Earlier this year, the statute known fondly as "Obamacare" was deemed to be both unconstitutional and constitutional at the same time. This judicial paradox described that the original presentation of "Obamacare" was unconstitutional as a provisional universal mandate, but was instead constitutional if viewed as a tax set forth by congress which is all fair and good. Personally, I find this decision to not have encompassed the real core of the debate regarding universal healthcare.
The decision behind "Obamacare" failed to recognize, in the way that it decided to label the law, that the idea of universal healthcare is a discussion about individual rights much more than it is an argument over states' rights. By claiming it constitutional only in terms of how such a law could be allowed to go on, the Supreme Court failed to tackle the issue of whether or not healthcare is a right that should or should not be respected in the United States.
Legally, the jury is still out on that decision because at no point in the "Obamacare" discussion did an amendment to the Constitution come to the table as a possible solution to this controversy. This is only the highest speculation, but the Obama administration probably did not want to flirt with the idea of the president actually fulfilling one of the far right's prophecy of him wanting to drastically change the constitution, even if it may possibly have positive effects.
Nevertheless, I believe that there can be a case made for why some form of healthcare coverage can be had within the constitution of today, albeit with some rather generous speculation of intent and possibly some modifications to be taken into account. We will begin, rather justly, from the beginning of the Constitution in order to better understand the motivation of this sort of enquiry.
This is what greets any reader of the Constitution at the head of the page;
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The italics here connote history, whereas the underlined connote areas of interest pertaining to this specific topic. The Constitution can be said to be looking out for, among other things, laws heading into a direction that encompasses some sorts of benefits (perhaps rights not necessarily found inalienable) for the American people. Given that "providing for the common defence" is already established, we cannot possibly imply that general welfare, domestic tranquility and justice are merely offshoots of the Constitution only keeping people physically safe, but must instead stand on their own merits.
There is very much an aspect of the Constitution that tries to better people's lives when it can, and perhaps when it is just to do so. We shall go into that later, but for now we must understand simply that the Constitution houses more than just the intent to defend land and property. It also shows some recognition of social goods to be found within American society itself; how many social goods and which ones again will be discussed later.
To begin to answer that specific question, we must first consult the 9th amendment, which reads as follows;
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
In modern English usage, this amendment basically means that just because a specific right is not now expressed in the list of amendments does not in any way deny any "new" rights yet to be discussed to be adopted into law. This is what acts as the legal in-route for any healthcare-based right; without the 9th amendment, it would be almost illegal to consider the adoption of new rights into the American legal system.
Putting the preamble and the 9th amendment together, we can begin to at least imagine that it is not only legal but implied by the Constitution that rights based on social justice are possible to be achieved, if someone is to receive them by the appropriate reasoning of course and not just crafting a right out of thin air. This becomes increasingly more possible if you look at how prohibition became a constitutional amendment.
Prohibition was not a legislative-bound amendment; it was pushed to that point by a popular movement behind it looking to define what right, specifically the right to consume alcohol, they wanted to block. Only under the Volstead Act (legality of Congress' enforcement of the 18th amendment) did the Congress actually find itself independent in its approach to prohibition (its vote to push the amendment through in the place of the people). Remember also that the idea behind making alcohol illegal was that it would, in theory, better society and promote general welfare.
If it is possible to define what rights should be taken away to better people's lives, then it should also be possible to define what rights should be established in order to better people's lives. If a right to some form of healthcare is to be aimed at economic relief, general physical wellness, and a greater capacity for wellness as a people, then a right to healthcare has just as much theoretical legality as the 18th amendment had in its heyday.
So, given that there are historical in-roads to constitutional amendments, and given that rights can arguably be tacked on by the 9th amendment only if they truly embody the spirit of promoting obvious social benefits, a right to healthcare can at the very least have the opportunity to be heard as a possible "addition" to the sets of rights already specified by the Constitution. That being said, it would most likely still have to pass by the Supreme Court for its seal of approval given the political climate that state legislatures and leaders can evoke if something challenges their beliefs/views. I personally would welcome such an unfolding of events because the most significant changes to rights in the history of the United States has always fallen to justices and not representatives.
Although the Supreme Court is now as political as the world around it, I still have faith in their ability to look at law for law's sake, not at what pundits have to say or who can benefit the most from a certain decision. Given that this sort of decision would have to go back to understanding exactly what the Constitution set America's government forth to do, I find it likely that a proposal to have the Supreme Court embrace a right to healthcare would most definitely fulfil the concepts of the founders to protect and to promote welfare for the American people, in this case saving them from the pitfalls of a skewed and profit-driven and not health-driven healthcare system.
The decision behind "Obamacare" failed to recognize, in the way that it decided to label the law, that the idea of universal healthcare is a discussion about individual rights much more than it is an argument over states' rights. By claiming it constitutional only in terms of how such a law could be allowed to go on, the Supreme Court failed to tackle the issue of whether or not healthcare is a right that should or should not be respected in the United States.
Legally, the jury is still out on that decision because at no point in the "Obamacare" discussion did an amendment to the Constitution come to the table as a possible solution to this controversy. This is only the highest speculation, but the Obama administration probably did not want to flirt with the idea of the president actually fulfilling one of the far right's prophecy of him wanting to drastically change the constitution, even if it may possibly have positive effects.
Nevertheless, I believe that there can be a case made for why some form of healthcare coverage can be had within the constitution of today, albeit with some rather generous speculation of intent and possibly some modifications to be taken into account. We will begin, rather justly, from the beginning of the Constitution in order to better understand the motivation of this sort of enquiry.
This is what greets any reader of the Constitution at the head of the page;
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The italics here connote history, whereas the underlined connote areas of interest pertaining to this specific topic. The Constitution can be said to be looking out for, among other things, laws heading into a direction that encompasses some sorts of benefits (perhaps rights not necessarily found inalienable) for the American people. Given that "providing for the common defence" is already established, we cannot possibly imply that general welfare, domestic tranquility and justice are merely offshoots of the Constitution only keeping people physically safe, but must instead stand on their own merits.
There is very much an aspect of the Constitution that tries to better people's lives when it can, and perhaps when it is just to do so. We shall go into that later, but for now we must understand simply that the Constitution houses more than just the intent to defend land and property. It also shows some recognition of social goods to be found within American society itself; how many social goods and which ones again will be discussed later.
To begin to answer that specific question, we must first consult the 9th amendment, which reads as follows;
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
In modern English usage, this amendment basically means that just because a specific right is not now expressed in the list of amendments does not in any way deny any "new" rights yet to be discussed to be adopted into law. This is what acts as the legal in-route for any healthcare-based right; without the 9th amendment, it would be almost illegal to consider the adoption of new rights into the American legal system.
Putting the preamble and the 9th amendment together, we can begin to at least imagine that it is not only legal but implied by the Constitution that rights based on social justice are possible to be achieved, if someone is to receive them by the appropriate reasoning of course and not just crafting a right out of thin air. This becomes increasingly more possible if you look at how prohibition became a constitutional amendment.
Prohibition was not a legislative-bound amendment; it was pushed to that point by a popular movement behind it looking to define what right, specifically the right to consume alcohol, they wanted to block. Only under the Volstead Act (legality of Congress' enforcement of the 18th amendment) did the Congress actually find itself independent in its approach to prohibition (its vote to push the amendment through in the place of the people). Remember also that the idea behind making alcohol illegal was that it would, in theory, better society and promote general welfare.
If it is possible to define what rights should be taken away to better people's lives, then it should also be possible to define what rights should be established in order to better people's lives. If a right to some form of healthcare is to be aimed at economic relief, general physical wellness, and a greater capacity for wellness as a people, then a right to healthcare has just as much theoretical legality as the 18th amendment had in its heyday.
So, given that there are historical in-roads to constitutional amendments, and given that rights can arguably be tacked on by the 9th amendment only if they truly embody the spirit of promoting obvious social benefits, a right to healthcare can at the very least have the opportunity to be heard as a possible "addition" to the sets of rights already specified by the Constitution. That being said, it would most likely still have to pass by the Supreme Court for its seal of approval given the political climate that state legislatures and leaders can evoke if something challenges their beliefs/views. I personally would welcome such an unfolding of events because the most significant changes to rights in the history of the United States has always fallen to justices and not representatives.
Although the Supreme Court is now as political as the world around it, I still have faith in their ability to look at law for law's sake, not at what pundits have to say or who can benefit the most from a certain decision. Given that this sort of decision would have to go back to understanding exactly what the Constitution set America's government forth to do, I find it likely that a proposal to have the Supreme Court embrace a right to healthcare would most definitely fulfil the concepts of the founders to protect and to promote welfare for the American people, in this case saving them from the pitfalls of a skewed and profit-driven and not health-driven healthcare system.
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4 comments:
Your blog assumes many facets that should not be taken as given. One, that access to health care equals health. This isn't so clear. Many people in desperately poor health have excellent access to health care, but for a variety of reasons appear to refuse to seek it out until they are too ill for convenient cures. Another, that the 9th Amendment as you lay it out amounts to positive rights, and with them the possibility (probability?) of some corresponding social obligation, rather than negative rights.
Jake,
Again the idea here is to try to make an argument for how someone can try to wrangle a right to healthcare around the constitution and yes that involves some wishful thinking; for instance that a right to healthcare means "good healthcare" being in the very definition. as far as the 9th amendment is concerned, it was not designed to bring out positive rights, but it was designed to bring out some rights. a generous court could potentially dish out positive rights if it so chose to.
The 9th Amendment is written negatively, though. "
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
"
It posits in no meaningful way a positive construct of any rights, it simply says that none other can be denied or disparaged. It grants no power to the government to provide any rights, either, by any positive mechanism. The language is ambiguous to the point, really, of meaninglessness.
To use the 9th Amendment as the platform for providing Universal Health Care is a stretch farther than my imagination can allow.
How else might the Constitution allow? Some might say the preamble to Article 1, Section 8, in granting congress the power to tax and spend to provide for the "General Welfare" would be sufficient, but even precedent doesn't support that view well.
Jake,
While the 9th is written negatively, it can be interpreted as having no quarrel with allowing positive rights, therefore leaving the door open to have them come in (of course, said door is in no way inviting them in). The idea is you can replace healthcare with whatever X-positive right that you could be ok with having, and the 9th could allow it given that this X-positive right never existed before, but can be had in the constitution. Again, it is interpretation and wishful thinking, but you could come up with a series of events/interpretations/explanations that would allow in theory for something like this to happen without invoking the right of congress to tax.
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