In light of some of the responses to the League’s constitutional convention on the main page, I’ve been doing some thinking on the subject of so-called positive rights and want to take the pulse of readers here. To those of you who believe there is or ought to be a constitutional right to health care, do you believe this right exists outside the context of the state? That is, if we suddenly found ourselves stranded on a desert island with no government or formal laws, do I nonetheless have a right to receive medical services from you similar to your right against my stealing your possessions or causing you physical harm? What if you need my shirt to strain your drinking water–part of your "rights" to basic food, water, and health care? Can negative and positive rights co-exist?
You can see where I’m going with this: some kind of things are appropriately called basic, or constitutional, rights, and others are something else. But I genuinely want to understand the case for putting positive rights in a constitution, and how they might interact with or impact negative rights.
[In light of some of the initial comments, I added some additional thoughts and restarted the discussion at the main page.]
This would be one I’d really like to see responses to. I don’t see how assertion of a positive right without an obligation means anything beyond “people not having this is bad”, and asserting one with obligation to provide gets into “from who/how/why?” talk & pretty much exits the playing field of rights entirely.
Rights aren’t negotiable. Either they are recognized or a society heads down the highway towards Pitchforkville, the only question being how fast it is going.
I think we can speak of a positive right to healthcare in the sense that the healthcare needs of others obligate us to the extend that we are able. I see this right as the logical extension of the right to life, which I also understand in both a negative and positive sense. I hasten to add, however, that this right to healthcare, while it has a social dimension, does not necessarily mean that it should be recognized by the U.S. Constitution. The principle of subsidiarity pertains here.
I’m of the opinion that the national level is the most appropriate level to address the funding of healthcare, but this opinion owes as much to my beginner’s assessment of the concrete situation of healthcare in the U.S as to what I see are the demands of justice.
The correct way, at least in FLG’s opinion, to accurate talk about what people refer to positive rights is actually as duties. So, when Kyle above is talking about “a positive right to healthcare in the sense that the healthcare needs of others obligate us to the extend that we are able,” he is saying, FLG thinks, that we as individuals and as a society have a duty to extend health care to those to whom we are able.
Pretty sure this is broadly applicable from your shirt straining example to the sundry and growing list of positive rights. So, society has a duty to try to provide security, health care, jobs, education, etc, etc. But the idea that one has a right to these things is, quite frankly, ridiculous.
Much of the difficulty lies in the language of rights, a language that has its uses but perhaps conceals more than it reveals. I’d put it this way: I have a right to healthcare, education, shelter, etc., but my having these rights does not mean that only others are obligated or have a duty: I have a duty or obligation to respect my own rights. I have a responsibility for others and for myself. I therefore violate my own rights if I expect others to do for me what I am perfectly able to do for myself.
From the vaunted South African constitution:
Everyone has the right
to an environment that is not harmful to their health or well-being; and
to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that
prevent pollution and ecological degradation;
promote conservation; and
secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
Like what does that mean in real life?
The whole thing sounds like it was written by Barney the Dinosaur after watching American cable TV for a few months. I dunno what the buzz is about.
http://www.info.gov.za/documents/constitution/1996/index.htm
Constitutional rights can be beyond, in addition to, and without basis in any natural or “basic” rights. They’re not coterminous.
But I agree with the suggestion you praised Kyle’s formuation of: in terms of health care and other positive rights, I’d just like the constitution to allow for them to be constitutionally established by statute so we can figure it out as we go (but I don’t care if that happens via text or interpretation).
…”constitutionally established by statute” meaning that, if they are established by statute, they won’t be unconstitutional, not that the rights are established in the constitution.
…This avoids the issue of a (constitutional or other fundamental sort of) positive right to something where there are not the resources to provide it, because statutory provision is done precisely in response to available means. When it can be done, it can be in place (the right exists inasmuch as we all have the right to the protection of the laws that are on the books), but if the society hits upon hard enough times that it has to suspend the provision of the benefit, it does not violate a constitutional guarantee in doing so. Similarly, on a desert island (where “laws” will more or less be tacit expectations of other islanders and acknowledgements thereof by them) there might be an acknowledged expectation (law) that a doctor stranded with others treat those in need, until such time as the overall situation dictates he must look out just for himself or his family members if any are there. Or, there might not. Whether such acknowledged expectations exist is essentially a time-sensitive statutory matter, but the “constitution” of the island (unspoken background group assumptions of those stranded) allows that there might be times when there is a legitimate expectation that the expectation of the islanders that those with medical training treat the injured be acknowledged as legitimate by those with the training.
KnowwhatImean?
Makes my eyes cross a little, but kinda.
Yeah, definitely that last sentence, eh? A doozy. Thanks for trying.
Still working on your expanded front-pager. The early returns are not looking promising for you and i at least to reach much common ground on the topic of natural rights vis a vis constitutions, or just on natural rights generally, however. I’m slightly reluctant to wade in to that discussion, but we’ll see…
I’m having second thoughts about expanding the discussion before getting more input. We’ll see what happens. I’d still like to discuss further between us, even if we continue that here.
I’ll give it my best. I can’t say I’m really conflicted on natural rights, – I have a pretty good sense of my views on them – but I just don’t really have very many well-developed arguments to support those views yet, as it’s one of my more recently-arrived at dispositions. I’ve learned better by now than to come to the League on such a serious topic as rights with arguments I know are less than half-baked. (51-99% baked, well, that’s another question entirely…;)) So we’ll see. Feel free to bounce out whatever thoughts you want to think through off me any time, though.
“Constitutional rights can be beyond, in addition to, and without basis in any natural or “basic” rights. They’re not coterminous.”
Though I’m trying to just get feedback (like yours) and not engage in full-throated debate, I will mention that I think a “constitution” is an expression of the first principles, the most basic ideas, that “constitute” the polity. I suppose that could mean a rejection of natural rights, but there would be a problem if a constitution incorporated natural rights and things that conflict with natural rights. And so far as I can tell, positive rights seem to conflict with natural rights. Thus this post.
This is an interesting challenge, Tim. I’ll ponder this weekend.
I agree mostly with Kyle and will add that I don’t believe the constitution should be amended to make health care a right, although I might favor an amendment to empower the federal government to ensure all Americans can have health care.
The devil is in the details, of course, and any amendment to the constitution would have to be considered in light of whatever possible consequences might arise. For example, if the mandate is struck down, I don’t think an amendment to make a mandate (i.e., to purchase insurance, not the contraception mandate) constitutional would probably be a good idea because it might be construed to make other “mandates” constitutional. (Of course, the apparent absence of a limiting principle is one of the chief arguments against upholding the mandate now.)
Finally, if we’re stuck on an island and you need healthcare, I do think I’d have an obligation, a natural duty, to help you in (almost) any way I can. Whether my duty to help you means you have a “right” to expect my help is perhaps a different question, especially if there is no state to enforce that expectation against me. In this sense, I don’t see how a positive right can exist in a state of nature, except as the opposing and logically necessary side of the obligation one has to help their fellow human beings.
Maybe that was partially what you were getting at with this post?
Pierre,
Interesting points. As to a healthcare insurance mandate, without addressing whether I agree with it, I don’t think it would “make other ‘mandates’ constitutional.” I think the expressio unius principle would effectively work against it.
As to this: Whether my duty to help you means you have a “right” to expect my help is perhaps a different question, especially if there is no state to enforce that expectation against me. It raises a key question: What does a natural or pre-political right mean if indeed there is no state to enforce it? Aren’t we just talking in meaningless abstractions?
No. It still matters to me whether I have a right to my possessions, and whether you have a right to demand the shirt off my back. True, on our desert island there is no formal law to which we can appeal in order to settle the matter, and no police to enforce it anyway. Yet I still have both the right and the duty through self-help to enforce the law revealed to me through right reason. Should I evaluate your petition for the shirt off my back as unreasonable—perhaps in light of the fact that you could use your own garments for the same purpose, or that fresh water could be had by traveling a slightly longer distance, or that the need has not yet become sufficiently dire to warrant infringement on my rights and interest in my own property—then not only would my denial be justified, so would my use of reasonable force to repel your efforts to enforce your ill-conceived right.
Still not convinced this is more than a mere academic exercise? We don’t even have a constitutional right to health care in this country, and yet there appears to be some notion of a “right” to receive contraception, sterilization, and certain abortifacients as part of a “right” to employer-provided health insurance. Holy hell has broken out as this positive right has driven right through the front window of the negative right to the free exercise of religion. Notwithstanding the problematic reasoning in Employment Division v. Smith, the structure of negative rights versus government powers should make this an easy question, as Kyle outlined: “Given that 1) protecting religious liberty is a more fundamental role of government than regulating healthcare and 2) the Catholic Church’s teachings on contraceptives, sterilizations and so forth do not, in themselves, constitute a grave harm (though they may be put to ill use), I have to say no, the mandate, as written, is neither legitimate nor just.”
Were the mandate a constitutional provision rather than an HHS reg, we’d have ourselves an internally contradictory constitution. Not a very good way for a constitution to come out of the gate.
Poor writing! I mean that such an amendment would not be a good idea. That is what I said, but I just wanted to be clear because I think I garbled my words.
This, btw, would be a great -and very popular – front page cross post.
Thanks, all, for your great comments. I’ve expanded the OP substantially and moved the discussion to the main page in hopes of getting feedback from more people.
https://ordinary-times.com/blog/2012/02/11/pondering-positive-rights/
Rights imply duties. While the philosophers make the distinction between positive and negative rights, the entire line of reasoning is specious, as ridiculous as wearing a shirt inside out.
Let us put it baldly, in terms for ordinary folks. Some people want me to do things and not to do other things. Some laws oblige me to do things like pay my taxes or not do things like steal.
The conversation becomes far more obvious and painful when we consider what our duties are to our fellow man. We might each of us be willing to be the Good Samaritan in Jesus’ story, right up to the point where the Good Samaritan pays for the hapless victim’s hotel stay. If you remember the story, the Good Samaritan left the man who fell among thieves at the hotel and continued on his journey, saying he would pay the tab on his return.
That’s where we can dispense with all this Positive and Negative Rights hooey. There is no question as to our duties. We know it’s wrong to leave our fellow man in the ditch but when it comes to paying for his health care, then do we raise our eyes to heaven and pitch our heads to one side, oh that’s not our problem. Or, some of us are brazen enough to say that’s nobody’s problem. Screw the wounded guy, we have no duties to them.
Let’s just rewrite a few of those sentences, substituting the word Duties for Rights
To those of you who believe there is or ought to be a human duty to rescue sick people, do you believe this duty exists within the context of the state? That is, if we suddenly found ourselves stranded on a desert island with no government or formal laws, do you nonetheless have a duty to give medical services to me similar to my duty against your stealing my possessions or causing me physical harm? What if we need your shirt to strain our drinking water–part of my “duties” to help provide basic food, water, and health care to each other?
Reads just a little differently, nu?
Blaise,
Having a little trouble following, and I wonder about a couple of the revisions to the hypothetical. You say, “do you believe this duty exists within the context of the state,” but continue to work with the hypo about being on a desert island without laws. You also refer to “my duty against your stealing my possessions.” Do you mean “your duty against your stealing my possessions”?
But let’s begin with where we do agree and stipulate that “we know it’s wrong to leave our fellow man in the ditch.” My question is: Does this moral duty translate to a political right? Do all moral duties translate to a corresponding political right? How do we get from this to that?
Or are you saying “hooey” to the entire suggestion of a distinction between the moral and the political?
Forgive me for seeming to put words in my mouth here, I’m not really attempting to do any such, but it does makes the argument somewhat less theoretical.
Kant gives us the Categorical Imperative, a terribly exact thing. It is not the Golden Rule, whatever the simpletons and the Two Semester Philosophers want to make of it. For all its critics, it frames the only valid discourse on the subject of Rights and Duties.
There can be no creation of Right without creation of Duty. When folks wax hot on the subject of the State, as if it were some Troll under the Bridge, exacting his tolls, putting up Desert Island scenarios, they’re avoiding the obvious, that we are all on that Desert Island and have been since we learned to stand upright and care for those we deemed our own. The archaeologists are now telling us even Neanderthal Man cared for his sick and elderly: they’ve found skeletons in the caves of France which reveal they knew enough to set bones and care for those who weren’t useful members of society at that time.
Let’s quit all this cheap talk about the Troll under the Bridge. A discussion of Rights without the Duties thus implied is half-a-discussion. We are all on that Desert Island and always have been.
Ugh… words in your mouth. Freudian slip I guess.
Blaise,
I’m honestly not quite sure which is the “cheap talk” I’m meant to quit. If you’d like me to put my question in terms of duties instead of rights, I’m happy to, though I don’t quite see how it changes things much:
If you pounce on me to take the shirt off my back while muttering on incoherently about vague duties to humanity, do I have a duty to punch your lights out to enforce your duty to respect my private property in the absence of some obvious or articulated exigency?
Here is the cheap talk:
To those of you (clearly not me) who believe there is or ought to be a constitutional right to health care (not a duty to our fellow men) , do you believe this right exists outside the context of the state? That is, if we suddenly found ourselves stranded on a desert island with no government or formal laws, do I nonetheless have a right to receive medical services from you similar to your right against my stealing your possessions or causing you physical harm?
Without wishing to offend you, I don’t find it in the least surprising you’re having trouble grasping this concept. Ronald Reagan, your hero, is on record as saying
In this present crisis, government is not the solution to our problem; government is the problem. From time to time we’ve been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. Well, if no one among us is capable of governing himself, then who among us has the capacity to govern someone else? All of us together, in and out of government, must bear the burden.
Tim, we are our brother’s keeper. There is a burden. We cannot govern ourselves, it’s a contradiction in terms. Mankind requires government to do for him what he cannot do for himself. The Desert Island is all around us, a world filled with suffering, where people do not have clean water to drink. Who shall give them clean water if not government? Charity? Diarrhea kills thousands of children in the Real World. The sovereign symptom of bad government is this: it is no longer is motivated to relieve the misery of its citizens.
I’m not pouncing on you. I’m trying to open your eyes to the Desert Island upon which we live, a planet where the deserts are growing because poor people are cutting down trees. This is not a hypothetical and any talk of Desert Islands is cheap talk, begged questions. You who would tell us mankind does not have a right to universal health care — who should bear that burden, assume that duty?
Blaise, there are several problems when it comes to oversimplification and we’re running into one of them.
When it comes to the health care of the man found in the ditch, his convalescence required:
A Bed
A Wet Cloth
A Kind Word
As expensive as these things are (and I’m not saying that they’re cheap!), I’m saying that they would be less expensive to provide than, say, a bone marrow transplant.
One of the things I always discuss when it comes to public policy for health care is a two-tiered system where everything on the bottom tier is publically funded and everything on the top tier is *NOT* and the difference between the two is that the technology on the bottom tier is 10 years old.
2002 medical technology, 2002 medical techniques, 2002 medical advancements, all on the public dime.
Then I ask, what if a child gets sick. A child gets sick with something that we didn’t cure until 2009. Would you say that we have a moral obligation to provide the top-tier service to everyone, regardless of their inability to pay?
And it’s at that point that the Good Samaritan argument breaks down.
Because it’s not enough to provide a bed, a wet cloth, a kind word. It never is. We have to provide bone marrow transplants (and all of the expertise associated) and the recovery drugs associated and the physical therapy associated and everything associated regardless of the individuals inability to pay… because the Good Samaritan was willing to pay for a bed, a wet cloth, and a kind word.
If all health care consisted of in 2012 were beds, wet cloths, and kind words, I think that you wouldn’t find that many people who would argue that we shouldn’t find a way to provide these things to any and all who needed them regardless of their inability to pay.