The following column responded to a piece of legislation filed in the N.C. House in 2004. More than three years later, as presidential candidates tout plans for allowing the government to crowd out private-sector health care options, the arguments against an artificially created “fundamental right” still make sense.
RALEIGH — Alexander Hamilton was, some believe, just making a debater’s point. He didn’t really mean it. Nevertheless, an argument that Hamilton offered against adding a Bill of Rights to a proposed United States constitution in 1787-88 has proved to be a prescient one.
He argued that tacking on a list of “protected” rights to the constitution would have at least two insidious consequences. First, to erect a wall against the government doing something in a particular instance would imply that the government had the proper authority to do it in general. That is, Hamilton argued that since the U.S. constitution was one of enumerated and limited powers, it did not grant Congress, the president, or the federal courts the power to do what many critics of the constitution, usually known as Anti-Federalists, said they feared. Such powers were left to lower levels of government to exercise, if that, he said.
Second, Hamilton suggested that no list of rights enjoyed by individuals in a free society could be comprehensive. To list some but not others would, he argued, imply a hierarchy of rights that did not exist and would tend to weaken the institutional protection for the many individual rights not enumerated. Far better, he argued, would be to focus on limiting the powers and duties of governmental officers to a discrete list, which was feasible, rather than trying to list individual rights, which was not.
Of course, Hamilton lost the debate. Anti-Federalists were not mollified — some would use the term fooled, given Hamilton’s subsequent attempts to expand the scope of the federal government’s economic and financial powers — and our own cantankerous state of North Carolina had clearly indicated that the addition of a Bill of Rights would ensure its entry into the union (it had not participated in the first presidential election in 1788). Moreover, the framers of the Bill of Rights promised to address Hamilton’s concerns with the 9th and 10th amendments. The first stipulated that the enumeration of some rights would not be understood to disparage the other individual rights retained by the people. The second sought to ensure that the enumerated-powers doctrine meant what it said — that if the federal government was not expressly authorized to do something, then it could not and must defer to state governments or the people as individuals. Unfortunately, neither has been much cited by lawmakers or courts to limit governmental power and protect liberty.
I’m violating one of the main principles of column-writing by burying my topic sentence so far down, but in this case it felt right. Rep. Verla Insko of Chapel Hill has again introduced a proposal for an amendment to the state constitution to make health care a fundamental right for all North Carolinians. One reason why I didn’t lead off with this was that the proposal is, in one sense, difficult to take seriously. It would be an unmitigated disaster. It would inevitably draw government bureacrats into deciding what kind and level of “health care” was an entitlement, and by expanding our current third-party payment system further, it would lead to a cycle of escalating cost followed by heavy-handed regulations that would squelch choice and medical innovation.
But that’s not the point today. What really bothers me is that the proposal exhibits a basic misunderstanding of the concept of fundamental individual rights. A “right to health care” is really an intrusive claim on others, a right to coerce others at the point of a gun to finance one’s medical care. It’s not like the freedom to speak, the freedom to worship, the freedom to work and keep the fruits of one’s labors (a fundamental right recognized in North Carolina’s state constitution). These rights constrain government’s power to coerce, to deprive individuals of their freedom and dignity. A “right to health care,” no matter how benign it may sound, does something like the opposite.
Naturally, and I mean that in both sense of the term, I believe that human beings have a wide variety of moral claims on each other. Helping those in need is one widely recognized by most religions and philosophies of life. What matters for the purposes of constitutional government is which of these claims can justly be enforced by violence or the threat of violence. Constitutions don’t create fundamental rights; they recognize preexisting natural rights inherent in the social contract that creates a government, that grants some a monopoly on the first use of physical force to accomplish truly public ends.
Hamilton argued that enumerating rights was dangerous. He didn’t know the half of it. Enumerating something like a “right to health care” wouldn’t just serve to diminish freedom and expand governmental power by implication. It would do so directly.
Hood is president of the John Locke Foundation and publisher of carolinajournal.com.