Health care requires other people’s labor though. If you make that a right you risk needing to implement some kind of forced labor system (sure it can be obfuscated as much as you like).
Not taking guns doesn’t require anyone’s labor, so you don’t run into this hazard.
I’m not particularly pro gun, I just don’t think positive rights are practical from a design perspective.
> Health care requires other people’s labor though. If you make that a right you risk needing to implement some kind of forced labor system
Whether that's true or not depends on the exact parameters of the right, and, in any case, the US has compulsory civic labor notwithstanding the 13th Amendment (jury service actively, conscription historically). Jury service direct relates to a positive right.
It also has positive rights which require labor but which somehow are not achieved by forced labor (voting, for instance, requires supporting labor.)
> I’m not particularly pro gun, I just don’t think positive rights are practical from a design perspective.
And yet, the US has positive rights, and the system hasn’t collapsed (e.g.,.the right to assistance of counsel in criminal cases, for instance, in addition to others previously listed.)
Exercise of all rights is voluntary. Voting requires someone else’s labor (ballot preparation, vote counting, etc.), which is the attribute that you said makes positive rights impractical.
After reading your comments last night, I think there's an argument that some of these these things are process operational constraints on how the state can operate. For example, the state doesn't have to charge someone in court, but if they do they must also provide the option for trial by jury.
I think the construction of if the state does X, it must also do Y sets it apart from a universal positive right.
I'm not a lawyer, but I believe the state can refuse to provide a jury trial for a citizen initiated legal action, like a civil suit by declining to hear the case.
I think you could find a similar framing for voting as well.
As always, you simply need to provide people with a living wage and they will do things. A right to health care would simply become a national health system that is adequately funded. Then the only argument would be, how much do we need to fund that health care system to fulfill our obligation to provide people with a right to health care.
People become medical practitioners for many reasons and will happily practice medicine as long as they can make a living off of it without being coerced or manipulated. A few want to be able to afford a Ferrari, but the vast majority just simply want to help people and be able to thrive.
Clearly letting poor folks die is the most moral option.
If positive rights make you so uncomfortable, I'll let you know they are very much widespread in today's constitutions. My canton's has many economic rights enumerated, including the right to a proper shelter. And I don't hold it for a nasty totalitarian dictatorship (yet?)
A government constitution should be designed to be robust. It should be assumed that no rights will be removed under any possible circumstances.
The inclusion of positive rights simply reduces the space of possible circumstances the government can traverse without removing rights, and depending on what sort of positive right we are taking about it does so drastically. Giving the government the ability to remove rights is dangerous for obvious reasons (they aren’t really rights at that point, are they).
If the medical system is ever mismanaged to the point of insolvency, should the government have the ability to violate a constitutional right to get things back in order? If they are allowed to violate that right, presumably they are able to violate other “rights” in the same class depending on the circumstances as well.
No one is saying constitutions with positive rights are totalitarian. I am just saying that they are fragile and should be avoided for that reason.
If what you want is a government health care system that can be modified or canceled based on circumstances, then that’s fine, but you can’t call it a “right” since you aren’t treating it as one.
"If the medical system is ever mismanaged to the point of insolvency, should the government have the ability to violate a constitutional right to get things back in order? If they are allowed to violate that right, presumably they are able to violate other “rights” in the same class depending on the circumstances as well."
Well yes?
Some rights may be absolute. Some others may be limited. Things are rarely absolute. Democracies are more than their respective constitution. They also rely on their political culture and how healthy it is. Even if your constitutional norms are supposedely "weak", does it matter in the end? It's not a bench of judges who are gonna protect your rights, but citizens as a whole.
That's why this whole argument that positive rights being displayed as "flaws" doesn't make much sense to me. And why guaranteeing access to proper healthcare sounds to me like a well balanced risk.
What is more likely? Than the State will turn you into a slave through this positive right to healthcare, or that you will end up dead by lack of said guaranteed access to healthcare ?
> No one is saying constitutions with positive rights are totalitarian. I am just saying that they are fragile and should be avoided for that reason.
You may say that, but that doesn't necessarily make it true. If we look at how this works out in practice, are constitution with positive rights really more fragile? There's nothing fragile about Switzerland, for example; that's probably one of the most stable countries in the world. The US, on the other hand, seems to be constantly teetering on the edge of bankruptcy and/or authoritarianism. Government institutions frequently seem to violate the law with impunity, and now Trump, a major presidential candidate, seems to want to get rid of the constitution.
Political culture is probably much more important than the distinction between positive and negative rights, and I don't think a culture of hurting people or letting people suffer, is good for any country.
Income tax? Publicly funded education? Innumerable (in a comment) other things especially including Medicaid and Medicare?
> Not taking guns doesn’t require anyone’s labor,
It does. Somebody has to take care of all the bodies. Mass shootings and homocides in general are pretty expensive both directly and due to lost future productivity.
> Health care requires other people’s labor though. If you make that a right you risk needing to implement some kind of forced labor system (sure it can be obfuscated as much as you like).
You have the right to an attorney. The state hiring and assigning public defenders isn't "forced labor." I don't know where this canard came from. It makes no sense if you spend more than 10 seconds thinking about it.
Welp. Guess we can't have taxpayer funded roads then cuz all the forced labor needed for free roads. Guess we also can't have a right to K-12 education.
You don't have the right to roads. Similarly education is mostly implemented at the state level, there's nothing legally preventing a state from saying that public school is now K-8 only. Laws requiring people to go to school are kind of a mixed bag, and compulsory education laws usually only apply to children (and in some cases only to pre-teens). AFAIK there's no legal forms of adult forced labor, except prisoners who are exempt from some rights.
You don’t seem to understand what is meant by forced labor here. I am happy to explain it to you.
A right is something that can never be legally violated by the government.
It is possible for a health care system run by anyone to end up with a level of resources below what it would need to meet its commitments.
If government runs health care and health care is a right, then the government is not legally allowed to fail to meet its health care commitments. Doing so would violate the right to health care, and violating rights is illegal.
Therefore at that point the government must either compel resources be increased to match the commitment, regardless of any other factors, or cancel the right.
If our plan includes the potential for raising resources to an arbitrary level in certain circumstances regardless of all other factors at that point, then at that point we would by definition need to implement forced labor.
If our plan includes canceling a right under certain circumstances, then it is not really a right, is it?
This sort of theorising doesn't seem to be very relevant in practice, and I frankly only see this from Americans. Other countries seem to be doing much better without hammering on this needless distinction. They make their health systems work by making sure it's sufficiently funded and well-organised, and don't need to account for a major party simply wanting to destroy it just to hurt people (except possibly the UK soon).
There's a difference to having the right to something and being forced to do something. For example all states give the right to a K-12 education, up to a point (usually there's age limits, and some states also have pre-k).
However just because children have the right to go to school doesn't mean they're forced to actually go and sit down (eg Wisconsin v Yoder). The courts do recognize that parents have the rights to force their kids to do certain things. Eg you can ground your child and it isn't "forced confinement", you can make them go to school and it isn't slavery, etc. Those exemptions pretty much go away once someone turns 18
I am. But you dont make sense. All Americans have a right to K-12 education, it's funded by the government. How is that different from all Americans having a right to healthcare, being funded by the government? If someone doesn't wanna be in healthcare anymore they can still switch to whatever they want to. They're not forced labor any more than teachers are.
There is fairly well developed theory in this area, I don’t think I’m going out on a limb here.
Americans do not have a “right” to education in the same way they have a “right” to e.g. free speech. The government can reduce or even eliminate state funded education without violating the constitution. If not enough e.g. teachers will work for the state (for the pay offered, based on tax revenue available, etc), the state can respond to changing circumstances by reducing or eliminating the education services provided. If education were to be added as a “right” then this reduction or elimination in service would not possible, unless you make that “right” so flimsy as to be basically meaningless (i.e. if the government is able to meaningfully remove it, it is not really a right).
I don’t believe in forced prison labor at all, so yes I’d be happy to sign that petition. I’m not sure what it has to do with this discussion.
> Americans do not have a “right” to education in the same way they have a “right” to e.g. free speech.
OTOH, they do have a right to trial by jury, a right to counsel, and a right to vote in the sense that they have a right to free speech, and each of these rights require someone else’s labor.
Technically true, though not really a risk due to minuscule resources required to implement these. What percent of GDP do public defenders account for?
You pretty much started the thread talking about something technically true. If you're discussing rights that should be so universal they don't get changed in extreme situation like not being able to provide a service without forced labour, then why does the GDP matter? GDP doesn't exist in the constitution.
No, Americans don’t have a “right” to K-12 education unless you pervert the definition of “right”.
The government can easily change what public school is offered and the courts aren’t going to intervene and say “no, you have to provide K-12 education as guaranteed by the Constitution”.
I think the issue here is that most countries don't have to deal with a major political party trying to destroy their healthcare or education system, while the US does. Everybody may have a right to K-12 education, but what if states underpay teachers and make teachers criminally liable when parents get upset about their child getting taught from a normal school curriculum? I wish this was a ridiculous hypothetical, but it's basically what's going on right now.
A toxic political culture can lead a government to sabotage things it's legally required to provide. That said, that same toxic culture can also lead it to violate negative rights. The real problem isn't the distinction between different classes of rights, but the fact that one political party is eager to destroy or at least compromise those rights.
I seriously don’t understand people whose ethics accept that some folks will just die because they don’t want to pay an extra few dollars in taxes. You grew up here, your success or failure depends on the health of our society in many ways, and our society is falling apart because opportunistic capitalists drain all of the productivity with very little gain for the average person since the 70s. I guess we can keep playing Wild West until our country falls apart from malignant cases of not caring about your fellow human.
Fwiw, I am strongly pro universal health care, but agree with pfannkuchen’s framing of what a right is. I see it as clarifying position, not a muddying one.
Healthcare requires resources, it doesn’t happen just because everyone agrees upon it. We must structure our society to provide those resources, so all its members can be provided healthcare.
Exactly. Just the typical incredibly out of touch, childish and highly privileged view often expressed on this forum:
"The smart people can work remote in Bali for 2x the median USD salary. If your not one of the smart people then you can bath and wipe old people's asses all day while being exposed to all kinds of pathogens for the median salary. The reason we don't have more of this is because of capitalism and whatever politics I don't like".
Variations on this theme in pretty much every topic with over a 100 replies.
There is no individual "right to own guns" in the Constitution. When the second amendment talks about the right of "the people" it means as a collective. It's talking about curtailing the Federal government from restricting states from raising state militias. But we don't have a state militia anymore, it's been replaced by the National Guard.
There was no serious jurisprudence to interpret the second amendment as an individual right until the 60s. Guns were acknowledged as a practical tool and people saw practical issues with banning them, but that was it.
The supreme court disagrees with you and the only way to change that is to change the ratio of justices. Why do we even bother with a legislative body at this point?
The first amendment also refers to “the right of the people to peaceably assemble.” By your logic, is there no individual right to protest? The fourth amendment refers to “the right of the people to be secure in their persons.” Does that mean that you don’t have an individual right against unreasonable search and seizure?
You’re correct to identify “the people” as the key phrase, and you’re correct that the second amendment is referring to a collective right. But so are the other amendments referring to “the people.” The constitution is talking about a whole society, not individuals. E.g. the fourth amendment guarantees a society where “the people” aren’t subject to unreasonable searches from police. But that collective right also protects the individual. What applies to the collective applies to its individual constituents.
This makes sense in the context of the 2nd amendment: militias were “bring your own firearm.” The collective right was enforced through the individual guarantee. There was no need to interpret the second amendment in the past because it really wasn’t unclear what the framers meant. Some of the key figures in the Supreme court’s recent jurisprudence on the second amendment were prominent liberal academics like Larry Tribe and Akhil Amar. Here is Larry Tribe talking about how he changed his mind on the second amendment once he started seriously researching it: https://hls.harvard.edu/today/why-i-changed-my-mind/ (scroll down).
Your strongest argument is that the second amendment only applies to the federal government, not the states. That’s clearly true, but that’s true of every other amendment as well. The first amendment’s Establishment Clause clearly was intended to prevent the federal government from interfering with established state churches, or creating its own. The “wall of separation” phrasing wasn’t used by the Supreme Court until 1946. (Ironically, it was quoting the individual views of Thomas Jefferson, who also believed we should overthrow the government every couple of decades. With guns that every individual was entitled to bear!)
I’m willing to entertain the view that our whole incorporation doctrine is non-sensical, but that cuts more broadly than I think most gun control advocates would like to go. Moreover, the notion that the 14th amendment was meant to apply the second amendment to states is far better supported than the incorporation of the first amendment. Disarmament of freed slaves was specifically one of the concerns at the time: https://www.encounterbooks.com/features/racist-roots-gun-con...
That's a distinctly 20th century individualistic take. From the Magna Carta to the Constitution, "rights" are primarily collective rights. They structure the relationship between the government and "the people." The First Amendment is not there so individuals can "express themselves." It's to maintain the communication and transparency necessary for democracy to work.
> By your logic, is there no individual right to protest?
I'm not sure to what extent there is one to be honest. We don't really have concerns around enforcing public nuisance statutes when someone is being a public nuisance. I think some cities still have (largely unenforced) laws on the books about fining you for swearing. We only really extend such actions protection if it's being done as part of a larger demonstration and, even then, people can get wrangled into "free speech zones" or ordered to disperse when the public safety situation gets out of hand. In practice it's difficult to imagine how protest would even work without some amount of individual right to political expression, but that's an operational need to actually have the collective right in place. Similar standards for the press and search and seizure or cruel and unusual punishment. I view the right to privacy in the same way, where it's hard to imagine how you can meaningfully have a free press or protection from search and seizure or even due process without some acknowledged guard-rails around making sure government actions have a compelling public interest. I just don't see something analogous with firearms.
With firearms it actually is easier to imagine much less scope for an individual right because of the "well-regulated militia" clause.
> I’m willing to entertain the view that our whole incorporation doctrine is non-sensical, but that cuts more broadly than I think most gun control advocates would like to go. Moreover, the notion that the 14th amendment was meant to apply the second amendment to states is far better supported than the incorporation of the first amendment.
It is a awkward kludge to be sure. But at the time the second amendment was more-or-less an after-thought because of how the structure of the military evolved and the way the Civil War put a lot of constitutional "questions" to rest about how far the states' rights go. I really just don't think they imagined people in the future would extend the argument beyond all reason to assert that any person should have access to any level of firepower at their whim without any public interest in curtailing it. That's plainly absurd and the only reason we even accept it today is because big swathes of the country are in the grip of some crime-wave paranoia mingled with Red Dawn fantasies being stoked by the media.
And like I mentioned with the right to protest, we still do put up some guardrails around it in the name of public safety despite the general understanding of the right, which is why I'm generally against complete bans of firearms. But I think our understanding of what that 2nd amendment right actually means needs to be anchored to some idea of what these things are for. What is their purpose and what value do they provide to civil society or for enabling people to freely pursue life, liberty, and happiness? From that standpoint I can see wanting to permit access to tools for reasonable self-defense or sport/hunting uses. But you don't really need most of the tacticool gear that people worry about for that. I'm not even sure most people even really need a handgun for that. Right now, it seems like what the most vocal 2nd amendment advocacy organizations think they're for is to menace government officials and engage in acts of terrorism and insurrection. I do not believe this is a view compatible with having a civilized country or a functioning government.
You are stating legal misinformation. There is an individual right to own guns in the US Constitution. This was settled in District of Columbia v. Heller.
The health insurance companies and the hospitals involved in this scam of a system are responsible for so many deaths and bankruptcies. Every year they make record profits by denying care and raising prices. Nothing will be done to fix this, Biden certainly isn’t going to, the man’s campaign is paid for by them. This whole thing is just so damn frustrating.
My link above was about #ECMOGATE. The claim is that doctors were literally killing the unvaccinated by giving them different treatment plans that lead to more death.
Right to health care should be in the constitution instead of right to own guns.