March 31, 2010
Natural Law and the 'Right' to Health CareBy Daniel H. Fernald
Is there a "right" to health care? The U.N., the EU, and now the U.S. Congress are on record as taking the affirmative on this question. The basic rationale is that the fact of everyone's needing health care (true) translates directly into everyone's having a right to it (false). Such thinking is emblematic of the perpetually puerile, primary-process predisposition of the modern liberal mind: "I need, therefore you give."
Or, as another famous "progressive" once put it: "From each according to his ability, to each according to his need."
What this admittedly abbreviated version of the "health-care-is-a-right" position misses is the critical distinction between negative rights and positive ones, and the further distinction between genuine and counterfeit rights.
In sum, one can either believe in the "right" to health care or the Constitution's foundation in natural law. It is impossible to believe in both.
The rights to "life, liberty, and the pursuit of happiness" enumerated in the Declaration of Independence are generally identified as "negative rights." They protect us from others (including the government) without obliging us to do anything for others, except of course to recognize that others possess the same rights as we. Negative rights are both limited and reciprocal. They are also eternal and unchanging, being part of the very fabric of nature itself. Like matter, they can be neither created nor destroyed.
The U.S. Constitution clearly reflects the same natural law approach to rights so eloquently expounded in the Declaration.
Despite many other disagreements, the great social and political philosophers who so influenced the Founders never argued that such-and-such "should" be a right; rather, they claimed that such-and-such was, always had been, and always would be a right. The question was never about creating rights, which would have struck them as absurd, but how to perceive clearly the eternal, unchangeable rights that did exist and always had existed.
Thus, e.g., even where Hobbes -- arguably the most "statist" of these great minds -- claimed that the Sovereign's power was unlimited, he did so based on a principled (if deeply flawed) view of natural law and human nature. So even though his philosophy differed greatly from Locke's, their shared conception of rights as transcendent, rather than man-made, united them on a critically important point. Emerson may be right that a foolish consistency is the hobgoblin of little minds, but a well-grounded consistency is the glory of great ones, even where they otherwise diverge.
In the natural law and related philosophical traditions, the vast majorities of rights are "negative" and consequently impose no affirmative obligations on others. One has, by right, the expectation that one's life will be respected, along with one's liberty and the right to live as one pleases. This is more than an arbitrary philosophy; it is thoroughly rational, and is indeed the very bedrock on which civil society and law itself rest.
In contrast to negative rights, a positive right can generally be considered legitimate only when it has been created by one's own actions. Signing a mortgage contract, e.g., gives the lender the positive right to collect its debt, even over your objections. Similarly, stealing from another is just cause for a court order compelling you to compensate the injured party, and even for you to be deprived of your liberty for a time via imprisonment.
Negative rights are derived from natural law and require only that one not act contrary to the rights of others. Positive rights are usually created by the agreement of two or more parties and require the reciprocal performance of agreed-upon duties.
Thus, the true distinction between positive rights and negative ones is that positive rights impose reciprocal obligations to act, whereas negative rights impose reciprocal obligations to refrain from acting. Consequently, there is no such thing as a one-sided "right." If you have given against your will and have gained nothing thereby, it is not a question of "rights" exercised, but of theft legalized.
Our entire system of entitlements is based on counterfeit positive rights posing as real ones. The creation of counterfeit "rights" leads inevitably and inexorably to the denial of real ones, as well as to consequences as ugly as they are undeniable.
The "right" to a home led to the corruption of Fannie Mae and Freddie Mac and the collapse of the secondary mortgage market.
The "right" to federal funding of artistic works has given us Andres Serrano's "Piss Christ" and the aptly named Chris Ofili's Virgin Mary covered in elephant dung, courtesy of the American taxpayer.
The "right" to food stamps has contributed to an epidemic of obesity among the poor.
Privileging fake rights over real ones is a pillar of the Law of Unintended Consequences. "Unintended," perhaps, but entirely predictable.
One shudders, then, to think what the "right" to "free" health care will get us, and at what cost.
This brings us back to the mantra of the entitlement mentality: "I need, therefore you give." How does one counter this? How does one distinguish counterfeit rights from real ones?
We have already seen the first test of a "right": reciprocity. No genuine "right," whether positive or negative, is enforceable against only one party.
The second test involves whether a claimed "right" conflicts with any other recognized right. If such a conflict exists, then the claimed "right" is a phony. Genuine rights never need to be "balanced" against each other. Any genuine right can coexist with all other genuine rights. For this reason, rights are naturally limited, and the creation (or "recognition") of new ones should be carefully scrutinized as a potential direct and imminent threat to liberty.
With this in mind, when one is forced under threat of imprisonment to subsidize the health care of strangers, such "life" as one may continue to have is not that of a freeborn citizen. It is rather characterized by an erosion of the full exercise of one's liberty, as one is coerced into contributing to the happiness of others while increasingly foregoing the pursuit of one's own.
So, Mr. President, those pesky negative rights that you decry may be legislatively overwhelmed, but not rationally denied. Despite your having midwifed into existence a monstrous violation of the legal, moral, and philosophical foundations of our Republic, it remains no less true that water flows downhill, the sun rises in the east, and I have no natural or legal right to my neighbor's checkbook -- for health care or anything else.
You could have Congress repeal the law of gravity, too, but saying so wouldn't make it so.
Or, to put the matter in more familiar terms: "You can't legislate reality."
Daniel H. Fernald holds a Ph.D. in philosophy and rhetoric from Emory University, and is an Associate Professor at Hankuk University of Foreign Studies in South Korea. He may be reached at email@example.com.