Wednesday, August 12, 2009

Health Care is a Constitutional Right

I get sick and tired hearing the endless prattle about how nothing in the Constitution guarantees that Americans have the right to health care. Take this exchange between a self-described “dumb southern Iowa redneck” (his words, not mine, but if the shoe fits . . . ) to moderate Republican Chuck Grassley.

From Politico:

“I see nowhere in the Constitution where health-care is a right.. . . I want to hear it from Obama, I want to hear it from Pelosi, about how this is about ‘We the people.’”

I like that last thing at the very end of his rant because it is so deliciously ironic that he cites a passage from the Preamble to the Constitution. From the very thing that gives the federal government the responsibility to guarantee health care to its citizens.

So what, I ask, is the argument against having, as a constitutional right, the right to health care when it is right there in the Preamble that one of the purposes of the constitution is to “promote the general welfare” of the people.


promote the general Welfare”

“This, and the next part of the Preamble, are the culmination of everything that came before it — the whole point of having tranquility, justice, and defense was to promote the general welfare — to allow every state and every citizen of those states to benefit from what the government could provide.”

So, dumb Iowa redneck, is the question answered?


Anonymous said...

Except, of course, that "the general welfare" does not mean what you want it to mean.

In modern parlance, "the general welfare" would be "the common good". The notion expressed is that the government was supposed to act for the benefit of the whole people, not an aristocratic class like the British system that had been thrown off only a short time before.

And what you also neglect to consider is that the Preamble is a statement of principle -- the powers of government are then set forth in the rest of the document. And it is highly arguable that there is anything in the powers delegated in the rest of the document that allows for a government takeover of health care -- especially if the ultimate system is one in which the government will determine what health care you may get, may not get, and are required to get. There suddenly arises a serious infringement upon the liberties of the American people when those decisions are made by government, become appealable only to the government, and deviation from them is punished by the government.

Hal said...

Finally, a well-reasoned comment. My point is that the Preamble is a statement of purpose. That the Constitution was written in order to carry out the things enumerated in the Preamble.

Common good is not health care?

I have also heard the argument that health care is constitutionally guaranteed by the equal protection clause of the 14th Amendment.

After all, if one person has to die because they don't have health insurance or they have a pre-existing condition, but another person with money gets to live, now THAT is the ultimate in unequal treatment.

El Jefe Maximo said...

If you want to take this view, you would do better to rely on the general welfare clause found in Article I, § 8 of the Constitution, which provides that Congress may tax and spend to provide for the common defense and general welfare. In any event, you would do well to try to make your argument by tying the phrase in the preamble to Article I § 8 or some other portion of the Constitution. The Preamble “. . . indicates the general purposes for which the people ordained and established the Constitution, [but] it has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments." Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).

In any case, accepting the view that either the Preamble or Article I § 8 establishes health care as a fundamental right asks too much of the language. First, there is no agreement on what the general welfare is -- Congress must determine it. Moreover, much of the rest of the Constitution is taken up with enumerating what Congress may, and may not do. If the general welfare clauses were as wide as you say, why bother with that?

Finally, I find it impossible to derive the concept that medical care is a fundamental right under our Constitution in any case. It was self-evidently not considered so at the time the Constitution was adopted and no amendment has declared it such, not even the Fourteenth Amendment. You can only get to such a place by the courts themselves deciding that such a right is fundamental, and even the Warren Court liked to preserve the fiction that the fundamental rights it declared had some basis in the Constitution itself. In any case, you’re at least one, more probably two or three Supreme Court appointments away from such a remedy.

Anonymous said...

I think people would be wise to read "Commentaries on the Constitution" by Supreme Court Justice Joseph Story circa 1837. They might find that the "General Welfare" clause pertained to the general welfare of the 13 states, in as much as keeping them safe from interference from foreign entities. It had nothing to do with individuals and certainly nothing to do with guaranteeing anyone healthcare. Think about it. How would such a foolish idea be accomplished back then?

There is only one thing the federal government was supposed to spend tax money on and that was "to provide for the common defence". There is a large difference between "promoting" and "providing".

Anonymous said...

There may be no right to health care in the Constitution although I think that "the general welfare" wording of Article I could clearly include health care. However, there is definitely no prohibition in the Constitution against recognizing health care as a right. Amerendment IX states, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." In other words, people can have rights not mentioned specifically in the Constitution.

Anonymous said...

Article 1 sec 8 gives power to the Congress to collect taxes to provide for the common defense and general welfare of the "United States".If the intentions of the framers were to collect taxes to provide the "specific" welfare of each and every citizen of the United States, they would have said as much.

Anonymous said...

Art. 1, 8, 18
"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers..." Our Supreme Court in McCulloch v. Maryland interpreted this clause to mean: so long as the ends be legitimate, the means are appropriate so long as there is no express prohibition in the Constitution. Well, there is no such prohibition and yes, General Welfare (Art. 1,8,1) would seem to include the health of the United States. Do you have a right to have a National Bank created by Congress? The Court in McCulloch held that legislation creating the National Bank was okay. In a similar way, the creation of health care legislation would be an appropriate and constitutional means of action toward Congress's enumerated power to provide for the general welfare of the United States.

Anonymous said...

I do agree with the person who wrote this. The common good also means that they get health care. Hypothetically, telling a crippled man that he needs to quit begging for a splint is just stupid.

Anonymous said...

[quote]Common good is not health care?[/quote]

Common good is subjective. There are a lot of things that could be for the common good. Outlaw gambling, alcohol, tobacco, sugary or fattening products. The government could tell you what to eat, when to sleep, how to spend your time.... it is a slippery slope

[quote]After all, if one person has to die because they don't have health insurance or they have a pre-existing condition, but another person with money gets to live, now THAT is the ultimate in unequal treatment.[/quote]

No, that is captilalism. There are lots of things in this country that one person has that another doesn't have because of wealth.

I am not an anarchist in the hills of some unnamed square state. I am a moderate in the heart of liberal america (NYC). I think that the 10th ammendment should apply:

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.

Anonymous said...

The constitution explictly states a right to bear arms. However, no one has interpreted this to mean that the government should buy guns for everyone (or F16s for that matter).

Also, to say that individuals have a right to health care is problematic. Because what is health care? It is a service provided by doctors. So, anyone claiming a right to this service, is claiming doctors as their slaves. Doctors could be punished for not providing this service, because it is a "right"

Americans would obviously not tolerate such an implementation. Therefore we will pay the doctors with taxes. But the principle remains.

Hal said...

Anon, the Constitution explicitly states a right to bear arms to the extent that a militia is a useful thing to have from time to time. That little fact has been conveniently ignored by everyone except once in a 1930's Supreme Court decxision that decided that someone should not have the right to saw the barrel off of a shotgun because it did not promote the cause of a militia.

Ignored by every Supreme Court until the present one that ignored the whole "militia is necessary" thing.

My claim is that if the right to bear arms is to protect us from ourselves then we need the right to bear Uranium depleted ammunition, TOWs, and short-range atomic weapons in order to be competitive with a significant opponent.

But I doubt you'd get a Supreme Court to agree with that.

Health care is not a service provided by doctors, Anon. That is not what health care reform is about and you know it. It is about the right of every American to be able to pay for health care without bankrupting themselves. About the right of every American not to have to decide between eating and getting their blood pressure medication.

You are either a part of the mass of people who are profiting from the suffering and death of Americans or part of the mass of people who have become seriously deluded by those who are.

- The Independent Libertarian said...

As I read through the comments I see that none of them are historically corret. Those on the right claiming that there is no right to health care are wrong in that they are assigning a power to the federal government that our founding fathers specifically denied it. That is the power of "enumeration of unenumerated rights".

The Federalist fought against the bill of rights not because they wanted the government to have that power but because they said it was not necessary. The 10th amendment specifically denied any power to the federal government that was not granted to it within the constitution - so the federal government simply would not have that power. Also, they reasoned, that if they started enumerating certain rights then the constitution would end up being interpreted as a laundry list of rights.

The Anti-Federalist did not want the federal government to have the power of "enumeration" any more than the Federalist, they just wanted to make sure certain essential liberties were not infringed. They reasoned that there were already certain rights enumerated in the constitution (Habeous Corpus) and therefore adding a few more would not make the "laundry list" anymore likely.

Looks like the Federalist were right. Conservatives read the constitution as a laundry list - just like our founding fathers did not want.

On the other had, the liberal think that because something is designated as a right that it cannot be infringed upon. There is actually no such thing as a completely uninfringable right. Every right has it limits. Those mentioned in the bill of rights have only very specific limitations - but they do have them.

Also, both sides seem to think that whatever the "group" thinks is a "good idea" should be forced upon everyone. This again is way off base of what our founding fathers knew to be true. This type of government would be a pure democracy - not a republic. In a pure democracy whatever 51% of the poeple want is law. In a rebublic such as ours there is certain power given to the "majority" but individual liberties still reign supreme.

The real argument about the "Health Care Right" is this:

Do you, as an individual, have the right to force another individual (by joining into a group) to pay for your health care?

I say no, but there could certainly be arguments on both sides of the issue. At least those arguments would constitutionally correct.