at the practicality of implementing the right.

So basically, what I meant to say is that the government run care WOULD cover or SHOULD cover the necessities...but like a good Supreme Court justice, I would punt the tough question and defer judgment upon the question of what those necessities are.


~JSK