Keith Olbermann provided a collection of his somewhat heavy-handed special comments on health care tonight, comments inspired particularly by his father (who just died) pending experiences in the system, his absence from the show often a result of being there for his dad. I linked to my argument that health care is a constitutional right as well as a matter Congress has the power to legislate. One discussion was immediately a response to this:
Although Article I gives the Congress the power to legislate for the common good, I would never argue that this means that health care is a constitutional right.
On the other hand, anyone who argues that health care is not a Human right, is saying that it is permissible to leave an uninsured hit and run victim bleeding on the side of the road.
To review: Constitutional right? No. Human right? You betcha.
I responded:
Art. I provides a means for Congress to legislate in the area. It is not necessarily the place to look to determine if health care is a constitutional right as such.
If it is a "human right," and we are all humans, it would seem to be a right we all have that is not enumerated as such -- a "right" being something that has remedies, and government is in place to better secure them, at times obligating them to help do this. This might make it a 9A right. I'd add that in many cases, the average citizen has no legal obligation to help such a victim.
I also would think that it would be hard to truly uphold equal citizenship if health care is provided unequally, or that a certain select group is deprived of it. This would make it an equal protection matter, particularly since the government is already involved in health care. Equality would also affect non-citizens, since they too are protected by the Constitution in various respects. Since Congress has a particular duty regulate interstate commerce, inequities in national health care policy would be its logical bailiwick. Similarly, federal tax policy at times tries to promote equality.
Other constitutional hooks can be considered.
See here. Someone else was resistant to the idea of framing it as a "constitutional right," and some refused to accept that we all had some sort of constitutional "right" to such protection. A "right" doesn't mean the best care is secured, any more than a right to a lawyer means you have some "dream team." It doesn't mean that courts are involved in all aspects of the question; a possible comparison is how separation of powers is a constitutional matter that often is left to political branches to be decided. It is no less of constitutional dimension.
As I noted, perhaps strategically the first part is not the way to go. All the same, many agree with Nancy Pelosi when she speaks of a "right" to health insurance, one Congress clearly has the authority to secure in various ways. Bottom line, if it is so much a "human right" or basic matter of fairness, chances are there are ways for Congress to handle the situation. And, the word has a certain cachet that underlines the nature of the issue:
The word "right" is there already. I don't think it's mandatory to use it, but it doesn't fudge the issue since people basically use "right" here to mean a certain protection that state provides as of right, a certain special obligation that is different from good roads or other nice things that are not as essential as those basic things necessary for the general welfare.
Though lots of verbiage is provided, the idea that this all is somehow unconstitutional really is not something I take seriously. Not that it and other stuff (like "death panels," which as Keith notes, has hurt the promotion of a fundamental matter -- being prepared for end of life decision-making, including when you can't make your own decisions any more) is not repeatedly piled on, like some old fashioned manure dealer. Like Republicans who once claimed they agreed with the Democrats on over 80% of the bill, but like greedy bastards, do all they can to block supermajority rule. Can't allow Congress "to ram" something through ... only has been over a year now, decades in the long run. To block something that will help people while reducing the deficit. Something the other gang too often had been 0 for 2 in promoting.
Oh, and this "deemed passed" thing is moronic too.* Everyone knows the House Democrats are accepting the Senate bill in the process. The basic idea -- necessary since Senate Republicans refuse to allow reconciliation the normal way -- is to underline that the passing of the original bill is tied to the reconciliation fix. But, the rules of the Senate require the original Senate bill to pass now before the reconciliation bill can be passed by the Senate given the Republican obstructionism. Of course, like the hypocritical liars they are, Republicans are railing against the process (which they repeatedly used) necessary because of their own actions.
Passing major legislation in the face of assholes is hard work. And, the end seems to be in sight. Knock on wood. But, Keith is right, bottom line. Let's remember what basically we are fighting for here. How it is based on basic justice. And, why -- imperfect as it surely is -- the fight is worth it.
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* Some argue that it is simply not worth it to use such a too cute technique, given the voters will not be fooled into thinking the House did not support the Senate bill. Who knows what every last member (and there is little margin of error) has to deal with these days? And, in the long run, people as a whole won't care.
[Update: Jack Balkin as with the health care bill as a whole, has defended the rule being used here as constitutional. I'm with him; criticism gets "particularly tiresome and formalistic. Having to rehearse these arguments is like having to wonder about how many angels can dance on the head of a pin." I'm glad he showed a bit of annoyance, even if dealing in part with a former federal appellate judge. Update 2: Never mind.]
And, I think there is an important point here. The two bills are really a unit that has to be dealt with separately given the realities of the situation. The Senate bill alone is not what they ultimately are voting for in the long run. I can see some value in doing something to reaffirm the point, even if some will tell you the fix is really cosmetic in the long run. OTOH, Noah explains maybe not.