Healthcare, Rights, and Human Rights
Jonah Goldberg’s confusion
As Sam pointed out, Jonah Goldberg at the National Review argues that healthcare is not a ”right.” He says that under Obama’s plan:
…an official body – staffed with government doctors, actuaries, economists, and other experts – will determine which health-care treatments, procedures, and remedies are cost-effective and which are not. Then it will decide which ones will get paid for and which won’t. Would a 70-year-old woman be able to get a hip replacement, or would that not be considered a wise allocation of resources? Would a 50-year-old man not be permitted an expensive test his doctor wants if the rules say the cheaper, less-thorough one is sufficient?
He then asks us to imagine a parallel body of free-speech experts, which would declare:
Mr. Jones, you can say X and Y, but not Z. Ms. Smith, you can freely assemble with Aleutians, Freemasons, and carpenters, but you may not meet in public with anyone from Cleveland or of Albanian descent.
Goldberg argues that this would be ludicrous and argues:
Health care cannot be a right, because rights cannot come from government. At best, they can be protected by government.
He assumes something like: all rights derive from some pre-government natural state; they inhere in humans because they are human.
He concludes that free-speech is one such right and healthcare clearly is not. All this strikes me as confused on various levels.
First off, the government does provide the right to free-speech in nearly the same manner it might provide the right to healthcare. In the pre-governmental or natural state that Goldberg seems to refer to, anybody can silence anybody else. It is only through government regulation (i.e. the First Amendment and its interpretations) and civilization that people can have free speech. Similarly, people would have healthcare before the existence of government regulation, but maybe not as much as they deserve.
Second, there is actually a body of experts that determine our free speech rights. They are the people that interpret the First Amendment. The Courts, the Congress, and the People all contribute to our Constitutional understanding, but the courts in particular do exactly what Goldberg deems absurd-determining what is permissible and impermissible speech (i.e. you can’t yell fire in a crowded theater just because it felt right at the time).
Third, Goldberg should follow Jeremy Waldron, legal theorist at NYU Law, in distinguishing between (1) Constitutional Rights, (2) Legal Rights, and (3) Human or Moral Rights. Only then does what he says about “rights” make any sense, because people do currently have many legal rights to healthcare (i.e. Medicaid). It seems that Goldberg is arguing that healthcare is not a human or moral right, even though it might become a further entrenched legal right. His concern, I believe, is that the government is obligated to protect a human or moral right and he is skeptical of any sort of universal healthcare. That’s the practical purpose of the concept of human or moral rights.
Fourth, healthcare in some capacity might in fact be a human or moral right.
If human rights are about protecting autonomy, then people are not autonomous when they are gravely ill. If the government is to be concerned with autonomy-as all liberal ones are-it has to draw the line somewhere. It cannot guarantee full autonomy, for nobody has that-it’s impossible to be a completely free being, one who can will whatever he wishes and have it without any effort and in no time. But people’s existence as moral entities depends upon their ability to make free choices, as does their status as happy, functioning, maybe even flourishing individuals. So, people need a lot of autonomy even if full autonomy is impossible.
Given this, the government must draw a line in the gradient of autonomy from lowest autonomy (slavery or, possibly, death) to highest autonomy (God) and declare that above this line: that person is considered free or at least, that is the amount of freedom everyone deserves by virtue of being human. It is quite reasonable to me to draw the line above healthcare, or at least above certain grave illnesses, which if one has, he loses much of his ability to make free choices and engage with the world, since he lacks energy, is wracked with worry, can only focus on recuperation, may even die, etc. I discussed similar issues in a post arguing that same-sex marriage was not a human right.
If human rights are about protecting utility or happiness, the case for healthcare may be even easier, though that is more of a nuts-and-bolts policy question I won’t examine here.
-Jake
See a continuation of this discussion and a reply to the commenters here.
Related posts:
- Human rights and gay marriage
- Is poverty a human rights violation?
- Let’s talk about rights, baby
- Libertarianism
- Public healthcare, private practice
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27 Responses to “Healthcare, Rights, and Human Rights”
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Wow. That’s incredibly weak.
If you’re the only human on the planet, you have free speech.
You don’t have health care.
Free speech is a human right – you have it unless someone takes it away.
Health care is not a human right – you don’t have it unless someone else provides it to you.
Health care might be something a wealthy country decides to make a legal right to its citizens, but it’s hardly a human right.
Mike S is right.
Free speech is not a right granted by the U.S. Free speech is seen in our Constitution as an inalienable right which mean is comes from only a higher power (whatever you want to call it). Government’s only role is to protect our free speech.
Healthcare is not an inalienable right.
Public philosopher? What an egotisical title for one so immune to logic. Read the “Federalist”, then come back to reality, hopefully a bit more humble…
I notice the more pretentious the blog title, the more ignorant the writer.
I guess food and good footwear are also “rights”. Now where is my taco and those clogs those tulip people wear…
“In the pre-governmental or natural state that Goldberg seems to refer to, anybody can silence anybody else. It is only through government regulation (i.e. the First Amendment and its interpretations) and civilization that people can have free speech.”
This is quite incorrect. The First Amendment prevents the government- and only the government- from restricting certain of your rights you already hold. (Originally, in fact, it was the federal government only- even more limited, Congress.) That’s why a private university, for example, can confiscate student newspapers. That’s not to say they should, of course: If one has the right, and one certainly does, no one should violate it- but they are immune from government response. If I clamp my hand over your mouth or destroy your press, I may be prosecuted for assault or kidnap or property damage, but not for violating your rights.
Of course, this doesn’t mean that government hasn’t overextended itself, often ostensibly through the Commerce Clause, in creating all sorts of laws that prosecute for rights violations, “hate crimes,” and so on. But those are modern aberrations. In the original sense, it’s clear the people have certain rights, and the government is enjoined from violating them, no more, no less.
Hi, Jake
Re: right to free speech. Please read the Federalist Papers, Declaration of Independence and the Constitution several times before criticizing other people’s understanding individual sovereignty and natural rights. Jonah Goldberg doesn’t “assume” that free speech exists in some natural state before the government gave it to us, that is what the Declaration of Independence and The United States Constitution says and it is further expounded by the founders in The Federalist Papers.
The Declaration says that we “are endowed by our creator” with certain rights. meaning they pre-exist any king or government. The preamble to the Constitution clearly indicates that that it is the people who are granting certain powers to the government and that the government only has those powers which are granted to it in the Constitution.
In Federalist 84, Alexander Hamilton makes this point explicitly:
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As it turns out , The Bill of Rights was added anyway, as insurance, to protect rights which already existed. Therefore the amendment does not say: “The government grants you the freedom of speech.” Instead it says: “Congress shall make no law restricting…” It very explicitly does not create a right. It places a specific limitation on the government from interfering in a pre-existing right in addition to the general limitation that the government has no power which is not granted to them by the people (not the other way around).
The argument that you don’t have a right to something just because other people might try to take it away or interfere with your exercise of it doesn’t hold up. government or no government people still try to interfere with other peoples rights all the time and people have to enforce their own rights very often. That doesn’t mean those rights don’t exist.
And if we have a “right” to healthcare do we then also have a “right” to ‘draft” doctors and nurses to provide it, if not enough people volunteer to work in the new poorly paid bureaucracy? If yes, what about their rights?
Best regards
No need to get nasty here folks. I do agree that Jake makes a clear category error here. Freedom of Speech as written into Bill of Rights is not something given to the people by the government, but rather a “promise” from the government to not take that right away.
This is an example of “Negative Rights” that B. Obama is always commenting on. Generally the items in the BOR are promises not to do certain things rather than a promise to take action. It would be extremely hard (imho impossible) to classify universal healthcare in this light.
To Jake’s point about natural rights maintaining autonomy, that is all well and good. But honestly, what is more natural to the human condition than people naturally getting sick and naturally keeling over? It has been the nature of human existance since the dawn of time.
I am all for discussing the merits of a government “providing for the general wellfare” in the form of healthcare. But don’t call it a natural right. It’s not and attempting to characterize it as one is simply an attempt to make an end run around the discussion. Once it is a human right, game over. It is a serious intellectual shortcut used to push a pre-determined agenda.
OK, on closer reading, I still disagree with you about health care being a human right. The government, protects your right to try, not to succeed.
The government protects your right to try to speak and to persuade others, it doesn’t guarantee you’ll succeed. You have the right to try to print a newspaper and report on the government, you don’t have the right to be guaranteed an audience or financial success.
Likewise, I’d agree you have the human right to TRY to seek health care, but you don’t have a human right to succeed.
Protecting human rights is not about protecting autonomy. It is about not taking away autonomy. It is not about ensuring some basic level of autonomy.
You say, “First off, the government does provide the right to free-speech in nearly the same manner it might provide the right to healthcare.” But does that really stand up to scrutiny? The government won’t publish my book at public expense. It won’t pay to buy ad time for me to air my views on TV. It won’t rent a lecture hall for me to deliver them. OTOH, if some would-be censor tries to keep me from doing those things at my expense, the government (hopefully) will step in and protect my ability to exercise my free speech rights.
In fact, government already protects our right to healthcare in the same manner it protects our right to free speech: if anyone tried to keep you from paying a doctor to see you, you could call a cop.
And this deserves a topic of its own, but if healthcare is a universal right in this sense, then surely food, housing, and clothing are too. Ditto education, and police, fire, and military protection. Some/all of these are in fact provided at public expense, at least on a safety net basis, but installing all of them as universal rights leads us back to the old socialist dilemma. Why will anybody bother to work to provide those services to others when they have the right to just sit back and receive them without exerting any effort?
Jake,
You say, “Given this, the government must draw a line in the gradient of autonomy from lowest autonomy (slavery or, possibly, death)…to highest autonomy (God) and declare that above this line…that is the amount of freedom everyone deserves by virtue of being human”
This seems incredibly confused. You say “Slavery or possibly death” is the lowest autonomy. But we ALL die. Does that mean we have a low amount of autonomy? Of course not.
I guess what you mean is that when the Government takes your life (without due process), it is considered the lowest form of autonomy- right in line with slavery.
But why are these the lowest form? Because the government is taking- forcibly TAKING- your life or liberty away from you.
But with Healthcare, the government isn’t taking anything from you. Just as we all die, we all get sick. One can be completely free and still die. Still get sick.
And further, in order to get Healthcare, the government must FORCE someone to give it to you. So in order for the government to preserve your autonomy, they have to take autonomy from another person. If slavery really is one of the lowest lows of autonomy, then forcing people to do work they don’t want to has to be pretty low on the scale- much lower than healthcare.
It seems to me that a significant difference between free speech and health care as rights conferred by a government is that the latter is usually going to cost the government a lot more. So I don’t think that the two are provided in “nearly the same manner,” though they may be conceptually somewhat similar.
I do think it is true that without a government of some sort, any notion of rights has almost no meaning. The right to free speech (or whatever, even those mentioned in the Bill of Rights) is little more than a convenient invention of the Founders. It might have some greater significance or source, but it’s hard to show how it comes from a different place than a supposed right to health care.
That said, I don’t think that rights are about protecting autonomy — at least not primarily. If rights can be created and regulated by the government, then they are primarily extensions of the government’s authority. They’re about maintaining order. In a democratic republic, the government is supposed to answer to the people, so if the government wants to create a right to healthcare, it can do so. If you don’t like it, elect a different government.
I agree with the conclusion here, that a right to healthcare is not substantively different from other rights we enjoy, but I’m not sure the reasoning is as clear as it could be, and the policy implications don’t appear to follow immediately from the general argument.
Jake,
I really like your innovative considering of maximizing autonomy as the core function of rights.
In fact, after due consideration of this logic, it’s become clear to me that I can be autonomous only if the government gives me 10% of your income. Sorry if that makes you less autonomous, but that’s not my problem. Is it?
Regards,
David
Since the government can only act through individuals, if it is compelled to provide health care, then it is also compelled to conscript people into being doctors, nurses, etc.
Yes, there are plenty of such health care providers but it is easy to envision a scenario where there are not. In such a scenario, the government would still be obligated to provide health care, no matter what. Therefore, if every doctor decided to retire or move to France, the government would be compelled to conscript (enslave?) people to become doctors so that government could meet its obligation to provide health care. Essentially what your saying is that people have a right to the labor of health care providers. If you have a right to that labor, they have no right to condition its provision on compensation or anything else.
For you or anyone to excercise your right to free speech or a free press or freedom of religon make no demand that anyone else lift a finger to enable you to do those things. They [in this case gov't] must only refrain from doing something.
Health is toally different. It requires someone [perhaps someone else] to pay for it. It is therefore an infringment on THEIR rights, and for this reason, cannot be considered a ‘right.’ My actual rights place no burden of action on anyone else.
I would think that someone who calls himself a “public philosopher” might be at least a tiny bit familiar with John Locke, on whose ideas a vast portion of our governmental system is based.
This one is actually very simple: an individual’s rights only extend as far as his own self. A right is something you already have that can’t be taken away.
It can’t be a right if it has to be given to you, because then, by definition, it has to have been taken from someone else and thus is a violation of that person’s rights.
You can argue that it’s “government” that’s giving the healthcare, which many people want to do in this debate, but in that scenario either the government is compelling healthcare providers to give away their services for less than their full market worth or the government is taking wealth (property) from some other citizen to pay the doctor to provide care to a 3rd party.
Either scenario fails the test.
Not to mention that anything that’s given can ALWAYS be taken away.
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Is food a right? Should we nationalize all farms? Everyone needs food more than health insurance. How about shelter? No one should go without a warm house on those cold Fargo winter nights.
This post should have been thought out a little more for all the reasons stated in the previous comments.
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