What with a slew of lawsuits challenging the constitutionality of Obamacare, people are getting serious about questioning the limits that the Constitution places on federal power. As a libertarian-conservative policy analyst, I’m often invited to speak at conferences where the other speakers are more traditional advocates of government control of Americans’ access to medical care. No matter how technical and nuanced the discussion, it usually drifts to the “right to health care,” and how “every other country guarantees universal health care.” So persistent is this notion that that there must be something to it.
Indeed, I’ve come to believe that the Constitution is perfectly willing to allow people a “right to health care,” and it’s in the Ninth Amendment. That’s the place where Robert Bork found nothing more than an “inkblot.” Constitutional scholars such as Randy Barnett and Kurt Lash have tried to restore the Ninth Amendment. As a non-lawyer, my understanding is very simple: The Ninth Amendment states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” So, if you claim a “right to health care,” there’s nothing in the Constitution that denies your claim. Indeed, libertarians and conservatives should be more willing to concede a “right to health care,” because once it’s defined as a right, the entire weight of the Constitution comes down against federal (and perhaps even state) control.
Where the Constitution enumerates rights, it’s pretty clear that the Founders’ bias was that your ability to enjoy any right was dependent on Congress not meddling in it. The primary example, of course, is freedom to practice the faith of your choice without interference by the federal government, guaranteed in the First Amendment. What we call “health care” today did not exist in the 18th century, so there was no incentive for the Founders to enumerate a “right to health care” and specifically protect it from federal interference. Officially established churches, however, were characteristic of Mother England and most of the states, so the Founders thought it necessary to single out freedom of conscience and a small number of other enumerated rights, while leaving the balance unenumerated in the Ninth Amendment.
To help focus our thoughts, let’s turn history upside down.
Imagine, for example, that 21st century medical technology had existed in the 18th century, and colonists were free to spend their own money on medical services that they choose. Imagine that everyone had also saturated themselves in James Cameron’s movie Avatar, such that a primitive faith in the healing force of the magical planet Pandora was universal and uncontroversial. The Founders may well have sought to constrain the new federal government by drafting the First Amendment to read: “Congress shall make no law respecting an establishment of a health-care system.”
Imagine further, that Moses, Jesus, Buddha, Mohammed, and countless other prophets had preached in America since the Founding, fragmenting citizens’ faith in “Pandoranism.” Conflict might ensue, and the people might seek to define a “right to religion.” If the government were to take the approach that the current one has to health care, it would set up a Department of Religious Practice, tax and subsidize church buildings and religious instruction, and grant money to “pilot projects” and “comparative effectiveness studies” to determine which religions were more effective. The law would require you to take up a religion that was available in an “exchange” authorized by the U.S. Secretary of Religious Practice.
Unfortunately, your “right” to practice your religion would be controlled by the government, because various faith communities would lobby the continuously for more money to build higher cathedrals and temples, leading to a budgetary crisis that would require the government to ration how much “religion” each community would get. Fortunately, unlike the Ninth Amendment, the Tenth Amendment addresses “powers,” and limits federal powers to those “delegated to the United States by the Constitution.” So, your “right” to health care is completely separate from any power delegated to Congress.
But we mustn’t think that the Ninth and Tenth amendments can only be wielded against Obamacare. They can be used to overthrow all manner of federal laws controlling people’s access go health care, going back at least as far as the 1996 Kassebaum-Kennedy Act (which we now call HIPAA, the Health Insurance Portability and Accountability Act), as I describe in more detail here.