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Wakeforest22890 said:
June, what's your stance on substantive due process? Just curious.

Also I like to look at our 21st century society through a lens which conveys the Constitution within a context of said society rather than in a 1789 context.
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I think "substantive due process" is an oxymoron, and it's legal standard--those rights that are "fundamental to the rights of ordered liberty"--is a synonym "rights judges think should be enumerated but were not." I'd be happy if we reversed every single substantive due process case and began to grapple more with what the privileges or immunities clause means. See Thomas's concurrence in McDonald. With the privileges or immunities clause, at least we know what we are arguing about, rather than some judge-made repository for pure-and-simple policymaking. Either way, I think problems arise when we loosen the moors of the constitution to history and view it as a living document. I view the constitution as a structural document that should remain relatively static, unless changed through the amendment process, and the legislature should be the one making laws for society-in-time. The enumerated rights are sacrosanct (speech, assembly, search and seizure, jury trial, etc.) and must be interpreted in light of the technological advances of our time, but the rest the political process can figure out on its own for each generation.

If we, as a society, want to conclude that healthcare is a "right," which we basically have, we can implement that choice through the legislative process, which we basically have. We don't need the courts to do that for us.
 
I agree with your last two statements, which is consistent with my initial point that I believe health care is a right.

I don't really agree with the rest of it though. What do you make of the theory that the P&I is just related to fundamental rights of citizenship? Obviously you think it should be more expansive than that. Thomas has been pushing the P&I theory in several cases lately (over the past decade) but not much has come of it. I just don't think the framers (which is an interesting topic in and of itself since a lot of times they're treated as having one "theory" or there being an "answer" as to what each word of the Constitution means, when in actuality the meaning of words were debated even then. Another interesting thing is Jefferson's thoughts that the Constitution should be rewritten every 19 years as the dead should not govern the living, but I digress) and their thoughts carry completely into the 21st century. When you add to this the fact that it would be nearly impossible with the current political climate for an amendment to the Constitution to be passed, it becomes clear that the institutions have shifted rather dramatically over the past generation and a half.

I think substantive due process is a pretty solid place to start with rights which should be part of the Constitution. I would be shocked if a large portion of the framers in the current discussion wouldn't believe that health care would be a fundamental right which should be protected. Hell "life" is protected, and health is a damn big portion of life.
 
Wakeforest22890 said:
I agree with your last two statements, which is consistent with my initial point that I believe health care is a right.

I don't really agree with the rest of it though. What do you make of the theory that the P&I is just related to fundamental rights of citizenship? Obviously you think it should be more expansive than that. Thomas has been pushing the P&I theory in several cases lately (over the past decade) but not much has come of it. I just don't think the framers (which is an interesting topic in and of itself since a lot of times they're treated as having one "theory" or there being an "answer" as to what each word of the Constitution means, when in actuality the meaning of words were debated even then. Another interesting thing is Jefferson's thoughts that the Constitution should be rewritten every 19 years as the dead should not govern the living, but I digress) and their thoughts carry completely into the 21st century. When you add to this the fact that it would be nearly impossible with the current political climate for an amendment to the Constitution to be passed, it becomes clear that the institutions have shifted rather dramatically over the past generation and a half.

I think substantive due process is a pretty solid place to start with rights which should be part of the Constitution. I would be shocked if a large portion of the framers in the current discussion wouldn't believe that health care would be a fundamental right which should be protected. Hell "life" is protected, and health is a damn big portion of life.
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It is? Where?
 
jhmd2000 said:
It is? Where?
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Are you serious? "nor shall any State deprive any person of life, liberty, or property, without due process of law."

ETA: If you don't think this really means anything, then what do you make of the Due Process Clause in general?
 
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Wakeforest22890 said:
I agree with your last two statements, which is consistent with my initial point that I believe health care is a right.

I don't really agree with the rest of it though. What do you make of the theory that the P&I is just related to fundamental rights of citizenship? Obviously you think it should be more expansive than that. Thomas has been pushing the P&I theory in several cases lately (over the past decade) but not much has come of it. I just don't think the framers (which is an interesting topic in and of itself since a lot of times they're treated as having one "theory" or there being an "answer" as to what each word of the Constitution means, when in actuality the meaning of words were debated even then. Another interesting thing is Jefferson's thoughts that the Constitution should be rewritten every 19 years as the dead should not govern the living, but I digress) and their thoughts carry completely into the 21st century. When you add to this the fact that it would be nearly impossible with the current political climate for an amendment to the Constitution to be passed, it becomes clear that the institutions have shifted rather dramatically over the past generation and a half.

I think substantive due process is a pretty solid place to start with rights which should be part of the Constitution. I would be shocked if a large portion of the framers in the current discussion wouldn't believe that health care would be a fundamental right which should be protected. Hell "life" is protected, and health is a damn big portion of life.
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Evidence? It's not like health care didn't exist in the 18th century. Yet the framers didn't write "the right to health care is inviolate" into the bill of rights. It's one thing if you want to argue that technological advances present constitutional dilemmas for originalists (the framers, for example, couldn't have conceived of infra-red police searches), but health care isn't one of those issues.

As an aside, the amendment process is difficult by design. We don't need constitutional amendments to implement the most pressing policy decisions of our day. The legislative process works just fine for that. And that's by design--today's answers will be tomorrow's antiquated notions. Our legislative branches should be given enough leeway to make that determination without being overly bound by the "wisdom" of prior generations.
 
I mean I don't give much credence to the Framers on the issue of health care since the germ theory didn't come out until the late 19th century. I doubt that there was going to be much advanced discussion or theorizing on the right to health care at the time period whatsoever. I would consider this as much a "technological" advance as I would the increase in devices making 4th amendment jurisprudence an issue.
 
Wakeforest22890 said:
Are you serious? "nor shall any State deprive any person of life, liberty, or property, without due process of law."

ETA: If you don't think this really means anything, then what do you make of the Due Process Clause in general?
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Even if you give this clause substantive content, it doesn't meant the state must protect life. All it means is that the state can't take it.

All that means is that the death penalty must come with procedures, like a fair trial, right to a jury, right to cross examination, etc. It's patently absurd (and hopelessly anachronistic) to claim this has anything to do with universal healthcare.
 
I think it's an interesting discussion as to issues arising from a person's inability to afford something which others have in context of these rights. The right to due process is just for criminal cases obviously, but what does this mean for people who can't afford to hire a lawyer for civil issues and are left defending themselves pro se through the obstacle course that is the legal system. So in this case you have the right to stand before the judge, but what are your chances of actually succeeding and is this a constitutional issue at all? What about welfare issues? This would obviously be something you would argue the legislature should address and I'm not sure I disagree but just an interesting point.

I'm not necessarily arguing that this has to be pigeonholed into the 14th amendment, or even could with substantive context, just food for thought from reading your post. Somewhat of a non-sequitur but I got there thinking about how I think that the right to health care could be reasonably read into the right to life, especially in contexts where you get sub-par preventative care because you can't afford it. If welfare issues could reasonably be read into this area, I don't think it's a huge stretch to include health care.

I'm not really advocating one way or the other on these two issues and I know you don't agree with these being read into the 14th Amendment (and I'm not really sure I do either) just putting some thoughts out there.
 
Wakeforest22890 said:
I mean I don't give much credence to the Framers on the issue of health care since the germ theory didn't come out until the late 19th century. I doubt that there was going to be much advanced discussion or theorizing on the right to health care at the time period whatsoever. I would consider this as much a "technological" advance as I would the increase in devices making 4th amendment jurisprudence an issue.
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Re: healthcare, we are talking about a difference in degree, not kind. Again, healthcare existed at the time of the founding (and at the time of the ratification of the 14th amendment), but no one thought the constitution had anything to say about universal healthcare at the time.

The 4th Amendment is different. It prohibits unreasonable searches. That language sets the general parameters of a right and has enough flexibility to allow each generation, looking back at the original meaning as a guide, to determine whether this or that new-fangled search methodology is reasonable from a constitutional standpoint.

It's really apples and oranges.
 
Your first point goes to what I'm talking about, the role of the hospital and health care in general is substantively different in 2013 than it was in 1789 or around 1870. I don't think it is just a difference in degree, I think it is one in kind. There were no insurance companies, there were no hospitals providing the same services they provide today, and there were no HMO's, insurance companies etc. There would be no expectation whatsoever that the people in these time periods be able to write anything that should be taken as gospel about health care, so why wouldn't we read into the intent of what they were trying to do rather than looking at the exact literal language?

Soliders and police invading people's homes was something that was pertinent then and is pertinent now so this was well expounded upon in 1789 and continues to give a frame of reference for now because the underlying issue is the same: avoiding police presence where people have a reasonable expectation of privacy. It's apples and oranges to look at health care in 1789 and health care in 2013. It's not even close to the same. If the Constitution were being written now, do you honestly think there would be nothing in there about health care/hospitals/right to health? I mean that's a fine opinion, but I really don't believe that the writers would just reject one of the time's biggest issues. This is what the Constitution really is: the time's biggest issues where some issues continually permeate society over a long span of time.
 
Wakeforest22890 said:
I think it's an interesting discussion as to issues arising from a person's inability to afford something which others have in context of these rights. The right to due process is just for criminal cases obviously, but what does this mean for people who can't afford to hire a lawyer for civil issues and are left defending themselves pro se through the obstacle course that is the legal system. So in this case you have the right to stand before the judge, but what are your chances of actually succeeding and is this a constitutional issue at all? What about welfare issues? This would obviously be something you would argue the legislature should address and I'm not sure I disagree but just an interesting point.

I'm not necessarily arguing that this has to be pigeonholed into the 14th amendment, or even could with substantive context, just food for thought from reading your post. Somewhat of a non-sequitur but I got there thinking about how I think that the right to health care could be reasonably read into the right to life, especially in contexts where you get sub-par preventative care because you can't afford it. If welfare issues could reasonably be read into this area, I don't think it's a huge stretch to include health care.

I'm not really advocating one way or the other on these two issues and I know you don't agree with these being read into the 14th Amendment (and I'm not really sure I do either) just putting some thoughts out there.
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Understood. Before Lawrence, I read arguments that the 3d Amendment (no soldier quartering in the home) indicates, from a historical standpoint, a general principle that homosexual activity in the home should be protected from government intrusion. I disagree, but I appreciate the debate. I think the more we turn the inquiry to history, the better off we are from a constitutional standpoint.

When it comes to legislative enactments, however, history be damned. From a personal standpoint, I don't think there is any way that universal healthcare is a constitutional right. However, I'm much more sympathetic to the argument that, as a society, we, in the here and now, should enact laws that encourage the provision of healthcare to those who can't afford it. I don't think Obamacare solves the problem, but have no problem with the underlying principle, enacted legislatively, that healthcare is a "right."
 
I definitely agree with your last couple of statements. I don't have any problem either with things being legislated and if there could be reasonable strides made (which I guess you can call Obamacare) I wouldn't really have an issue with it...just a slow moving process but that's the benefit/drawback of deliberative democracy.
 
good posts by numbers and junebug. posrep to both.

Solely speaking from a historical perspective, and not making any argument one way or another about rights or the Constitution: The main difference between health care in 1776 and now is that in 1776 "access" to healthcare was not a meaningful phrase. if you got plague or measles or smallpox, or you were badly injured, you often died. The difference between death and life had very little to do with whether you were rich or poor or whether you had access to a doctor or not. A lot of what the medical community was doing was providing comfort and support. Most of the surgical and pharmacological interventions were ineffective or downright harmful. Hell, what a lot of "doctors" were doing in that era was probably worse than what the local Indian shaman would do. There was really not much of a concept of a "preventable" death - i.e. if a person had just had "access" to healthcare, he wouldn't have died. Most likely it would not have made a difference. Just as an example, in 1776 the death toll from the wounds suffered in the Boston bombing would have been far higher due to complete absence of trauma care and no ability to prevent infection, even if every 1776 doctor in Boston had been there to help.

Compare that to now, where we can say clearly and without doubt that if a person suffers many kinds of illnesses or wounds, if they have access to health care they will live, and if they don't they will die. We can also say that if a person has certain kinds of chronic illnesses, they can be a productive member of society with access to healthcare, but without that care they will be an invalid, die an early death, etc.

In my opinion this is a pretty massive conceptual change in the way we think about health care from a moral perspective. In 1776, the help of a doctor probably doesn't change the outcome. In 2013, in most cases it absolutely does. Knowing that providing care = saving life puts society in a much different place morally than in 1776.

Again, no Constitutional comment intended or implied.
 
Junebug said:
Even if you give this clause substantive content, it doesn't meant the state must protect life. All it means is that the state can't take it.

All that means is that the death penalty must come with procedures, like a fair trial, right to a jury, right to cross examination, etc. It's patently absurd (and hopelessly anachronistic) to claim this has anything to do with universal healthcare.
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What he said.
 
Junebug said:
Re: healthcare, we are talking about a difference in degree, not kind. Again, healthcare existed at the time of the founding (and at the time of the ratification of the 14th amendment), but no one thought the constitution had anything to say about universal healthcare at the time.
The 4th Amendment is different. It prohibits unreasonable searches. That language sets the general parameters of a right and has enough flexibility to allow each generation, looking back at the original meaning as a guide, to determine whether this or that new-fangled search methodology is reasonable from a constitutional standpoint.

It's really apples and oranges.
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Good thread folks.

Can we apply the same consideration to the 2nd amendment?
 
ONW said:
Good thread folks.

Can we apply the same consideration to the 2nd amendment?
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If your point is that the second amendment should be read in light of the types of guns that were around at the founding, that's actually pretty similar to what Heller says. Machine guns aren't protected under Heller because they aren't similar to the types of arms that a colonial militiaman would have. Handguns, rifles, and shotguns are. Future cases will have to determine the precise extent of the right, but it's clear that history is its limiting principle.
 
judical watch? lol. sailor loves his CDS right wing propaganda.
 
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