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Are There Any Affirmative Constitutional Rights?

Sep 3, 2009
By Ken.
Law, Politics & Current Events

Our friend TJIC, discussing the issue of government-provided health care, finds fault with this rather conclusory claim in an essay in The Economist:

Everyone requires certain goods and services, such as food and shelter. There exists an implicit social contract that people who cannot afford these goods will get them from the state.

I agree with TJIC that it is rather stark to make that claim without backing it up. As a nation, and as the several states and municipalities, we have elected officials who have voted for legislation that gives out a certain amount of food and shelter under various complicated conditions. We have not, however, recognized any sort of universal right to food or shelter. Many people who lack funds to purchase food and shelter on their own (owing to their own failings or to inexorable social forces, depending upon which mouth-frother you listen to) have to catch-as-catch-can through a patchwork of government and private handouts which vary with time and funding and circumstance. Note that for the purpose of this post I’m not making a judgment about whether we should have such a social compact; I’m saying it’s just flat wrong to say we have one.

This raises the issue of rights. One now-familiar slogan is that “health care is a right” or “health care is not a right.” If health care is to be a right, I submit it could only be a statutory right — that is, one we agree to confer upon ourselves through our political process. It’s not a constitutional right, which is what people most often mean when they talk about having a right to something. There is no credible interpretation of the constitution, and no line of jurisprudence, supporting the notion that the general public has a constitutional right to health care. (There is a right to certain people not in the general public — for instance, if I am jailed involuntarily by the government, it is very probable that the government is constitutionally required to provide health care to me.)

Health care, as an affirmative right, would be different than any other constitutional right. For the most part constitutional rights establish what the government can’t do to us, or how they must do things to us to the extent they do them. The government can’t restrict my speech for the most part, and can’t conduct unreasonable searches of me. Even rights that appear to be affirmative are only conditional restrictions on the manner in which the government may act. For instance, I have a right to government-appointed counsel if I am prosecuted for a crime. But that’s only because the government is choosing to prosecute me — if the government did not, I would have no right to counsel. Similarly, though providing me with due process of law costs money, I only have a right to it to the extent that the government decides to subject me to some proceeding or burden. Similarly, though the government has to pay for school for African-American children if it pays for school for white children, it need not pay for any school at all.

So here’s a question — can anyone identify a constitutional right that could fairly be compared to an affirmative right to health care for all? Is there any constitutional right that obligates the government to spend money on me, non-conditionally?

The problem I see with the concept of health care as a right is that it tends to confer power on the government, not limit government power. Recognizing a constitutional right to health care necessarily recognizes the government’s power — and obligation — to take money out of my pocket by threat of force in order to pay for health care for other people. That is rather unlike other rights.

Last 5 posts by Ken

9 Comments
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9 Comments

  1. TomH  •  Sep 3, 2009 @11:58 am

    The Congress shall make no law (that will allow me to be without State sponsored health insurance).

    But one affirmative right is – Seventh Amendment – “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, . . . (followed by a negative related to appellate courts not retrying the facts)

  2. Ken  •  Sep 3, 2009 @12:07 pm

    Tom, I’m not sure the Seventh is comparable. For one thing, the jury is not necessarily free — IIRC courts have found that the Seventh Amendment does not prevent requiring litigants to pay jury fees to have a jury trial in civil cases (and most jurisdictions do).

  3. Chris  •  Sep 3, 2009 @12:44 pm

    Only thing that immediately comes to my mind is that the government is required to spend money to attempt to count you in the census.

  4. Jeff Gamso  •  Sep 3, 2009 @2:08 pm

    Some state constitutions, maybe most (what do I know, maybe all) confer specific, affirmative constitutional rights such as the right to an education.

    But I suspect that most people who speak of a “right to health care” are speaking of a moral right to it.

    In a similar vein (though I’m less confident in this assumption), I’d guess that the social contract The Economist was suggesting is implicit in the very idea of society. It’s rather a muddled claim when put that way, but the idea that one has certain obligations to the well being of his or her neighbors certainly has strong roots (e.g., Cain’s plaintive question, “Am I my brother’s keeper?”).

  5. Mike  •  Sep 3, 2009 @3:09 pm

    I’ll make my guess before checking. I think there is an affirmative right to a Republican form of government. Which I think is kind of cheating, since it presupposes a government. Now…Let’s see if I’m right.

  6. Old Geezer  •  Sep 3, 2009 @3:58 pm

    The argument here is semantic. You would not get far before the Supreme Court if you argued that the Constitution did not confer the “right” to bear arms. Yet it does not. It simply prevents Congress from passing laws that infringe upon this assumed right.

    Likewise, we do not have a “constitutional right” to fly on airplanes, as the subject had not been considered important to the framers. But any number of other implicit rights addressed directly or tangentially in the Constitution can be used to argue that the Government cannot arbitrarily interfere with my right to fly on the airline of my choice.

    When it comes to health care, there is no Constitutional Right. This does not necessarily prevent the use of government funds, in the common interest, from being spent on health care for all if Congress chooses to do so. Among other things, Congress might decide that I have a right to not be burdened, when I go to the hospital, by the incremental cost that the hospital passes on to me of their treatment of the poor. Congress may think it better to spread this cost amongst all of us, not just the wealthy sick. Now, in your stated concern that you not be involuntarily taxed for things you do not want government to spend money on, are you suggesting that we all pick and choose what we pay our taxes for? For example, could I have refused to pay that increment of my taxes that would have gone to Halliburton?

  7. Brandon Berg  •  Sep 3, 2009 @8:33 pm

    Old Geezer:
    In fact, the federal government is constitutionally prohibited from spending money on a national health care system. The powers of Congress are exhaustively enumerated in Section I, Article 9, and nothing in there can reasonably be construed as granting it the power to fund a national health care system.

    Some people argue that the “general welfare” clause gives Congress the right to spend money on anything that advances the “general welfare,” but Madison shot that down in Federalist 41, dismissing as absurd and nothing more than antifederalist scaremongering the claim that the “general welfare” clause might one day be interpreted as a blanket grant of power to Congress.

    Unfortunately, the Court has, since the days of Roosevelt’s court-packing scheme, simply chosen to ignore both the plain meaning of the Constitution and Madison’s restatement of it and rule that Congress does indeed have the authority to do pretty much anything not explicitly forbidden in the Bill of Rights. This is treason, but what can we do?

  8. Chris  •  Sep 4, 2009 @6:12 am

    “This is treason, but what can we do?”

    I’m pretty sure it doesn’t meet the plain meaning of the standards set forth in Article III, Section 3.

  9. Patrick  •  Sep 4, 2009 @6:30 am

    The proper terms would be “usurpation” and “dereliction.”

    I almost had to get into it with a judge, by way of setting up an appeal in a case I’d already lost, over whether he was a “usurper”. Fortunately the insurer settled before I had to go down that road.

    No one likes to be called a usurper.

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