Thursday, November 5, 2009

Judge Andrew Napolitano on Natural Rights and the Patriot Act

In this part 3 presentation of Judge Andrew Napolitano’s talk on Natural Rights and the Patriot Act, the judge opines that healthcare is not addressed in the U.S. Constitution.

He relates a question asked in a Wall Street Journal article as to whether or not the Congress could under the Constitution regulate healthcare. Obviously, they can’t. Healthcare is not mentioned in the constitution. The framers had hospitals -- the framers had doctors -- the framers got sick -- the framers needed healthcare. It was beyond their wildest imaginings that they would be creating a government that would somehow be able to regulate this kind of human behavior.

Well, the preamble to the Constitution, amongst other enumerations, states the principle of promoting the general welfare. I interpret welfare from its fundamental meaning: health, happiness, and well-being. What other way could anyone interpret the word welfare. Promoting the general welfare was not meant to mean welfare for the few but for all Americans. These constitutional principles were delineated because they were considered by the framers to be natural law or natural rights of which healthcare or the principle of welfare -- health, happiness, and well-being -- be kept as it was envisioned and were not to be violated. Keeping it, however, proportional and having no change from its original intent, and yet adopting it to the complex nature of modernity. To do that in today’s world needs regulation, to keep it in Judge Napolitano’s words, regular.

Of course, the framers had hospitals, doctors, got sick, and the framers needed healthcare. However, it was then called medical care, not healthcare, and physicians only treated the symptoms of disease; healthcare is a modern word that means the prevention, treatment, and management of illness and the preservation of mental and physical well-being through the services offered by the medical and allied health professions. The practice of medicine has gone from what were general practitioners to today where practitioners practice particular medical and surgical specialties. The framers did not have pharmaceuticals, as we know them today. In the epoch of the framers of the Constitution, there was no such thing as healthcare; furthermore, physicians did not need to be licensed. In the eighteenth century, life was not as complex. Then it was an entirely different America.

He goes on to say, Where in the constitution is it authorized that the federal government to regulate healthcare?

Judge Napolitano, in order to clarify what it means to regulate, in analogy uses interstate commerce as an example, which he defines as to keep regular: To keep regular, to make sure there is commerce between the states. Well Judge, how are you to keep regular that which is not regulated. It is a disingenuous statement. Frankly, the man should know better, and I believe he does know better, as to why there is a need to keep things, as he says, regular, to regulate, and to have regulation. What happens if, to use his analogy, interstate commerce is not kept regular as defined by government? Well, it would then be regulated by government legislation. The Judge is a man of the law. Law is a means by which government keeps human action regular, or as it is meant to be as determined by government. Isn’t the Constitution regulation, meant to regulate how we govern ourselves?

Further, to compare the healthcare reform proposals that would include the so-called public option to be as unconstitutional as the Patriot Act is simply specious, unreasonable, irresponsible, and dishonest. The Patriot Act is clearly unconstitutional. President Bush, his administration, and congress knew, or certainly should have known, that it was unconstitutional, but passed the legislation anyway. It does not say very much of our country for that to have happened. It clearly violates the civil liberties that Americans have always held dear. Healthcare is a civil liberty all Americans should share.

Evidently, Judge Napolitano is an originalist. I, here, also find disagreement with him.

The Constitution of the United States, adopted on September 17, 1787, is the document that delineates our nation’s guiding principles and the rights guaranteed to all U.S. citizens. It should not be violated; however, it is a living document. It needs to evolve and change over time as conditions change, and as our knowledge and technology evolve.

If the Constitution from its beginning had been intended to be a static document, it would not have been amended twenty-seven times, and there would not have been the first ten amendments known as the Bill of Rights, adopted December 15, 1791, even if it was intended at the time to be a part of the bill at some later time. It was four years after the Constitution that the Bill of Rights was adopted. In addition, there would not be a need for a Supreme Court. The Constitution would simply be the carved in stone law of the land.

Particular to my view on the constitutionality of healthcare regulation is my analogy of it to the Second Amendment. The Second Amendment to the United States Constitution is the part of the Bill of Rights that protects a right to keep and bear arms. The text of the Second Amendment states, A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

It is particularly disturbing to me that many in congress, as well as many Americans, view that it is a citizen’s right to bear arms, but it is not a citizen’s right to affordable, reliable, and accessible healthcare. That which in the preamble to the Constitution of the United States affirms that in order to form a more perfect union, America needs to promote the general welfare.

What do you suppose would happen if today’s private sector arms dealers were non-restrictive, laissez-faire, free-market capitalist. For them to operate without any restrictions or regulation whatsoever. What kind of a country would this be without some form of regulation on firearms? In the eighteenth century, it was never envisioned that there would be the number of firearms, availability, variety, or lethality of today’s weaponry. Citizens of the eighteenth century were able to band together and were capable of defending themselves, their communities, and their nation against a tyrannical government(s) armed forces or police force(s). In that Zeitgeist life was considerably non-restrictive and libertarian. For the most part, their armaments, with the exception of artillery and naval forces, were equal to any government-armed force. However, today, to own a weapon that would be effective against any government(s) armed force(s) is absurd.

It is true. There have been many abuses with regulation, mostly due to the drive for profit, an unacceptable quest of profit by the public and by the private sector. Nevertheless, what would healthcare look like today if our nation continued without regulation of the industry (a term, by the way, even though it is used in relation to healthcare, I don’t like to use because of the implication of profit)? In particular, absence of the licensing/certification of physicians, hospitals, and all of the other allied, affiliated, and supporting medical services.

It would be grand, but utopian, to live in a country without restrictions, without law or regulation, and completely libertarian. It would equally be even grander, and extremely beneficial, if we could evolve into a nation and world free of dependency, restrictions, regulations, and other hindrances placed on us, not only by government but by private enterprise as well, that are endemic in a money-based, capitalistic free-market system. I am acutely aware that there are not many who will believe it, but over time, we can evolve to that place. That is not a utopian dream!