The Constitution and the “Right to Health Care”

Much of the opposition to ObamaCare is going to happen in the courts, where the National Federation of Independent Business (NFIB) has joined a growing number of states to assert that the federal government’s mandating purchase of health insurance is beyond its constitutional powers. How will the Administration respond? Well, the Left has often promoted the idea that citizens have a “right to health care,” so one can reasonably anticipate that the Administration will weave this argument into its defense of ObamaCare.

Good! Libertarians and conservatives are repelled by the notion of a “right to health care.” But having read the Constitution, I believe that we might be better off if we embraced the “right to health care.” It just looks quite different than its leftist advocates believe.

Perhaps the Constitution is perfectly willing to allow people a “right to health care,” and it’s in the Ninth Amendment, where Robert Bork found only an “inkblot.” The Ninth states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

So, if you claim a “right to health care,” there’s nothing in the Constitution that denies your claim. Critically, once health care is defined as a right, the entire weight of the Constitution comes down against federal (and perhaps even state) control. Where the Constitution enumerates rights, it’s pretty clear that the Founders’ bias was that your ability to enjoy any right was dependent on Congress not meddling in it. The primary example, of course, is freedom to practice the faith of your choice without interference by the federal government, guaranteed in the First Amendment.

What we call “health care” today did not exist in the 18th century, so there was no incentive for the Founders to enumerate a “right to health care” and specifically protect it from federal interference. Officially established churches, however, were characteristic of Mother England and most of the states, so the Founders thought it necessary to single out freedom of conscience and a small number of other enumerated rights, while leaving the balance unenumerated in the Ninth Amendment.

To help focus our thoughts, let’s turn history upside down. Imagine, for example, that 21st century medical technology had existed in the 18th century, and colonists were free to spend their own money on a wide variety of medical services that they choose. Imagine that everyone had also saturated themselves in James Cameron’s movie Avatar, such that a primitive faith in the healing force of the magical planet Pandora was universal and uncontroversial. The Founders may well have sought to constrain the new federal government by drafting the First Amendment to read: “Congress shall make no law respecting an establishment of a health-care system,” while ignoring religion as a source of conflict!

Imagine further, that Moses, Jesus, Buddha, Mohammed, and countless other prophets had preached in America since the Founding, fragmenting citizens’ faith in “Pandoranism.” Conflict might ensue, and the people might then seek to define a “right to religion.” If the government were to take the approach that the current one has to health care, it would set up a Department of Religious Practice, tax and subsidize church buildings and religious instruction, and grant money to “pilot projects” and “comparative effectiveness studies” to determine which religions were more effective. The law would require you to take up a religion that was available in an “exchange” authorized by the U.S. Secretary of Religious Practice. Unfortunately, your “right” to practice your religion would be controlled by the government, because various faith communities would lobby the continuously for more money to build higher cathedrals and temples, leading to a budgetary crisis that would require the government to ration how much “religion” each community would get.

And then there’s the Tenth Amendment, which reserves powers not explicitly delegated to the federal government to the states or the people, and which therefore should disqualify not only ObamaCare, but many other federal health-care laws as well!

Comments (9)

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  1. Ken says:

    Very interesting post. I hope the law suit is successful.

  2. Bruce says:

    John, you’ve convinced me.

  3. Larry C. says:

    I agree with you John, but do you think there is a chance in the world that the Supreme Court will?

  4. Nancy says:

    I read that the Democrats failed to put a “severability” clause in the bill — stating that if any part of it is found unconstitutional, the remaining parts continue to be valid. Without this provision, if one part of the act is found unconstitutional, the entire act goes down.

    Can anyone tell me if this is accurate?

  5. Don Levit says:

    It is interesting that John brings up religion in comparison to health care.
    Health care is a bellwether issue, in my opinion, for it is where economics and morals intersect.
    While I don’t think health care is a fundamental right, it seems to be a very important part of the mix of choices that Americans have.
    If one looks at health care as an economic necessity, yet is priced as a luixury, this is where morals enter the picture.
    To allow for necessities according to strict economics, ability to pay, one must discern between care which is vital and care which is an optional luxury.
    This we have made little progress on.
    The longer we delay tackling the underlying ethics of this important issue, the fewer our options.
    The fewer our options, the more desperate we will tend to become.
    At that point, behavior is up for grabs, and it has nothing to do with the highest bidder.
    This is why ethics (religion) must enter the picture – to help regulate our behavior in desperate times.
    Don Levit

  6. Devon Herrick says:

    It’s not clear to me how the government could enforce a right to health care. U.S. residents have a right to free speech but the government isn’t required to facilitate this right by publishing books free of charge for would-be authors; or by providing free radio or television airtime. We have freedom of religion but the government doesn’t support church construction other than allowing tax-free donations. We have the right to bear arms but the government isn’t required to provide a firearm to people unable (or unwilling) to afford one.

  7. Blake Woodard says:

    So true, John. The rescission issue was bogus. I have been in the life & health insurance business for 24 years and have never seen rescission. And as to pre-ex claims, I have not had 10 claims turned down in 24 years due to pre-ex. That issue also is pure Socialist horseshit. But apparently you and I are the aliens on a planet that does not value truth and true freedom.

    Here’s a non-health insurance example of Socialist lies. My wife got this irritating four-page “survey” from the National Association of University Women yesterday, asking her for a donation and presenting her with 20 leading questions about how women are under-paid, not only by evil male employers but also by Social Security (because they collect less SS, since they don’t make as much as men). Of course, no mention about how women outlive men by 4 years and therefore collect more Social Security.

    Socialists like NAUW just don’t get true freedom. And they never will get it. And there’s more of them than there are of John Goodmans and Blake Woodards. Talk me off my ledge, John!

    You can publish this comment, if you like, but I am writing to you personally. Keep up the fight. The days of compromise on freedom are over.

  8. John R. Graham says:

    There’s another issue with which I’ve struggled from a social-scientific angle, rather than a constitutional one: If we look at developed, industrial, “capitalist”, democracies (let’s call them “Western” for simplicity), we see almost the exact same pathology. It goes as follows:

    K-12 education: Almost complete government control – close enough to monopoly to describe it as such, generally justified on grounds of “equality”, “fairness”, “social contract”, “need” etc.

    Health care: Almost as complete government control generally justified on the same grounds.

    However, while one could easily rationalize government control of housing and food on exactly the same terms, there is no “Western” country where the government has done so, although one would expect that politicians would attempt to.

    Imagine, for example, an American politician who decided to excoriate Safeway or Piggly Wiggly for their “greed” and being “for-profit companies that profit from people’s hunger” and proposed a “public-option” supermarket to compete against them. A successful campaign would benefit the politician greatly. However, he would get no traction whatsoever. In fact, he’d be laughed off the stage.

    In housing, the bias is in the other direction: government artificially creates private ownership of houses by their occupants well in excess of the free-market equilibrium. As the recent crisis has laid bare, this has happened, in different forms and to different degrees, in all the Western countries.

    Why the difference? My notion is that people successfully fed and housed themselves for millenia before modern constitutional democracy arose, so the people know that they can acquire food and housing themselves. “Education” (intellectual that is, as opposed to trade learning or religious indoctrination) and “health care” developed (broadly) concurrently with constitutional democracy, so the political class was able to convince the people that the ordinary person could not acquire them on their own, but needed government to deliver them instead. The pre-existing culture had no way to get its collective head around the challenge, so the state jumped right in.

    As for why government takes an extra step with respect to housing, creating an artificially high number of owner-occupied homes, I suspect that it’s because the beginnings of representative government were land-based. The original parliaments were selected by land-owners. As the franchise expanded over the centuries, the fact that people within a geographic area elected legislators (as opposed to grouping people by trade, for example, to elect legislators), meant that representative government evolved from property-owners creating a political class to the political class creating property-owners.

    Anyway, that’s one man’s opinion!

  9. David C. Rose says:

    Not to put too fine a point on it, but since Obama’s plan also has guaranteed issue, rescissions became completely moot under his plan and therefore trumpeting their value as part of his plan was completely disingenuous. Under Obama’s plan any rational person would want to have their coverage rescinded. This in effect allows the individual to be insured without paying for insurance. If the individual is rescinded, there is no possible harm because of guaranteed issue, but he/she gets back the premiums. This converts health insurance into health charity after the fact.

    In effect Obama solved a largely non-existent problem by changing the law but, given other aspects of his very own law, he knew that largely non-existent problem would become perfectly non-existent. You can’t make this stuff up.