Positive Rights and the Affordable Care Act (a.k.a. Obamacare)

The big story today every news outlet and political blog is talking about is the SCOTUS decision on the Affordable Care Act, ruling 5-4 in favour of the Act’s constitutionality. Now, I’m not a constitutional scholar by any stretch of the imagination, so I’m not going to say anything at all about whether I agree with the ruling on constitutional grounds. Anything I’d have to say about that would be based purely on second-hand information I’ve picked up while following this story, so it would be of very little use to you or me to go on about it. Where I do have some experience is in the realm of meta-ethics, and I think this is the more interesting area to go looking into this story. Clearly, a personal bias, but write what you know, right?

At the heart of the question about the ACA in particular and socialized medical care in general is whether healthcare ought to be considered a right, and on what grounds. Critics of the Act, when they aren’t bogging everything down in myriad fine points of constitutional law they believe backs up their opinion, are usually basing their objection to this law on the grounds that it involves invoking something called positive rights, and claiming that this is an improper move to make philosophically. In the brand of conservatism currently ascendant among North American right-wing parties, there is no such thing as a positive right, only negative ones. (For the purposes of this post, “conservative” is used as a blanket term covering conservatives, neo-conservatives, libertarians, and anyone else on the right-wing side of the political spectrum.)

So what is the difference between a positive and negative right? The simple answer is that a positive right places an obligation on others in society to provide something for you, while a negative right places an obligation on others to avoid doing something to you. In the example of something like free speech, nobody is obligated to provide you with a forum to voice your opinion, but they are required to allow you to speak your mind when you do find a way to do so, hence free speech is a negative right. An example of a positive right would be something like education, where everyone in your community pays school taxes that go to provide children with the necessary buildings, supplies and staff, so this would be considered a positive right, as it requires citizens to provide tax dollars in order to provide the needed funds.

The reasoning behind conservatives’ rejection of positive rights as a concept is the way they ground the notion of rights in general. Violating a negative right involves hindering a person’s free exercise of will in an unjustified manner. Most conservative theorists will recognize that negative rights are not absolute, and very few would fight for your right to yell “FIRE!!!” in a crowded theatre, to use the standard limitation example. In most conservative theories of rights, your right to swing your arms around is absolute, right up to the point of making contact with my nose. You are free to own what you like, say what you like, do what you like, so long as it doesn’t unfairly interfere with the things someone else might want to own, say or do.

This view of negative rights hold up under both conservative and liberal theories in most cases, with a few points of disagreement on the fine print items like hate speech or contraceptive use. In principle, there is much more agreement than disagreement on the topic of negative rights, but the matter of positive rights is a point of major division. While conservatives deny their existence, liberals (and again, “liberals” is a broad, catch-all term here for anyone left of center) have usually tried to justify the concept of positive rights by pointing to the fact that negative rights are useless without certain positive provisions, like literacy, health and similar social spending programs. The thinking is that if you don’t have your health, you can’t exercise your right to public assembly, or if you aren’t literate, you can’t freely participate in the public exchange of ideas, and there is something to be said for this kind of argument. The problem is, this is a utility argument that most conservatives aren’t buying because it interferes with the way they’d like to exercise their own freedoms, violating what they see as their negative rights against government interference in living a self-directed life.

Fair enough, I suppose. If you do in fact wish to keep your money to yourself to the greatest extent possible while living in a society, it would run counter to that wish if society were to require you to hand some of your money over to provide care and education for others. In the world of Citizens United, you could even call it a restriction of your right to free speech; giving your “voice” to political programs you don’t support yourself. However, is this really the whole story, or is there something more that is being neglected?

What about the benefits I derive from you being healthy enough to do your job and provide the goods or services I need, or from the education and training that enable you to contribute to society? I gain a real benefit from the fact that the people around me are for the most part literate and able-bodied enough to keep the economy going, does that count for nothing in the question at hand? Every single day, I gain some small benefit from the fact you went to school, got regular check-ups, were able to drive to your job on public roads, and are kept safe by police and fire services. Granted, the benefit I gain from you personally may be exceedingly small, but the correlation here is that I very likely have only done you a similarly small amount of good too. Looking at the aggregates, however, the whole thing scales up in a big hurry. When everyone makes a small contribution to the general good, everyone benefits from it, either directly or indirectly, in big ways.

Your lifetime road taxes would likely pay for about a mile of pavement, but all our taxes pooled together build necessary infrastructure that gets us all where we’re going. Your lifetime contributions to the health system might pay for an x-ray machine, but the tax pool once again builds whole hospitals and medical schools. Now, how much would you benefit from your own personal x-ray machine without a skilled technician to run it for you, a doctor to interpret the results for you, or a surgical team to do something about it if the work of the first two turns up something scary?

But wait, you might say, I purchase private health insurance, which protects my right to freely choose my provider, while pooling my money with the money of other healthy people hedging against that future something scary. It’s the best of both worlds, I get to keep my negative rights while taking advantage of pooled risk, it’s great! Well, that’s as may be, it very well might be great for you, but what about everyone else? What about the future doctor who comes up with a cure for your future something scary? Or rather, the kid who would have been that doctor, if he hadn’t made the rash decision to be born to a poor family and died of a childhood disease because the crappy insurance his parents could barely afford wouldn’t cover that particular childhood disease, or at least not in a timely manner. Yeah, that kid. The one who would have saved your life if he’d lived to adulthood.

Are you starting to see the reasoning here? Your positive rights are derived from the laundry list of ways I benefit from your flourishing. You become a teacher and I learn to read, you become an EMT and I survive a potentially fatal accident. The way that society interconnects all of us and spreads social goods far and wide gives rise to an obligation on my part to see to it that the whole thing keeps on giving me schools and hospitals. Because I can flourish due to what others have done for and given me, I have an obligation to provide for the flourishing of others.

Nobody, and I mean nobody is exempt from this. I’m sure there are some Ayn Rand fans out there that see every one of their fellow citizens as parasites and leeches, cloying at them with their groping, overreaching hands for the fruits of my labours, what I’ve earned by the sweat of my brow. While these people are passionate and often convincing, John Galt is a work of fiction, there is nobody alive in the real world who does no depend on others for their flourishing and survival. Without the farmers providing the food, Mr. Galt dies of starvation; without the justice system and general sense of moral standards, Mr. Galt dies with his head caved in for the sake of his tie pin and the cash he’s carrying. Everyone depends on the kindness of strangers, just as a prerequisite of living around other people.

To sum up, if you really are determined to owe no man for anything, it’s too late, the ledger is already way past your ability to pay it back. The efforts of millions of other people have gone into making you who you are, there is no such thing as a self-made man. If you’d like to cash out and move forward as a free spirit, calling no man sir, I would invite you to make your way out to the woods and Walden the hell out of your suddenly much fewer remaining years. The rest of us will accept our obligations to the people around us and enjoy the countless benefits of living cooperatively with other people


3 thoughts on “Positive Rights and the Affordable Care Act (a.k.a. Obamacare)

  1. It seems to me that this establishes rather less than one might like, which is not to say that I disagree with the claim that there do exist a good many equal positive rights. For one thing, this doesn’t establish why everyone ought to be endowed with identical, in terms of both quality and quantity, positive rights. One can imagine, for example, that certain individuals – say, Pasteur – have contributed more to their fellow citizens and that other individuals – many of us, I won’t name names – have contributed less. If one accepts the aforementioned asymmetry of contribution, as I think most would, then one has to further show why it is that that does not entail, or at least allow, a consequent asymmetry in one’s positive rights. In other words, what is it that endows us all with the same positive rights, rather than asymmetrical rights tied to our contributions? Your argument might establish that we all have some limited positive rights, but I’m not sure that the grounding positive rights in the contribution of individuals establishes that we all have the same positive rights.

    Furthermore, I don’t see that the argument doesn’t presuppose that one couldn’t flourish under, for example, a Nozickian state. You occasionally refer to “society” as something that spread social goods, and enables human flourishing, whereas surely one so inclined could respond that I owe nothing to society but rather to the EMT them-self, for whose services I would have to pay, or to Fleming and his estate [fn1], to whom I would have give something in return for penicillin. If one tended towards such a response then I don’t see why they would accept that they owed something to society, or their fellow citizens. More accurately, I see how this argument might be serviceable in the healthcare debate when used against those who support a minimal state already but, for those who support nothing more than anarchy I don’t see how it does much to their claim that we only have negative rights. [fn2]

    [fn1] This is a terrible example; there would, of course, be no copyright enforcement in such a state.

    [fn2] That being said, I believe that one needs positive rights in order to establish a right of acquisition and, more to the point, I don’t see that any anarchists/minimal state theorists have successfully established such a useful theory of acquisition. Nozick’s Lockean attempt, if I remember correctly, was perhaps the most tepid argument I’d see in a while.

  2. I suppose that I ought to add that I would have posted on the UofS philosophy facebook group but for the fact that I dislike both the formatting of facebook and their impositions on length.

  3. Thanks for your comments James, much appreciated. You make a good point on the asymmetric contributions cashing out to asymmetric rights; my first thought in response would be to point out that negative rights have limitations too, and I did not intend positive rights to represent a cradle to grave safety net that kept any bad thing from happening to anyone ever. If that’s how it came across, then that’s on me and I need to clarify that in future work on this subject.

    What I think is accomplished by this argument is a basic, minimal level of protection for all citizens, based not on their own contributions but as a repayment of the benefits already gained. If we were to dispense positive rights based on personal contributions, babies would have no positive rights whatsoever, and I think we can agree that this would be a poor outcome. The benefits we receive from living in a society are not based on our contributions, I don’t receive more access to roads because I pay more fuel tax, I would be able to use them on a bike as well as a car.

    Once again, thanks for commenting, it’s good food for thought.

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