Academic journal article Journal of Markets & Morality

Health Care, Natural Law, and the American Commons: Locke and Libertarianism

Academic journal article Journal of Markets & Morality

Health Care, Natural Law, and the American Commons: Locke and Libertarianism

Article excerpt


In June of 2012, the Supreme Court of the United States upheld the "individual mandate" of the Patient Protection and Affordable Care Act of 2010 (ACA) as a legitimate exercise of Congress' power to levy taxes. The fortunes of the ACA, however, are reversible: (1) political opponents have vowed to seek congressional repeal at first opportunity; (2) further constitutional challenges are underway in lower courts; (3) a few states are considering nullification of the federal mandates; (4) many states are leaving the insurance exchanges to the federal government; and (5) other states are declining to expand Medicaid coverage. No judicial ruling, in any event, would end the political debate.

Whatever one's appraisal of the legal significance of this ruling, it does not (and could not) address the underlying issue surfaced by the prospect of universal access to health care. Constitutional debate over congressional authority, in this case, effectively functions in the public square as a rhetorical proxy for a philosophical disagreement over how we conceive our national compact--that unwritten and unsettled consensus among fellow citizens concerning what kind of a society we aim to be and, accordingly, what each of us owes to and can claim from one another. This disagreement correlates with two further issues--the legitimate purposes of government and the natural rights of humanity. It is this deeper disagreement in the body politic that gives this issue its social currency and emotional content and ensures that whatever the fortunes of the ACA, health care will remain a salient issue of political debate. (1)

This article is a critical engagement with that position presenting perhaps the strongest argument against universal access to health care: libertarianism. (2) What I seek to demonstrate is that, despite libertarian protestations, one can build a robust argument for a natural right to health care as well as for the legitimate function of government to guarantee access to health care on the basis of that authority to which libertarianism appeals to deny such a right, the political philosophy of John Locke. (3) Three preliminary caveats are in order. First, the argument to be presented is intended as a defense, not of the specific policies of the ACA (whose merits are debatable), but rather of the moral goal of universal access to health care. Second, the argument here engages not the Libertarian Party platform but the libertarian philosophical position. Third, although my line of thinking runs parallel to the principles of Christian social ethics, because I have deliberately constructed the argument here to maintain an open dialogue with the libertarian perspective even while challenging libertarian logic, I do not appeal directly to either biblical or ecclesial authority. In order to avoid begging the question, I construct the argument within the boundaries of the natural-law tradition as presented by Locke (and his predecessors), who believed the natural law to be grounded in divine will and operative through divine providence.

The Libertarian Argument: Natural Rights versus Health Care

In its simplest (and most popular) form, the libertarian argument might be framed this way: According to the natural law, the three most basic rights are life, liberty, and property. Universal access to health care, far from being a right, is a violation of the individual's rights to liberty (freedom of choice) and property (fruits of labor). The conceptual key to this argument is that liberty and property are understood as natural rights--decrees of nature. Such rights are knowable to reason but are neither created by human choice nor open to political negotiation. Health care, by contrast, is understood as a social right, existing by human convention and subject to political arbitration. The implicit assumption is that nature necessarily takes moral priority over society: What natural law has decreed right or wrong, the negotiated choices of political society cannot justly countermand. …

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