Posted by: bridget | 3 September 2007

The Loss of Negative Rights

Rights, in a free society, are defined in the negative: e.g. the right to free speech, without government censorship; the right to seek an education, without government prhoibition; or the right to vote, without government coercion.  Positive rights are another animal entirely: the right not just to seek housing, but to be guaranteed housing; or the right to government-subsidised education, food, or transportation.

When Presidential candidates state that there is a “right to health care”, they are missing a piece: “without government intrusion.”  The government should not choose our doctors, our method of treatment, nor whether or not we choose to seek health care for a particular issue.   As the “right to health care” has become a positive right (i.e. the right to government-sponsored health care), we are losing the negative right (to seek health treatment without government interference).  John Edwards inadvertently explained this in his most recent proposal:

“It requires that everybody be covered. It requires that everybody get preventive care,” he told a crowd sitting in lawn chairs in front of the Cedar County Courthouse. “If you are going to be in the system, you can’t choose not to go to the doctor for 20 years. You have to go in and be checked and make sure that you are OK.”

The logical consequence of government health care is that that government will have a vested interest in how individuals treat themselves, which necessarily eradicates the negative right to seek treatment without government interference.  If they are to contain costs, they must mandate – with the threat of force – that individuals seek preventative care.  Those who fail to follow a government-mandated health care scheme will either be face a loss of property (through fines) or liberty (through imprisonment).

This elephant stated it before, and she’s almost sad to see Edwards prove her right: the implementation of a positive right reduces the negative right.  Now, where is the Left, with its incessant squealing about “Keep your laws off my body,” when you need it?



  1. As much as a I dislike Edwards I give him credit for being honest on this and saying something you would never hear Hillary or Obama admit. This is only the first of a string of government intrusions that will develop if socialized medicine is put in place. The government won’t just make us go to the doctor, they will also make us exercise, lose weight, control the foods on the local grocer’s shelves, use taxes to punish the unhealthy (who they perceive as responsible for their weight/sickness), etc.

    And I have no doubt that the result of violating these rules will be either fines or being cut off from benefits. And unlike the Canadians who have somewhere to go for medical care when their system won’t provide it (the U.S.), we won’t have a convenient and competent place to turn.

  2. BTW I too am waiting for the “keep your laws off my body” crowd to start complaining about this. But I wouldn’t hold my breath. One thing I’ve learned about the pro-choice community over all these years, they aren’t very strong at being consistent in their views.

  3. Healthcare is a nightmare isn’t it?

    On the one hand, universal healthcare sounds great! I mean, look a what a great job your local Department of Motor Vehicle does! Why wouldn’t we want government to manage your personal health? :-)

    But the realitiy is that government control is more often than not, extremely inefficient. It actually limits your options (freedom) in many ways, and your post recognizes this. In fact, currently many doctors and hospitals cannot afford to provide certain kinds of medical care because some Medicare and/or Medicaid programs often refuse to reimburse certain charges in full.

    Now, how does that help anyone when the services are gone? So much for government help.

    Of course, I don’t mind government-backed safety net programs to help the extremely needy, etc. But the current liberal agenda seeks to care for everyone, for life—the ultimate Nanny State. All of us would be forced to pay dearly for this inefficient, bureaucratic monstrocity with taxes many times the current rates. (Plus somehow pay for the War in Iraq which is an economic black hole all on its own.)

    On the other hand, private insurance (health or otherwise) is driven more by greed than honest customer service.

    I rather believe that the government should rethink the ways private insurance is regulated. Insurance companies are simply examples of privitized voluntary wealth redistribution systems with incentives to deny claims, under-pay claims, dump high risks, rewrite exclusions from coverage, and thereby increase profits. The “House always wins” (unless you find a good attorney), and insurance companies are betting that you won’t.

    For (a non-healthcare) example, lots of folks had homeowners insurance before Hurricane Katrina that would cover lots of disasters, but wouldn’t you know that most policies excluded hurricane coverage in those areas. What kind of an “insurance” company are you if you consistently exclude reasonable kinds of coverage, charge lots extra for it, or refuse certain catagories of coverage whatsoever???

    And this is exactly why the liberals get traction with voters on universal insurance ideas, themes,and promises. I think private insurance must be held to the flame for ripping off faithful premium payers when health crisis occurs and when disaster strikes.

    The current options just don’t seem very good or reliable.

  4. TT-

    Yep, the liberals will embarrass smokers and tell them they shouldn’t smoke, discriminate with separate but equal areas designated for smokers and nonsmokers only, legislate smoking bans because smoking is bad for your body and harms other people, but if you mention that abortion should be illegal because it kills little people—“DON’T TELL US WHAT TO DO WITH OUR BODIES!!!”

  5. Total Transformation,

    I doubt that the government will push taxes for the obese; I can, however, see them pressuring women to use birth control or get abortions (both of which are cheaper than labour and delivery), or doing any number of other intrusive things. As it stands now, if your HMO is too intrusive, you can find another one. (Incidentally, I do think that HMOs ought to function a bit more like life insurance companies: if they gave rate deductions for maintaining a certain weight or blood pressure, people would have an economic incentive to be healthy and use fewer resources.) Picking on fat people is politically unpopular, and someone would surely point out that such taxes would disproportionately affect the poor and the African-Americans.

  6. As for “Keep your laws off my body,” or “My body, my choice:” I’ve often longed to make libertarian bumper stickers with Leftist sayings, applied to libertarian causes. “Keep your laws off my body” is but one example. (I did this a while back for food:

  7. Jay,

    I actually disagree REALLY strongly with the Katrina issue. The homeowner’s policies were really explicit that they did not cover flood insurance; people, however, had the opportunity to obtain it through the federal government. Less than 2% of people took that opportunity – basically gambled and lost. They then sued their insurance companies for coverage which, if they had it, would have driven up the cost of their premiums to unaffordable levels.

    Therein lies my largest problem with tort lawsuits for coverage: people get what they did not pay for. Now, I can understand that vague definitions of “experimental treatment” may be used my insurance companies to deny any high-cost claim; however, flood insurance is a very specific, limited, enumerated item that is not covered by homeowner’s insurance. IMHO, if the residents of the Mississippi Delta want it, they ought to have paid premiums for it. I complained about that here:

    Here is some info on the flood insurance debacle:

    The federal government has underwritten flood insurance since 1968:

  8. Thanks for the distinction, Bridget. I learn so much on your blog! I’m going to link to this in my roundup.

  9. Neil,

    Thank you! :)

  10. Quote from one of your links:

    “Large numbers were totally uninsured when the hurricane hit the gulf region, but probably the majority did have some type of property casualty insurance. However, if past disasters are any indication, many, many of those affected will soon discover they are badly underinsured.”


    “The house always wins.” All those homes are destroyed. Premiums were paid. Insurance pays zero claims. Big Christmas bonus.

    The strange thing is, if fire had destroyed the home during the hurricane, well that’s covered! A destroyed home is the same destroyed home. Regular people don’t understand legalese (you know that) and insurance companies know that. Nobody negotiates an insurance policy. It’s a take it or leave it proposition. Regular people just know they are paying premiums so that if something bad happens to their home, they are insured. (Only to find out later, usually in crisis, how tricky insurance companies really are in the fine print.)

    Your links indicate that flooding is one of the most likely major disasters yet it’s typically excluded from insurance policies. Does that make sense? No! Because insurance is meant to cover loss. But insurance companies would much rather that you and I pay premiums on things more unlikely to happen. That’s how insurance companies keep the shareholders happy and the profits rolling other than the incentives to railroad customers already mentioned in my earlier comment.

    Besides, there is absolutely no incentive for private insurance to offer afforable flood coverage precisley because they can pass that risk to the government flood program which has augmented the market. Maybe the government shouldn’t be in the insurance business? Or maybe it is a safety net? Maybe people shouldn’t live in hurricane prone areas? Maybe it should be tough luck?

    I know I’m cynical, but insurance companies (health, casualty, etc.) quite literally sometimes get away with murder.

  11. I was at a Federalist Society conference earlier this year and a question from the audience raised this distinction between positive rights and negative rights – he later attributed it to Randy Barnett, and there’s also a nice and concise statement of the distinction in Harris v. McRae, 448 U.S. 297.

  12. Simon,

    I thought that it was a fairly common legal philosophy (hence my lack of linkage). Thank you for passing that along.

    Incidentally, which Fed Soc conference was this, if I may ask?

  13. Jay,

    You’re never going to get me to care if people don’t read their policies. Insurance companies used to offer flood insurance, but couldn’t offer it affordably with home owner policies. It was not insurance in the typical sense: generally, the only people who purchased it were the ones who used it EVERY YEAR. You have it backwards: it used to be a private insurance issue, until the insurers dropped coverage for lack of affordability. Afterwards, the feds stepped in, because they were able to apportion risk.

    I don’t hate on insurance companies. I don’t think they always act rationally, but I don’t think that the best way to get around that is MORE government regulation – and, especially, the theft which has occurred in the Katrina zone. Those people did NOT pay the extra $400/year for flood insurance. If you want more coverage, you have to pay for it. (Note that $400/year is for low-risk areas; these folks affected by Katrina would have been paying more than four figures.) If you haven’t paid for it and you demand it, it’s theft, plain and simple. The fact that they were ignorant about what they purchased (when a really simple internet check reveals all) is NOT my fault. Once federal aid comes in, or insurance companies hike the prices on everyone else, you’re talking about my wallet – either via higher premiums to account for their theft or higher taxes.

    This is not like finding out that your liver transplant is not covered. This is the dental insurance of the homeowner industry. You want it? Get a rider through the feds.

    It’s not the FACT of the destruction which counts, it is the methodology. Insurance companies can predict, in aggregate, how many claims they will pay annually due to earthquake, fire, flood, hurricane, or asteroids. If hurricanes would take a $1,000 policy and turn it into a $2,000 policy, such can be rationally excluded for those who wish to take the risk themselves.

    I really have issues with ANY philosophy which says, “Companies are evil greedy little things, out to make a buck off the poor innocent folks.” I bet anything that State Farm will reconsider insuring that area again; I am certain that they will give out flood coverage as a mandatory part of their policy. I’m sure that such a practice will make it less affordable (or not at all affordable) for those residents.

    People had the opportunity to buy insurance and didn’t do it. Personal problem.

  14. “This is not like finding out that your liver transplant is not covered. This is the dental insurance of the homeowner industry. You want it? Get a rider through the feds.”

    No. Fence replacement is the dental insurance of the homeowner insurance industry. Watching your home get destroyed and realizing you don’t get a new one is EXACTLY like not having coverage for a liver transplant.

  15. My theory: given the large extra sum of money that flood insurance adds to a policy ($400/year in non-flood prone areas; a Texas policy costs, on the average, $1,200/year and a Florida policy costs $786/year), this is NOT covered. Even assuming an individual who lives in a moderately flood-prone area, flood insurance would add, respectively, 50% and 32% to the cost of those policies.

    In 2005, there were roughly 6,000 liver transplants performed annually. There are roughly 300 million people in the United States. Liver transplants cost between $100,000 and $400,000 each. Assuming a (very rough) median of $300,000, the end cost, per American, is $6/year. If you adjust for insured Americans, this becomes $11/year.

    The average American health insurance policy costs $4,200 per person. Ergo, assuming 159 million insured Americans, liver transplants add 0.269% (yes, that’s a percentage – I already multiplied by 100!) to the annual cost of health insurance premiums in America.

    1. (number of liver transplants performed in US)
    2. (costs of liver transplants)
    3. (health insurance costs)

    My blog, my rules: I don’t engage in screaming matches, and commentors are not welcome to start them. You have just told me that 50% is equivalent to 0.27%. I’m sorry, but I’m calling bullshit – because those numbers are off by a factor of TWO HUNDRED. Comments are welcome, but I insist that they be grounded in reality. An error on the order of two orders of magnitude is utterly unacceptable.

    The relevant analysis is not what people think they are getting; it is what they are paying for. Anything else is theft and ensures that ignorance is the moral basis for said theft. I don’t condone that on my blog.

  16. Ask and you shall receive. Look what just came over the news wire…

    ‘NHS should not treat those with unhealthy lifestyles’ say Tories

    “Patients who refuse to change their unhealthy lifestyles should not be treated by the NHS, the Conservatives said today.

    In a bid to ease spiralling levels of obesity and other health concerns, a Tory panel said certain treatments should be denied to patients who refuse to co-operate with health professionals and live healthier lifestyles.

    And those who do manage to improve their general health by losing weight and quitting smoking, for example, would receive “Health Miles” cards.

    Points earned could then be used to pay for health-related products such as gym membership and fresh vegetables.”'NHS+should+not+treat+those+with+unhealthy+lifestyles'+say+Tories/

  17. Ooohhh! Aahhhh! Thank you. :)

    The government in people’s business. What a shock.

  18. I thought that it was a fairly common legal philosophy….

    Well, conceptually, it was something I’d been aware of (and had discussed) for some time, I’d just never heard it described by those labels before. This is one of the problems of learning law without the benefit of law school, I’m afraid – sometimes you miss stuff that the 1L course covers almost incidentally. :| (Although I’ll add that one of the profs on the stage had to ask for clarification of what was meant by the distinction, so that made me feel a little better!)

    The conference (so to speak) was this year’s student symposium in Chicago – I did an extensive post covering it here, and they’ve subsequently made video and audio of the panels available here.

  19. I must have missed the screaming match?

    There’s nothing wrong with seeking clarification of statements made. Just trying to understand. For example, you said, “There are roughly 300 million people in the United States. Liver transplants [6,000] cost between $100,000 and $400,000 each. Assuming a (very rough) median of $300,000, the end cost, per American, is $6/year.”

    Livers: 6,000 x $300,000 each / 300 million = $6 per year per person

    Homes: 84,000 x $180,000 each / 300 million = $50 per year
    per person

    Source: & National Median Home Sales Average (By the way, my 84,000 homes figure is extremely generous considering it represents all “structures affected” by flooding including barns, businesses, etc.)

    It appears to me that homes cost Americans about 8 or 9 times more than liver transplants. I’m not sure how you came up with a factor of 200 difference, but the fact is, if someone’s health insurance doesn’t cover a liver transplant, they get to come up with $300,000 on average. And if their homeowner’s policy doesn’t cover flooding, they get to come up with $180,000 on average to replace it.

    If everyone had to have flood insurance, it would be very affordable.

    “The relevant analysis is not what people think they are getting; it is what they are paying for. Anything else is theft and ensures that ignorance is the moral basis for said theft. I don’t condone that on my blog.”

    Contracts 101 is intent of the parties. The relevant analysis IS what people thought they were paying for. Lots of people could read an insurance policy and have no idea what it means. I think we can amicably agree to disagree on the role of regulation of insurance companies. But I think theft can be taking premiums for years and years from unsophisticated consumers knowing full well that they are terribly underinsured and likely don’t know it.

  20. (Bangs head against desk.)

    My blog, my rules, and you’re about to get deleted. Intellectual dishonesty doesn’t fly here, clear?

    Issue: Were these people reasonable to expect flood insurance to be covered?

    Analysis Comparison of cost of flood insurance with cost of homeowner’s insurance; as there is nothing to compare liver transplants with, AND they do not vary among the population the same way that flood insurance does, we’ll go with my methodology.

    Flood insurance costs $400 per person for moderately affected areas. Average policy: $1,000/year. Ergo, 40% increase.

    Liver transplants: $11/year per insured American. $4,200/year per insurance policy. 0.269% increase.

    If you want to see my spreadsheet, I’ll email it to you.

    If everyone had to have flood insurance, it would be very affordable.
    LMAO! Floods also vary among areas. Since the Hoover Dam was built, floods in Vegas (that do any real damage) are unheard-of. Why should people who live in Vegas subsidise those who live in New Orleans? That’s right – they should not, and they don’t. Flood insurance varies widely by geographic region. Even if everyone bought it, you would still have a massive disparity in costs. $250,000 in flood insurance in a high-risk coasta region costs $5,358/year. I’m sorry, but you cannot tell me (and you won’t on my blog) that insurance companies have been taking money from those poor, unsuspecting customers and not giving them value.

    There is but one logical consequence of the system you describe: all homeowners policies will cover floods, and people won’t be able to afford the premiums. Go ahead, tack on another five grand to New Orleans insurance policies; my guess is that people will drop them entirely.

    Now, let’s get on with more of your nonsense. You stated that flood insurance would be $50/person. Okay, my head hurts, but I’ll go ahead and identify your top lapses in logic.
    1. Health insurance is per person; home insurance is per home. There are NOT 300 million homeowner’s policies in America. Please return with a number of American homes.

    2. As per above, the difference in flood insurance for low risk and high-risk areas is massive. New Orleans, the place in question (focus, Jay, focus!) is a high-risk area: $5,300/year premiums for a quarter-million in coverage. Low-risk areas have a $300 premium for the same coverage. That is a difference of a factor of 17.

    The end result is that flood insurance does NOT cost $50/year. Even if it did, that would be the AVERAGE cost, and, certainly, those living in low-lying coastal areas which are prone to hurricanes would pay much, much more.

    If you want to do a weighted average, you’ll have to exclude homes in low-risk areas (i.e. most of the country).

    3. Oh, my favourite: I refuse to play statistics games with people who don’t know the difference between a mean and a median. Babe, don’t use the median when calculating total price. A quick example: the median of 1,2,3,10, and 138 is 3. There is no way that you would calculate damages to homes costing that value by saying $3/home *5 homes = $15, instead of $154 (i.e. a factor of 10). However, that is what you did with your numbers, and, until you play rationally, I’m ignoring them.

    So, let’s recap. You attempted to prove me wrong by using the median, not the mean; ignoring stats which demonstrate that your numbers are off by a factor of 10; ignoring the risk differential of various areas; and, of course, calculating this based on per-person, not per-household, costs.

    I’m an intolerant, horrible, greedy, soul-sucking conservative. Intellectual dishonesty isn’t tolerated here.

    Contracts 101 is intent of the parties. The relevant analysis IS what people thought they were paying for. Lots of people could read an insurance policy and have no idea what it means. I think we can amicably agree to disagree on the role of regulation of insurance companies. But I think theft can be taking premiums for years and years from unsophisticated consumers knowing full well that they are terribly underinsured and likely don’t know it.

    Um, NO. Contracts was not my best class, and I took it way back when, but, yeah, no dice.
    1. Intent does not override plain language. “Floods aren’t covered” means just that.
    2. You have a duty to read; if you don’t get it, you are supposed to get a lawyer to explain it to you. There’s usually a boldfaced section entitled “Exclusions.” If you live in New Orleans and are too silly to recognise that flooding is a likely issue, and you see the word “flood” under “exclusions,” don’t expect any sympathy from a just court of law.
    3. You also don’t get more than you pay for. A thousand-dollar policy does NOT give you the coverage of a six-thousand-dollar policy. There is a term for what you are advocating: “Unjust enrichment.”
    4. Oh, my favourite: the applicable standard is NOT a moron, a dunce, or a poor unsuspecting soul. It is a reasonably prudent person. The RPP knows that flood insurance is not included.
    5. Even if we were to accept your version, you’re only halfway there. Insurance companies may have policies of telling their clients that floods are not covered and giving them materials to the federal coverage, which would negate everything you’ve complained about. They may require customers to initial next to the flood exclusion. They may do a host of other things that remove the ignorance condition you’ve specified above.

    I’m pissed. What you are advocating is for people to obtain coverage that would have cost them $6,000/year for a mere $1,000/year because they are “unsophisticated consumers.” Statistically and legally, your argument holds about as much water as a NOLA levee.

    Three words for “unsophisticated consumers” who can’t read but buy houses anyway: boo frickin hoo.

  21. First of all I am wondering where this whole liver to home comparison started. Second, this whole discussion is making me glad I live on top of a huge hill. It would take the equivalent of a biblical flood to submerge even the bottom of my driveway- which is about several feet (if not more) lower than my door. Across the street on either side are massive drop offs.

    So it worked out well. No doubt when they showed up to confirm that we didn’t need flood insurance (the bank ensures such things) they guy who came to check must have chuckled when he saw the lay of the land.

  22. For Pete’s sake, I don’t know!

    To respond to Simon (and keep the comment schizophrenia going):

    This is one of the problems of learning law without the benefit of law school, I’m afraid

    But, but… you don’t have to go to law school!

    I didn’t go to Chicago; didn’t feel like making the trip as a not-quite-student. Sounded like a great symposium, though.

  23. […] Loss of Negative Rights, Part II In a previous post, the pachyderm described the philosophical/legal implications of negative rights v. positive […]

  24. Well, you don’t have to go to law school, but I think it really, really helps. ;) I had a couple of comments on the subject recently at Althouse (here and here), the gist of which is that independent study’s okay, but while “[l]aw school may not be perfect, … it’s better than no law school.” I’m constantly tripped up (or nearly tripped up) by things that I’d think anyone who’s been milled through law school ought to know (perfect example – I was writing a post yesterday about a § 1983 case against a journalist, which thoroughly bemused me at first blush (since when are journalists state actors, right?) only to discover in reading further that the Supreme Court’s long maintained that “[p]rivate persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of [§ 1983].” Sometimes I catch myself before I publish something dumb, sometimes not. ;))

    The symposium was very interesting, but I’m not sure I’d have gone if it were a massive trek – I can drive up to Chicago easily enough, but if it’s much further away next year, I probably won’t go. Plus, I felt a little out of place – FedSoc attracts all the very best looking students. ;)

  25. Simon,

    Where will the 2008 symposium be held? Are they moving it out West? (2004 was at Vandy; 2005 was at Harvard; 2006 was at Columbia.) Inquiring minds want to know (and purchase plane tickets, if need be)!

    I didn’t know that about Sec. 1983; my second thought would have been, “Okay, how are journalists state actors? This ought to be good.”

    Plus, I felt a little out of place – FedSoc attracts all the very best looking students. ;)

    WHERE?? It’s sad, because those things are always 80% male, but sheesh, I didn’t see a hoard of good-looking men. (Well, to be fair, in ’05, I wasn’t looking; in ’06, I got roped into a conversation/playing psychologist/life counselor with some guy who is full of teenage angst about not being able to fulfill his dream – i.e. write the Great American Novel. V. weird.)

  26. I don’t know where 2008’s goingt o be, but let me know if you find out. I imagine we’ll know before Christmas. If we’re both going, I’ll buy you a coffee. ;)

    I wasn’t looking – happily married man – but everyone I saw at the Northwestern symposium, male and female, was terrifyingly good-looking. You couldn’t avoid them. ;) I showed up an hour early, and had I not already driven for four hours, and been a little stressed about where to park, would have been too shy to say a word to the dazzling young lady running the front desk. [My highlight of the day was meeting Judge Sykes – no exception to the afore-mentioned rule about attendees herself – who turns out to not only be a very good judge, which I knew already, but very nice as well.]

  27. Wow,
    You illustrated this concept very well. I had long believed that less responsibility meant less freedom, but you illustrated very clearly how positive rights will decrease negative rights within that same area, which is a key concept.

  28. In my experience, any time the government wants to help you, you should flee in terror.

    If they take over health care, I am sure they will help me, even if they have to kill me to do it.

  29. Chance – Thank you. :)

    SST – I love that line! :) I’m definitely submitting it to Tammi’s Comment of the Week.

  30. […] Pachyderm on negative rights part I and part II (check it out – it is more interesting than it sounds!) and why people often have the […]

  31. Simon,

    I’m in serious Fed Soc symposium withdrawal, not having attended since February ’06. :( I’ll take you up on the offer of coffee.

    We get fully reimbursed for travel expenses if we drive; the national office will pay for 1/2 of a plane ticket. I do hope it’s somewhere within about twelve hours of here (traditionally, we’ll drive to Nashville, Boston, NY, Chicago, etc to get that benefit).

  32. […] John Edwards does away with negative rights. […]

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