Sam and Samuel are having an interesting discussion about originalism and the constitutionality of healthcare. If they’ll permit me, I’d like to broaden that conversation somewhat, and then pose a question that I hope someone will take up.
What this conversation is about at a certain level is rights. It is about powers, yes, but ultimately the Supreme Court only steps in to curb the actions of Congress when rights are at stake, and so rights are really the most pertinent question. (The reason for this is long and interesting, but look up footnote four of US v. Carolene Products for the basis). Furthermore, the conversation is about the differences and possible contradictions between positive and negative rights, negative rights being restrictions on the government (no repressing speech, no national religion) and positive rights being requirements of the government (providing for the general welfare, health care). One might term negative rights “old” rights. They’re the rights the founders were chiefly concerned with. Likewise, positive rights could be termed “new” rights, as they really only began to be discussed after WWII. I would argue, perhaps controversially, that we are perched at a unique moment in American history in regards to new and old rights.
America perfected old rights. We were the first to enshrine them and have guarded them jealously, even going so far as allowing public figures to be inaccurately attacked in the name of vehement discourse (New York Times v. Sullivan) and allowing people like the Westboro Baptist Church to say what they want. Historically, Americans have taken great pleasure in the right to be left well enough alone. I think that it is safe to say that we have gotten old rights down. This puts us in the position of moving forward on new rights. Or not. We have to decide not only if we are capable of positive rights, but also if we can pursue positive rights without damaging negative rights.
Here it is interesting to note our differences with other countries. Not everyone shares our preoccupation with negative rights. German law, obviously impacted by Germany’s unique history, sees nothing wrong with banning Holocaust denial, unquestionably speech. Likewise, many younger constitutions place an emphasis on positive rights, even if that emphasis is aspirational. The South African constitution, for example, includes a right to housing, and the homeless have successfully sued the government for its failure to progress on affordable housing for all.
Now, I’m of the opinion that originalism (which, for the record, Sam, existed before and during the Warren Court) is a fairly tepid interpretive doctrine, and is at some level insulting to the document it supposedly reveres, but it is a legitimate one. Changes in facts like Sam cites (fancy flying machines, etc.) are not necessarily the same as changes in values. Values are tougher to define and arguably more important. Throughout American history, Americans have valued negative rights above all. Justice William Brennan took some steps to establish a right to welfare, but they were incomplete, and to this day represent the closest we have come to positive rights in American law. A Court ruling upholding universal healthcare would be a step in that direction. So what do you think, guys, is it a step this country should take?
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