The impetuous libertarian gun fanatic and rabble rouser Jon Caldara is at it again in his latest Denver Post op-ed ('Jared Polis and the New Human Rights', Perspective, Oct. 7). Caldara writes:
"Jared Polis insists: 'Health care is a human right'. Either my understanding of human rights is completely wrong or Polis's understanding of the English language is. I thought human rights were guarantees through natural law that you can do some things even if the society around you wants to stop you. Those activities and beliefs behind them, can't be ripped from you even if you're in the political minority. The government can't take away your speech, and expression, yur ability to assemble, own firearms. Government can't take property without due process, inflict cruel punishment."
Here Caldara demonstrates the typical truncated libertarian view that only negative rights count. In other words, there are only “negative” rights inherent in the Bill of Rights, and there can be no “positive” ones. A negative right implies that there are ‘x’ things the government can’t do to you, e.g. take away your guns or your property without good legal basis ("eminent domain"). . By contrast, positive rights assert there are actual positive rights to which you are entitled under the Bill of Rights, say health care and privacy. Most of those on the Right (as well as libertarians like Caldara) , who have only passing acquaintance with the Federalist papers, assert positive rights don’t exist, but they are wrong. They merely show they fail to grasp the concept of an "unenumerated right", i.e. under the ninth amendment of the Bill of Rights..
The latter has been well explicated, for example, by Prof. Garry Wills (‘A Necessary Evil: A History Of American Distrust of Government’, Simon & Schuster, 1999). As Prof. Wills has pointed out, the unenumerated rights are all those rights not already specifically declared or described in the existing Bill of Rights. The Founders thereby realized and understood there could exist rights in the future they hadn’t conceived of at the time of the Constitutional Convention, and so allowed those (then) undefined rights to become realized later. In other words, the rights allotted citizens are not limited to the rights actually and specifically delineated, i.e. in the Bill of Rights.
This opens up the basis for positive rights, not merely negative ones. Hence, Jared Polis - unlike our friend Jon Caldara- simply grasped the concept of the unenumerated right and how it paved the way for rights such a health care and privacy.
And why not? (Apart from the fact the U.S. is a signatory to a 1994 UN Declaration that health care is indeed a right.) Think about it carefully, from the perspective of Caldara that health care must not be a right, never and no how. So let us say I have no access to competent health care and in Caldara's view, no right to it.
I then contract Avian flu, Ebola or some other highly virulent disease, but for which I can get no care. (No money to pay for it) I am turned down at place after place and end up circulating amidst large crowds merely spreading the particular contagion to others. HOW is this helpful to the community I live in, how is it beneficial to our national security? It isn't!
This is where Caldara's ill-informed logic breaks down, i.e. "The new progressive bill of rights means the people around you owe you stuff".
No, that is Trump think. What it means is that by conferring positive rights like health care the whole community benefits because that one loose end which could unleash an epidemic is sealed. Closed, not left open. Rather then thinking in a limited fashion about "grabbing others' stuff" one is led instead to concur that all partake of the protections afforded by the tax commons. That goes for national defense - but also for health care.
It also includes an inherent right to privacy - another positive right. For example, if the presumption is no right to privacy then the Fourth Amendment of the Bill of Rights is meaningless. To restate that Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
But note, “secure in one’s person, house, papers, effects” implies PRIVACY! These are after all MY private papers, my private effects, my house, etc. If an inherent right to privacy was a myth then by all accounts being secure in one’s person, papers, effects wouldn’t matter. Hell, let the whole freakin’ world see ‘em! This is why in a fascist dictatorship “personal effects” don’t exist. “Personal papers” has no meaning. The state has full monopoly, de facto ownership on whatever the person has, even his own body. Hence, in fascist dictatorships, such as existed in Nazi Germany, all personal effects, papers could be seized by the Nazis on a whim or remote suspicion - under the Reich Laws. A fundamental right to privacy, meanwhile, insists there exist bona fide entities that one can uniquely own, e.g. papers, effects – including photos or what not- that are private. Without this fundamental right, then, “personal papers, effects” has no meaning hence the 4th amendment is meaningless.
Again, this is not exceptional so Caldara's limited view of rights as only negative breaks down. Caldara is correct that a right (positive or negative) retains that property irrespective of the population affected, as when he writes:
"In a society of only three people it would still be a violation of human rights for two of them to force the third into a religion, or take his arms".
True, but this is not the same as a government of three agreeing to a contract that health care for all members is a right - a shared responsibility - to protect each from a terrible disease that may befall one and spread to the others. In other words, the extension of the positive right is a matter of mutual self-interest. This is why Caldara's logic also breaks down when he writes:
"If it is a right to demands goods or services at someone else's expense then one person out of our fictional society of three could demand health care...and the other two must provide him that human right."
Well, they could also refuse - and die themselves- say if he contracts cholera. Caldara's claim is that "it's not a freedom" i.e. for the recipient of the care (say oral rehydration with salts in the case of cholera) but rather a "liability for the other two to provide". My argument is that it is not a liability but a very wise form of self protection to take proactive care of the 3rd member of the fictional society. Hence, it is beneficial to this mini society to deem health care a right, just as it would be for any larger society.
The whole problem, as I see it, is a failure of vision (and political moxie and will) to see positive rights as beneficial to whole communities or nations, not as liabilities to be avoided. Caldara is right about one thing, all human rights are unconditional - and that includes health care and privacy.
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