The ACA and the fundamental right to health care

Zietlow, Rebecca E. REBECCA.ZIETLOW at
Mon Mar 26 12:49:27 PDT 2012

I am happy to agree that the Supreme Court is correct in finding that there is no constitutional right to health care. I prefer that the Court stay away from the realm of economic rights.  Economic rights are positive rights best suited to definition by legislatures.  The Court has by and large taken that position since Carolene Products,  and I think it's a good one.

However, the right to health care is recognized in international law, including in the international convention on human rights.  And, it falls within Congress' power to determine economic rights that are protected by statutes, including the right to health care.

Most of Jon's argument is over policy, which is best suited to legislatures, not courts, to determine.

From: conlawprof-bounces at [conlawprof-bounces at] on behalf of Jon Roland [jon.roland at]
Sent: Monday, March 26, 2012 12:00 PM
To: conlawprof at
Cc: Lawcourt
Subject: Re: The ACA and the fundamental right to health care

The Supreme Court is correct in holding that there is no constitutional right to health care, or to any economic benefit. The adjective "fundamental" when applied to "right" should be reserved for those immunities that arise from the constitutions of nature, society, and the state<>, prior to the establishment of a constitution of government, and no constitution of government can be regarded as well-designed or consistent with the constitution of nature if it declares a positive right to a sufficient amount of any scarce resource. It is a grave mistake to seek to declare "rights" the delivery of which can not be assured even if there are no public resources available to do anything. A well-designed constitution of government must be able to function using only the voluntary efforts of individuals and no public treasury at all.

There is a right to health care, but it is only a right not to have government actors impede persons from providing for their own or voluntarily offering it to others. The only historical exceptions for that have been when individuals who were immune because they had recovered from an infectious disease were required, as militia duty, to feed and provide basic care for a few who had contracted that disease, as a way to prevent it from spreading, that is, to maintain a quarantine.

As Hayek<> and other competent economists have pointed out, those we sometimes call "progressives" suffer from the delusion that there are no economic limits on compassion, that somehow enough resources can always be found to meet infinite needs. Although we may sympathize and commend compassion using only one's own resources, it defies the laws of nature and economics to allow the compassionate to impose their will on those who choose not to aid others other than for militia defense against violent threats.

Any intelligent person should be able to understand that it is not a rational decision to expend more for medical care, on the average, to treat an individual who cannot, on the average, repay that cost over his remaining working lifetime, allowing for a moderate rate of interest. The cost may be spread using insurance, but as a general proposition, only a certain proportion of the product of an economy can rationally be dedicated to medical care without drawing down the capital needed to produce goods and services, including medical services. Now some kinds of medical care can be economically justified, targeted on those who can be expected to be productive in the future, as a way to preserve the labor component of economic productivity, but only so much. That limited amount must, rationally, be allocated carefully to yield the greatest return on investment.

The Universe is not organized for our comfort or convenience. The "invisible hand<>" is not compassionate and may just as likely create a lifeless desert as prosperity. That we have an opportunity to live as long as we do is an accident that cannot be expected to long endure. Life taps into gradients of available energy to realize local reductions in entropy by increasing it more everywhere else, and living things, especially social species, can develop instincts to nurture their young and care for others to a limited degree, but only to the extent that enables genes to propagate themselves<>. Any investment of energy that does not pay off in reproductive success is not sustainable.

Our situation is complicated by the fact of technological obsolescence of human beings. Our capital is replacing our labor, and we can foresee that it may eventually replace all of it. When that happens the cruel laws of economics will dictate that further investment of energy in human life can no longer be sustained. The singularity<> approacheth.

On 03/26/2012 09:15 AM, Zietlow, Rebecca E. wrote:
The Supreme Court has repeatedly held that there is no constitutional right to health care, or to any economic benefit.

-- Jon

Constitution Society     
2900 W Anderson Ln C-200-322 
Austin, TX 78757 512/299-5001  jon.roland at<mailto:jon.roland at>
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