Even though the House passed so-called “health care reform,” the debate over “entitlements” will not be going away. This is especially true if, as I believe, the bill makes things worse not better. In debates over entitlements many on the left frequently invoke the idea that whichever one happens to be at issue — health care, education, pensions — is a “right,” and therefore we should not worry about costs. After all, they say, did the authors of the Bill of Rights worry about “costs” when they passed the First Amendment?
As seductive as that analogy might be, it’s utterly misguided because it ignores the important distinction between negative and positive rights. Negative rights, such as the right to free speech, limit the State’s power to interfere with choices citizens might make. The First Amendment begins, “Congress shall make no law….” Negative rights do not require other people or entities to provide human or material resources to make that right a reality. Others are simply required to refrain from doing things that interfere; hence, the term “negative right.”
Positive rights, by contrast, require others to provide such resources. For a “right” to health care or education to have real meaning, it must entail the ability to coerce others into providing health care or educational services as needed. As philosophers say, rights are trumps. A right to free speech overrides the utilitarian calculations of particular circumstances. If you have a right to your property, it doesn’t matter how good the thief’s reason for stealing it is.
But how would does the trump work with a right to health care? Sure, we can give people money to spend on it, but how can we assure that medical services, and quality services at that, are actually delivered? Same with education. Can a positive right ever be a trump without enslaving those who produce the goods or services we allegedly have a right to — that is, without violating their negative rights?
I suspect that when leftists say people have a right to health care and education, they mean something different and that they are confusing means and ends. They seem to think that declaring something a right is an end in itself — simply doing so assures that the object of that right is secured. As I recently noted, this is the equivalent of the magical thinking of South Park’s “Underpants Gnomes,” whose business plan was: “Phase 1: collect underpants; Phase 2: ?????; Phase 3: Profit.”
Here’s the upshot: Declaring things like health care and education rights is an empty gesture unless one specifies what sorts of institutions would actually deliver those things and how those institutions would muster the knowledge and incentives to get the job done. Phase 2 has to have content to explain how the promised results of Phase 3 will be delivered! Merely declaring something a (positive) right does nothing to ensure that people will actually get what they allegedly have a right to.
The issue looks different if we think instead about positive rights as means rather than ends. If those who defend such rights were actually saying, “I think we should declare health care a right so that the largest number of people possible get the best health care possible,” at least they would be raising the right question. In response, libertarians might say, “Is declaring health care a ‘right’ really the best way to accomplish that goal?”
Here, as is often the case, libertarians might generally agree with leftists on the end: a society in which the largest number of people possible have the best health care possible. The question is how to make that happen. In responding to the claim that we need to declare health care a right, we must insist on knowing what particular institutional arrangement will be put in place to make that right real and then we must critically assess whether those institutions would do the job.
At the same time, we must continue to offer our own arguments about how alternative institutional arrangements would better deliver the desired outcome. It’s not that we don’t care about making sure people have the best health care possible. We do, but we think there are better means to that end than issuing declarations of rights. Such declarations not only fail to ensure the desired outcome, they often make matters worse by destroying the incentives and market communication necessary to deliver the goods.