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Health care, natural law, and the American commons: Locke and libertarianism.

Introduction

In June of 2012, the Supreme Court of the United States upheld the "individual mandate" of the Patient Protection and Affordable Care Act of 2010 (ACA) as a legitimate exercise of Congress' power to levy taxes. The fortunes of the ACA, however, are reversible: (1) political opponents have vowed to seek congressional repeal at first opportunity; (2) further constitutional challenges are underway in lower courts; (3) a few states are considering nullification of the federal mandates; (4) many states are leaving the insurance exchanges to the federal government; and (5) other states are declining to expand Medicaid coverage. No judicial ruling, in any event, would end the political debate.

Whatever one's appraisal of the legal significance of this ruling, it does not (and could not) address the underlying issue surfaced by the prospect of universal access to health care. Constitutional debate over congressional authority, in this case, effectively functions in the public square as a rhetorical proxy for a philosophical disagreement over how we conceive our national compact--that unwritten and unsettled consensus among fellow citizens concerning what kind of a society we aim to be and, accordingly, what each of us owes to and can claim from one another. This disagreement correlates with two further issues--the legitimate purposes of government and the natural rights of humanity. It is this deeper disagreement in the body politic that gives this issue its social currency and emotional content and ensures that whatever the fortunes of the ACA, health care will remain a salient issue of political debate. (1)

This article is a critical engagement with that position presenting perhaps the strongest argument against universal access to health care: libertarianism. (2) What I seek to demonstrate is that, despite libertarian protestations, one can build a robust argument for a natural right to health care as well as for the legitimate function of government to guarantee access to health care on the basis of that authority to which libertarianism appeals to deny such a right, the political philosophy of John Locke. (3) Three preliminary caveats are in order. First, the argument to be presented is intended as a defense, not of the specific policies of the ACA (whose merits are debatable), but rather of the moral goal of universal access to health care. Second, the argument here engages not the Libertarian Party platform but the libertarian philosophical position. Third, although my line of thinking runs parallel to the principles of Christian social ethics, because I have deliberately constructed the argument here to maintain an open dialogue with the libertarian perspective even while challenging libertarian logic, I do not appeal directly to either biblical or ecclesial authority. In order to avoid begging the question, I construct the argument within the boundaries of the natural-law tradition as presented by Locke (and his predecessors), who believed the natural law to be grounded in divine will and operative through divine providence.

The Libertarian Argument: Natural Rights versus Health Care

In its simplest (and most popular) form, the libertarian argument might be framed this way: According to the natural law, the three most basic rights are life, liberty, and property. Universal access to health care, far from being a right, is a violation of the individual's rights to liberty (freedom of choice) and property (fruits of labor). The conceptual key to this argument is that liberty and property are understood as natural rights--decrees of nature. Such rights are knowable to reason but are neither created by human choice nor open to political negotiation. Health care, by contrast, is understood as a social right, existing by human convention and subject to political arbitration. The implicit assumption is that nature necessarily takes moral priority over society: What natural law has decreed right or wrong, the negotiated choices of political society cannot justly countermand. The argument thus appeals to natural rights as trump cards to preempt the political creation of a social right to health care: A social right to health care would violate the natural rights to liberty and property--and thus would be simply unjust. By its language and logic, this popular argument follows the standard line of libertarian philosophy as propounded by Robert Nozick in his contemporary classic of political theory, Anarchy, State, and Utopia, (4) and by Ayn Rand in her essays on "Objectivism." (5)

The chief authority for the libertarian argument, intentionally echoed if not explicitly invoked, is the seventeenth-century English philosopher John Locke. It is questionable, however, whether this argument accurately represents Locke's own view. In the Second Treatise of Government, Locke stated "the law of nature" in these terms:
   The state of nature has a law of nature to govern it, which obliges
   everyone; and reason, which is that law, teaches all mankind, who
   will but consult it, that being all equal and independent, no one
   ought to harm another in his life, health, liberty, or possessions.
   (6)


Premised on a sacred trinity of natural rights--life, liberty, property--the popular libertarian argument conveniently omits the very natural right listed by Locke himself that is most relevant to the present debate--health. This omission of the right to health from popular rhetoric would seem not to be by carelessness or chance but characteristic of the libertarian perspective. Nozick, for example, does correctly quote Locke's version of the natural law but does not subsequently address the right to health. (7) Rand, for her part, recognizes only one fundamental right--life--deriving from it the rights of liberty and property but subsequently rejects the very notion of a right to health. (8)

According to Locke's formulation of the natural law, health is the equal right of all persons no less than liberty and property. The rights of liberty and property, moreover, are dependent on the rights of life and health. The exercise of liberty by labor to acquire property depends on the life and health of the body: without life, liberty is impossible; without health, liberty is impotent. Health is thus a natural right that, like the right to life, is practically prior to the rights of liberty and property. An appeal to the rights of liberty and property to trump a right to health care thus seems prima facie dubitable. Whether we should be convinced by the libertarian argument requires further examination of Locke's theory of natural law.

To see what a natural right to health might entail, consider an analogy between the right to life and the right to health. Such analogy would seem to be warranted because life and health are closely connected--a threat to health is a threat to life. Libertarianism affirms that each person enjoys an equal right to life, but what does that right to life entail?

Suppose that I live in a region in which the natural resources necessary for sustaining life are under monopolistic control. Suppose further that the monopolist sets the price of access to and use of these resources so high that I cannot afford to pay. Without access to food, water, and materials such that I cannot feed, clothe, or shelter myself, my death is inevitable. My right to life has been violated: I am prevented from doing what is naturally required to sustain life. In order to enjoy my right to life, therefore, I must have access to the means necessary for sustaining life. Thus no one has a right to monopolize resources to the effect that others are deprived of what they need to survive--or, as Nozick puts it, "Thus a person may not appropriate the only water hole in a desert and charge what he will." (9)

Suppose, again, that I live in a region in which the natural means of treating disease--say, medicinal plants--also are under monopolistic control. Suppose further that the monopolist sets the price so high to the access and use of these plants that I cannot afford to pay. Suppose also that I am sick with a fatal yet treatable disease. Without access to medicine, which I cannot afford, my death is inevitable. One might reasonably argue that such a situation is a violation of the right to health analogous to the violation of the right to life in the previous case: I am prevented from doing what is naturally required to maintain health. If I have a natural right to health second only to a natural right to life, then it follows that I have a right of access to the means necessary for maintaining health second only to a right of access to the means necessary for sustaining life. (10)

Very well, the libertarian might say, each person has a natural right to health. However, as long as your health is not actually harmed by another, your right is not violated, for no individual has a natural right that any other individual do good for him--and, correspondingly, no individual has a natural duty to do good for another. (11) Natural rights and duties, as Rand states, proscribe but do not prescribe: "As to his neighbors, his rights impose no obligations on them except of a negative kind: to abstain from violating his rights." (12) All rights and duties of mutual aid, therefore, are derived from consensual contracts. After all, the law of nature guarantees only a right not to be harmed in life and health, not a right to be helped in sustaining life or maintaining health. Thus, you have a natural right to your health but not to health care.

Locke, however, understood the natural law not only to forbid harming others but also to oblige preserving the life and health of others:
   Every one, as he is bound to preserve himself, and not to quit his
   station willfully, so by the like reason, when his own preservation
   comes not in competition, ought he, as much as he can, to preserve
   the rest of mankind, and may not, unless it be to do justice on an
   offender, take away, or impair the life, or what tends to the
   preservation of the life, the liberty, health, limb, or goods of
   another. (13)


According to Locke, each person has a natural duty "to preserve himself." Likewise, each person has a natural duty to act "to preserve the rest of mankind as much as he can," insofar as doing so does not interfere with preserving one's own life and health. One might thus argue: Not only does hindering another's access to the means necessary to sustain life and maintain health violate the natural law by acting against "what tends to the preservation" of humankind, but also not helping another's access to the means necessary to sustain life and maintain health, when doing so does not compete with self-preservation, violates the natural law by failing to act "to preserve the rest of mankind."

Therefore, imagine that you and I have been stranded due to a shipwreck on an uninhabited island--you, luckily, have escaped unharmed, but I, unfortunately, have suffered injury that renders me immobile. Leaving me at the beach, you set off in search of sustenance and find ample supplies of potable water and edible food, samples of which you bring back to the beach. Now, you are not acting to hinder my access to material necessities, and you would not do me actual harm by keeping your find to yourself. Nonetheless, according to Locke's version of the natural law, you would have a duty to share this food and water, procured by your effort, to preserve my life--even if it does not gain you any survival advantage, as long as doing so would not hinder your self-preservation. For sure, I also would have a duty to aid you as far as I am able without hindering my self-preservation. Still, our respective duties to render aid would arise from the natural law prior to reciprocity--that is, even if we make no promises of mutual aid.

The libertarian is now sure to reply: My hindering or not helping your access to the goods necessary for life and health would violate your natural right only if you already held entitlement to those goods--that is, only by denying a prior property right. As Nozick writes, "But a right to life is not a right to whatever one needs to live; other people may have rights over these other things ... one first needs a theory of property rights before one can apply any supposed right to life." (14) Nature, however, does not endow the individual with the right to any material possession, not even to minimal goods necessary for survival. The individual holds a natural entitlement to only one's own body--an entitlement one is by nature at liberty to extend by labor to acquire the goods one needs to survive and thrive. "The right to property," Rand writes, "is not the right to an object, but to the action and the consequences of producing or earning that object. It is not the guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it." (15) One thus acquires actual entitlement to enjoy such goods only by having earned them by one's labor--or by having received them as another's gift. (16) Unless the goods in question (food, water, and medicine) have been justly earned or voluntarily transferred, such that one holds a proper entitlement to them, there can be no injustice in being denied access to those goods. Returning to the example above, unless I had acquired food and water by my own effort or you had voluntarily transferred some of your find into my possession, the withholding of goods necessary to my survival would not violate my right. Thus, in case you choose not to share your store of goods, providing me with basic goods would require an intervention to take some of your goods and transfer them to me. This, then, is the nub of the libertarian objection: Universal access to health care would require taking that which one has earned, and to which that one is entitled, and transferring it without consent to another who has neither earned nor been given it and hence is not entitled to it; that is, universal access entails the "patterned" (re)distribution of property rights, which would violate individual liberty and create unjust deserts. (17)

What the Libertarian Argument Neglects: The Tradition of the Commons

At this point, we can diagnose a case of amnesia in the libertarian philosophy. Although lauded as the herald of liberalism--the fountainhead of a new tradition--Locke is better seen as a transitional figure, as the transmitter and transformer of a tradition. Locke's theory of natural law reflects the ancient tradition of the "commons," which Locke himself recognized and respected. This tradition sees nature not as naturally existent but as divinely created and thus regards the natural store of material resources not as a neutral "there" for the taking but as a providential "given" to be stewarded. It is precisely this divine grant of natural goods that grounds moral duties--shared obligations of mutual aid that exceed individual interest and precede consensual contracts. (18) The libertarian appropriation of Locke's theory, especially the secularized versions in Nozick and Rand, neglects to take this tradition into account. (19) Consequently, that neglect has significant implications.

Premised on the universal destination of natural goods, the theory of natural law within the ancient tradition that Locke inherited has long sanctioned the natural right of one in extreme need to avail himself of the material resources of another who possesses a superabundance of goods. Correspondingly, those whose store of goods exceeds what is necessary to satisfy their own needs and the needs of those for whom they are responsible (e.g., dependents) have a moral obligation to succor others who find themselves in urgent need. Consider the view of Thomas Aquinas.

Aquinas allowed that the individual acquisition of material goods as a private possession accords with natural law; such an arrangement may better utilize material goods for their divine destination to satisfy human needs. (20) At the same time, and by the same token, Aquinas maintained that private possession is, in effect, stewardship not ownership: "man ought to possess external things, not as his own, but as common, so that, to wit, he is ready to communicate them to others in their need." (21) Aquinas thus subsequently argued that were a needy person--in dire circumstance, as a last resort--to take what he needs from surplus goods in another's private store, it would not constitute theft. Far from creating unjust deserts, such action would accord with natural right even if it were contrary to human law. What grounds a right of the poor to access the excess of the rich? Aquinas argued that natural law takes precedence over human law:
   Now, according to the natural order established by divine
   Providence, inferior things are ordained to supply the needs of
   men. Wherefore, the division and appropriation of things which are
   based on human law do not preclude the fact that man's needs have
   to be remedied by means of these very same things. Hence, whatever
   goods some have in superabundance are due, by natural law, to the
   sustenance of the poor. (22)


Therefore, once my needs and my dependent's needs for today are satisfied, and we have enough for tomorrow, my natural right to private possession of material surplus ends where the urgent need and material lack of another begins. Because "each one is entrusted with the stewardship of his own things, so that out of them he may come to the aid of those who are in need," (23) failure to succor the poor from the surplus in one's possession would be failure to render what is due. (24) Why is the material surplus of the satisfied the just due of the destitute? Because, no matter what distribution of holdings might result from private transactions and market exchanges (contracts, trades, donations, bequests, etc.), it is nonetheless true that material goods are under a universal destination to serve the common need. Aquinas thus stated the principle succinctly: "In cases of need, all things are common property." (25)

Locke himself espoused this ancient belief in the universal destination of natural goods. (26) In keeping with the natural-law tradition, he believed this principle could be known either by reason or by revelation. Locke's discussion "Of Property" in his Second Treatise thus begins with this statement:
   Whether we consider reason, which tells us that men, being once
   born, have a right to their preservation, and consequently to meat
   and drink and such other things as nature affords for their
   subsistence; or revelation, which gives us an account of those
   grants God made of the world ... it is very clear that God, as King
   David says (Ps. 115:16), "has given the earth to the children of
   men"--given it to mankind in common.... The earth and all that is
   therein is given to men for the support and comfort of their being.
   (27)


All persons "have a right to their preservation and consequently to ... things as nature affords for their subsistence" (my emphasis). Locke's view thus directly contradicts the libertarian view (per Nozick and Rand) that the right to life does not entail any natural right to actual possession of material goods. Contrary to the libertarian view, Locke held that the natural right of the human being includes not only immunity from harm by others but also entitlement to the store of nature--that is, nature grants one right to both moral goods (liberty and justice) and material goods (e.g., food). This natural entitlement, Locke emphasized, is neither earned as the due of one's labor nor received as the gift of another's liberty but is bestowed by birth. Why? Because the divine endowment of natural goods is for all humankind "in common ... for the support and comfort of their being."

That this ancient tradition of natural law made a substantive difference for Locke's theory of natural rights can be seen by a contrast of seventeenth-century views. The English philosopher-statesman Thomas Hobbes had put forth a distinctively modern, boldly secular theory of natural rights in his magnum opus, Leviathan (1651). He saw the natural state as an unregulated realm of individual competition for scarce resources, in which might makes right and winner takes all. Locke deliberately rejected this modernist turn of the Hobbesian theory. Maintaining the ancient tradition of natural law, he saw the natural state as a moral order of divine providence for human welfare. This natural state includes a divine ordination of common right in natural goods that precedes the exercise of labor and the enclosure of land. Thus, whereas Hobbes thought a commonwealth to be possible only through civil government, Locke recognized the natural state as itself a commonwealth. Likewise, whereas Hobbes made the right of property dependent on the laws of the state and so subject to the power of the sovereign, (28) Locke saw the right of property as guaranteed by the law of nature, such that property was protected from arbitrary appropriation by the sovereign power. (29) By the same token, however, and this is the very point obscured by libertarianism, Locke also maintained the traditional view that private property is an individual appropriation from the commonwealth of nature. While private property precedes the civil state, therefore, the common right, established originally by divine grant, precedes private property.

Locke thus held that the divine ordination of common right in natural goods places a moral qualification on the individual right to private property. He stipulated from the start that, while acquisition by labor creates a proper title to material possessions, a private right exclusive of the common right, this moral claim is subject to a material condition: "where there is enough, and as good, left in common for others." (30) Where there is not "enough" or "as good" left "in common" to satisfy the needs of others, however, one does not necessarily enjoy an exclusive right to one's private possession. (31) In that case, to possess more than one needs is to have too much--one holds in private what by right belongs in common. That is so because the goods of nature were meant by God to meet the needs of all.

Nozick does recognize this "Lockean proviso," but he neglects the traditional rationale behind it--and thus robs the proviso of its cogency. (32) Nozick maintains, in line with Locke, that, were my acquisition of goods to leave you in a worse position, I would have a moral obligation to compensate you for your loss. (33) Why, however, would I owe you for the use of my goods, unless the goods I have acquired had a use designated prior to my acquisition, a use to which you have a claim and that thus preempts my acquisition? Whence does your claim on my goods originate if not from a common right premised on universal destination? Whereas Nozick's secularized version empties Locke's proviso of substance and force, Locke's traditional rationale for this proviso cuts across Nozick's distinction between "historical" and "patterned" principles of distributive justice. (34) According to the natural-law tradition, were a series of acquisitions and transfers to result in a set of holdings in which some are deprived of sufficient access to natural goods to meet basic needs, such a distribution of goods would be unjust because it is contrary to divine intention, regardless of the historical process by which it came about.

According to Locke even where the commons has not been exhausted or enclosed and enough remains for others' needs, the natural law still places moral limits on private property:
   The same law of nature, that does by this means give us property,
   does also bound that property too. God has given us all things
   richly (1 Tim. 6:17) is the voice of reason confirmed by
   inspiration. But how far has he given it us? To enjoy. As much as
   any one can make use of to any advantage of life before it spoils,
   so much he may by his labour fix a property in: whatever is beyond
   this, is more than his share, and belongs to others. (35)


To possess more than one can use profitably is, in any case, to have more than one's "share"--one holds what by right "belongs to others." Why? Again, Locke appealed to divine intention: "Nothing was made by God for man to spoil or destroy." Because the goods of the earth were meant by God not to be wasted but to serve the needs of his creatures, no one may acquire more than he can profitably use: "As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property"--but no more. (36) The constraints on acquisition, therefore, are not simply about scarcity: the universal destination--the natural telos--of the common store governs a just distribution of private property.

Nozick, for his part, simply dismisses this second qualification on property as redundant. If there is still enough for everyone (i.e., if the initial proviso is satisfied), he says, what does it matter that some goes to waste? (37) Again, Nozick neglects Locke's traditional rationale for the qualification: because natural goods have a divine purpose to meet human needs, to let them go to waste is to violate the natural law. (38)

Although Locke's theory of natural law is not equivalent to that of Aquinas, (39) Locke did affirm a parallel principle: in case of need that cannot be satisfied by access to the store of nature, the common right takes precedence over private possession concerning surplus goods. Locke had already stated this point explicitly in his First Treatise:
   But we know God hath not left one man so to the mercy of another,
   that he may starve him if he please: God the Lord and Father of all
   has given no one of his children such a property in his peculiar
   portion of the things of this world, but that he has given his
   needy brother a right to the surplusage of his goods; so that it
   cannot justly be denied him, when his pressing wants call for
   it.... As justice gives every man a title to the product of his
   honest industry, and the fair acquisitions of his ancestors
   descended to him; so charity gives every man a title to so much out
   of another's plenty, as will keep him from extreme want, where he
   has no means to subsist otherwise.... (40)


No one may claim such title to private property that would absolutely exclude the natural right of a "needy brother" to the surplus in one's possession--for such right has been granted by God and so "cannot justly be denied." Those who possess a surplus of goods therefore have a moral duty under natural law to voluntarily extend their surplus to those who face "extreme want" and have "no means to subsist otherwise." (41) Failure to extend one's surplus to satisfy another's need, therefore, would violate natural law and create an unjust distribution of material goods. There remains the question concerning how this natural right is to be honored, whether by individual initiative alone or by government intervention also, which we address below.

Health Care as a Moral Crisis

The present national crisis in health care access, one could reasonably contend, more than meets the criteria of a case of "pressing need" or "extreme want" under natural law. (42) According to a study published in the journal Health Affairs, more than half of the (now) nearly 50 million persons without health insurance in the United States do not qualify for public coverage but cannot afford private insurance. (43) According to a study by the Commonwealth Fund, another several million Americans--more than a third of those seeking health insurance in the private market--are simply denied health insurance due to preexisting conditions. (44)

These economic statistics represent real costs, both financial and physical. A study published in the American Journal of Medicine found that more than 60 percent of all personal bankruptcies are due to medical debt. (45) While three-quarters of those filing for medical bankruptcy had health insurance of some kind, a lapse in coverage significantly increases one's likelihood of bankruptcy, and a lack of coverage substantially increases one's burden of debt. A study by the Institute of Medicine of the National Academy of Sciences, moreover, found that lack of health insurance increases mortality risk by 25 percent, resulting in some 18,000 preventable deaths annually. (46) A follow-up study published in the American Journal of Public Health found that those without health insurance are at a 40 percent increased risk of death compared with those with private insurance, which extrapolates to some 44,000 additional deaths annually. (47) Now, such correlations cannot prove a causality between lack of health insurance and bankruptcy or mortality (i.e., that lack of health insurance by itself is a cause of bankruptcy or death). Still, such correlations are sufficient to conclude that lack of health insurance is one factor among many contributing to risk of bankruptcy and mortality in the United States.

The current system in the United States--by which access to health care is rationed largely through private insurance based on situation of employment, ability to pay, and state of health--contributes to financial ruin and physical demise and thus creates real harm. Most seriously, millions of Americans face mortal risk for being unable to afford access to a basic good. Therefore, those who enjoy superabundant satisfaction of basic needs have a moral duty under natural law to share that surplus with those who have urgent need of but are lacking access to health care.

Having made the case that health care in the United States is in moral crisis on the grounds of the widespread lack of affordable access to health care, I do not naively suppose that simply establishing universal access would be a panacea for the ill-state of the body politic. Affordable access is only one, if significant, part of a complex problem. Universal access through insurance (whether public or private) will not resolve the national crisis in health care apart from systemic reforms (in medical training, physician compensation, malpractice liability, and so on) to both improve quality and control costs in health care.

Health Care and Legitimate Government

We must now cross the bridge from the natural right to health to the legitimate function of government to guarantee access to health care. The link between natural right and civil government, Locke held, is a social contract--free persons in the natural state rationally consent to the rule of a representative legislature and the authority of a common judiciary. (48) The operative principle of this proto-political pact is that it is rational to consent to limits on liberty for the sake of preserving the common rights of the people and protecting the private property of the individual. (49)

Therefore we can make the following argument: Life, liberty, and the pursuit of happiness (echoing Thomas Jefferson) are among these natural rights belonging equally to all persons. According to Locke's theory of civil government, free persons in the natural state give their rational consent to the institution of government in order to preserve and protect these rights. Being healthy is an essential good that is necessary to the free and full enjoyment of these natural rights. Life without good health is imperiled; liberty without good health is impeded; happiness without good health is impoverished. Because the full enjoyment of each of these rights is dependent on good health, health itself is a natural right (as Locke appropriately stated). Thus, if preservation and protection of life, liberty, and the pursuit of happiness is an end rationally pursued by free persons through the institution of government, then insofar as the enjoyment of each of these rights is dependent on good health, protection of access to the means necessary to maintain good health is equally an end rationally pursued by free persons through the institution of government. Therefore, universal access to health care (i.e., the means necessary for maintaining good health) is a natural right that may be preserved and protected by civil government along with the natural rights of life, liberty, and the pursuit of happiness. The argument here, it should be noted, aims for a modest conclusion: That a government constituted from natural right by rational consent may guarantee universal access to health care, not that such a government must do so.

For sure, any government guarantee of universal access to health care would involve legislation and taxation. This precipitates the standard libertarian objection against involuntary entitlement transfers through taxation. Yet, the involuntary transfer of entitlement is essentially unjust only if it violates an actual property right; according to natural law, the private possessor does not necessarily hold exclusive title to surplus goods in circumstances of dire need. The libertarian might now sharpen the point of the objection in the form of a syllogism: According to Locke, because the just powers of the government derive from the natural right and rational consent of the governed, the people may not authorize the legislature to exercise any power that the individual has no right to exercise in the state of nature. (50) No individual has any natural right to transfer the possession of another, whether for his own use or that of another, without consent. Therefore, the people cannot authorize the government to tax the property of some and transfer it for the sake of others.

The minor premise of the libertarian objection, however, is false on Lockean grounds. The natural law that Locke recognized does in fact sanction the right of the indigent to access the excess of the wealthy, even without consent--a natural right, Locke emphasized, that "cannot justly be denied." As Locke maintained, moreover, the natural law remains in force within civil society and is to be enforced by the legislative power of civil government: "The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others." (51)

Therefore, because those who possess surplus goods have a moral duty under natural law to voluntarily distribute that surplus to aid the destitute, such that the failure to distribute surplus creates an unjust distribution of material goods, the legislative power of civil government has legitimate authority to redress this injustice by enforcing the natural law--that is, to tax that surplus and transfer it to the destitute.

Accordingly, we can make the following analogy: as rational individuals may consent to transfer the natural right of each one to execute the natural law against offenders to a civil government, (52) so rational individuals may consent to transfer the natural right of each one to access the material surplus of another (when in dire need, as a last resort) to a civil government. In the former case, transferring executive power to a civil government serves to remedy imperfections in the administration of justice in the natural state, and this deficiency is remedied by the creation of a common judiciary to administer impartial justice. In the latter case, transferring the distributive power to a civil government would serve to redress individual moral failures to render just due under natural law by distributing surplus, and such moral deficiency would be redressed by the social creation of a common store to alleviate dire need. In this way, it can be argued, the distributive power of civil government is as grounded in natural right and warranted by natural law as are the executive and judicial powers. (53)

Having made this argument, two caveats are in order. First, I neither argue nor suggest here that Locke himself would have supported redistribution through taxes and transfers, only that his theory of natural law and principles of civil government would allow such. Second, this argument does not imply a blanket justification for any and all exercises of the distributive power in the name of remedying injustice under natural law; each exercise would require its own justification. In any case, this argument would justify taxes and transfers for no purpose beyond maintaining a safety net to meet basic needs.

These caveats notwithstanding, the conservatively minded will ask: Is government intervention actually necessary to the end in view? Could not private institutions and voluntary associations--churches, charities, community organizations, and so forth--summon resources to meet the national need for health care? As it is, the cost of care for the uninsured and impoverished exceeds the total amount of charitable giving for all causes. Even were we to create an efficient health care system, per capita charitable giving would need to double (at least) to satisfy needs for health care without sacrificing other goods pursued by charitable organizations. (54) Charitable giving thus seems an inadequate solution to the health care crisis. In any case, by referring the question of moral responsibility for a national need to the private sector--that is, by shifting the question from taxation to donation--we only defer the question of civic commitment to the common good. As ethicist William May has written recently, "Voluntary communities may contribute substantially to a society's sense of shared sacrifice and responsibility, but sooner or later the willingness of the people in a democratic society to be taxed and taxed fairly tests their readiness to pay for what needs to be done." (55)

Health Care and the American Commons

The staunch libertarian might still object: The only just government is a minimalist state having three functions--law enforcement (police), legal justice (courts), and national defense (military); legitimate taxation is thus limited to only these government functions. (56) The Constitution of the United States, for its part, begs to disagree. Were there an official statement of the American compact, it would be the preamble of our national charter, which reads: "We the people" have established this constitution "in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." (57) The body of the Constitution, furthermore, grants Congress the power "to lay and collect taxes" in order to "provide for the common defense and the general welfare" as well as "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." (58) As to what this constitutional mandate to "promote the general welfare" might include, Abraham Lincoln wrote before becoming president: "The legitimate object of government is to do for people what needs to be done, but which they cannot, by individual effort, do at all, or do so well by themselves." The proper ends of government, in Lincoln's view, comprise not only remedy for crime and waging of war but also those goods conducive to the national well-being that require concerted effort, including "providing for the helpless, young, and afflicted, and schools." (59) The political debate over health care thus properly concerns the constitutional function of our federal government to promote and provide for, by legislation and taxation, "the general welfare"--a function that, arguably, implies the goal of distributive justice. (60)

This debate, we might say, concerns how to define the "commons" in contemporary America: What comprises that good which we all need in common for our subsistence and to which each citizen should have an adequate and affordable access but for which individual effort is insufficient to secure? In medieval England, the "commons" referred physically to a particular portion of land (pasture, wood, stream, and so on) held within a private manor that had been customarily designated for the common use of nonlandholders. The "law of the commons" protected the ancient rights of "commoners" against encroachment by either the landholding lord or the lawmaking parliament, ensuring that everyone would have sufficient access to arable land for growing vegetables, grazing livestock, gathering fuel, and so on, in order to meet basic needs for daily subsistence. Locke himself held that this medieval custom, preserved in Locke's England as common lands in villages and parishes, was inviolable. Concerning the "commons," Locke wrote that "this is left common by compact, i.e. by the law of the land, which is not to be violated." (61)

Transplanted to New England (e.g., the Boston Common), the tradition of the commons was upheld among the American founders by none less than Thomas Jefferson. Jefferson insisted that we respect the tradition of the commons precisely on account of the moral consequences of economic inequality resulting from the private appropriation of arable land. While acknowledging the impracticality of dividing land equally, Jefferson nonetheless advocated that the powers of government be exercised to redress inequality through property redistribution, including by means of regulated inheritance and progressive taxation:
   The property of this country is absolutely concentered in a very
   few hands.... I asked myself what could be the reason that so many
   should be permitted to beg who are willing to work, in a country
   where there is a very considerable proportion of uncultivated
   lands? ... I am conscious that an equal division of property is
   impracticable. But the consequences of this enormous inequality
   producing so much misery to the bulk of mankind, legislators cannot
   invent too many devices for subdividing property, only taking care
   to let their subdivisions go hand in hand with the natural
   affections of the human mind. The descent of property of every kind
   therefore to all the children, or to all the brothers and sisters,
   or other relations in equal degree is a politic measure, and a
   practicable one. Another means of silently lessening the inequality
   of property is to exempt all from taxation below a certain point,
   and to tax the higher portions of property in geometrical
   progression as they rise.


Jefferson went on to argue that the powers of government should likewise be exercised to ensure preservation of the law of the commons in some manner:
   Whenever there is in any country, uncultivated lands and unemployed
   poor, it is clear that the laws of property have been so far
   extended as to violate natural right. The earth is given as a
   common stock for man to labour and live on. If, for the
   encouragement of industry we allow it to be appropriated, we must
   take care that other employment be furnished to those excluded from
   the appropriation. If we do not the fundamental right to labour the
   earth returns to the unemployed. It is too soon yet in our country
   to say that every man who cannot find employment but who can find
   uncultivated land, shall be at liberty to cultivate it, paying a
   moderate rent. But it is not too soon to provide by every possible
   means that as few as possible shall be without a little portion of
   land. The small landholders are the most precious part of a state.
   (62)


Jefferson, whose declaration that all human beings are equally endowed with natural rights was in evident continuity with Locke's theory of natural law, explicitly affirmed the "fundamental right" of each one to sufficient land for subsistence living--or, if access to land is prevented by enclosures, to the socially guaranteed equivalent by means of adequate employment.

True, our situation in contemporary America may no longer warrant the "commons" of old. Economic development in the ensuing centuries has meant that most of us no longer must depend on subsistence agriculture to meet daily needs. Still, we all need adequate and affordable access to basic goods to survive and thrive. One such good is education. We as a society decided generations ago that the "general welfare" includes universal access to basic education, which has become an established element of our national compact. The equal right to a basic education is now enshrined in state constitutions across the nation, and equal access to public education is now a federally protected civil right. In effect, we have made basic education part and parcel of the "American commons." Why should we think of health care in fundamentally different terms than education?

Health care is a limited resource, as some are wont to point out: so it is, so is education, and so was the commons. Of course, to properly maintain a limited resource accessible to all requires both moderated access and personal responsibility--otherwise we risk incurring "the tragedy of the commons." The commons of old prudently granted a certain allotment of access for each commoner and usually assessed a fee per head of livestock turned out to pasture. Tuition-free and tax-subsidized education for every citizen typically extends only to primary and secondary school. Likewise, public subsidy of universal access to health care could reasonably be limited to the basic care necessary for one's well-being. Furthermore, one's claim on the commons to meet the basic need for health care could fairly be conditional on personal responsibility for one's health and financial contribution according to one's means. (63) Yes, that would entail some form of "rationing." Yet, not all forms of rationing are morally equivalent; the current system, after all, already rations access to health care for most Americans through private insurance, only not on the sole basis of actual need.

Conclusion

The United States faces a moral crisis in health care. The Affordable Care Act is an attempt, albeit imperfect, to address this crisis. Were the ACA to be undone, judicially or legislatively, we would be returned to the status quo. That status quo--in which insurers are legally permitted to ration access to care according to ability to pay or state of health, but hospitals are legally mandated to provide a modicum of emergency care to those in urgent need regardless of ability to pay--is medically insufficient and fiscally unsustainable.

This is the question before us: Shall we do for health care as we have done with education, which is to establish universal access as part and parcel of the American commons? The argument developed here within a natural-law framework defends the moral goal of universal access to health care and the right of the people to pursue that goal through the institution of government. At the same time, it does not decide how universal access should be delivered, whether by a single-payer system or by a public option for health insurance or by government mandates and public subsidies or by universal tax credits for private health insurance or by some combination of systems. Neither does it dictate what priority health care should have compared to other common goods nor does it determine what portion of national income should be allotted to health care. (64) Those are political choices that merit substantive debate. (65)

At stake in this question of justice, we observe in closing, is not only the natural law of moral duty and the natural rights of the human person but also the moral purpose of our civic union: Whether "we the people" exists simply for the sake of maximizing the liberty of the individual, such that each one has no public responsibility other than that for which one volunteers--or whether this "we" exists for the sake of the common good of all citizens, such that each of us is encumbered with moral obligations that we bear together as fellow members of a body politic. (66) How we conceive the moral purpose of our civic union, moreover, turns on how we conceive the essential nature of the body politic. The notion of a commons and the moral obligations it entails points toward a covenantal sense of political union--we the people is not simply a multiplicity of parties that coincidentally reside within a national boundary but rather is a community of persons bound together by a particular history of mutual relationship. It thus may be that corequisite to reclaiming an American commons is recovering a covenantal view of American identity that goes beyond the contractual view employed by Locke's theory and emphasized by the libertarian philosophy. (67)

Notes

(1.) The ACA of 2010 was only the latest chapter in a century-long political debate in the United States over heath care. See Beatrix Hoffman, "Health Care Reform and Social Movements in the United States," American Journal of Public Health 93, no. 1 (2003): 75-85; Anne-Emanuelle Birn, Theodore M. Brown, Elizabeth Fee, and Walter J. Lear, "Struggles for National Health Reform in the United States," American Journal of Public Health 93, no. 1 (2003): 86-91.

(2.) The present essay originates from my online engagement with libertarian writers by way of the Campaign for Liberty website in the summer of 2009. Some of the statements and formulations of the libertarian view presented here have been adapted from either libertarian blog posts or libertarian responses to my blog posts on that website.

(3.) The argument here will work toward a conclusion similar to that of Joseph M. Boyle Jr., "The Concept of Health and the Right to Health Care," Social Thought 3, no. 3 (1977): 10-15, but by a different route.

(4.) Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).

(5.) Ayn Rand, The Virtue of Selfishness (New York: Signet, 1964).

(6.) John Locke, Second Treatise of Government (1690), 2.6 (emphasis added).

(7.) Nozick, Anarchy, State, and Utopia, 10.

(8.) Rand, "Man's Rights," in Virtue of Selfishness, 110, 113.

(9.) Nozick, Anarchy, State, and Utopia, 180.

(10.) The libertarian might not accept this analogy--cf. Nozick, Anarchy, State, and Utopia, 181-82.

(11.) On the conceptual distinction between "negative liberty" and "positive liberty," see Isaiah Berlin, "Two Concepts of Liberty," in Four Essays on Liberty (Oxford: Oxford University Press, 1969). On the libertarian affirmation of negative rights/ liberties ("immunities" from harm) but rejection of positive rights/liberties ("entitlements" to help), see the classic discussion in John Stuart Mill, On Liberty (1859) and the general essay "Freedom," in The Encyclopedia of Libertarianism, ed. Ronald Hamowy (Thousand Oaks, CA: SAGE Publications, 2008), 181-82. For further representations of the libertarian view, see Tibor R. Machan, "Libertarianism: The Principle of Liberty," and John Hospers, "Differences of Theory and Strategy," in Freedom and Virtue: The Conservative/Libertarian Debate, ed. George W. Carey (Wilmington, DE: ISI Books, 1998), 100-34, and 163-71, respectively.

(12.) Rand, "Man's Rights," 110 (original emphasis).

(13.) Locke, Second Treatise, 2.6.

(14.) Nozick, Anarchy, State, and Utopia, 179n (original emphasis).

(15.) Rand, "Man's Rights," 110 (original emphasis). Nozick and Rand disagreed somewhat on this point, but this disagreement is only a difference of emphasis. Rand held that the right to life grants one the liberty to do whatever is necessary for the furtherance of one's life, which entails the right to acquire property as the implementation of that right. Nozick qualified this view by arguing that implementing a right to life requires a theory of property rights to determine beforehand what one may acquire.

(16.) Cf. Nozick, Anarchy, State, and Utopia, 150-60.

(17.) Cf. Nozick, Anarchy, State, and Utopia, part 2.

(18.) Cf. Manfred Spieker, "The Universal Destination of Goods: The Ethics of Property in the Theory of a Christian Society," Journal of Markets and Morality 8, no. 2 (2005): 333-54: "For Christian social theory, the natural right of personal property always remains subordinate to the universal destination of goods" (336).

(19.) As Spieker observes, universal destination and private property are the "twin pillars" of a Christian ethic of property rights. When one is divorced from the other, he argues, the result is ideology: communist ideology elevates the former to the exclusion of the latter--and, I would add, the libertarian ideology elevates the latter to the exclusion of the former. See Spieker, "The Universal Destination of Goods."

(20.) Aquinas names the basic goods of the natural law, those ends to which human beings have a natural inclination, as life, family, society, and knowledge (Summa Theologicae, I-II Q. 94 A. 2). In this view, property is not a basic good but rather is a subordinate good to preserving life--that is, a means, not an end.

(21.) Thomas Aquinas, Summa Theologicae, II-II Q. 66 A. 2, cited from Saint Thomas Aquinas: On Law, Morality, and Politics, ed. William P. Baumgarth and Richard J. Regan (Indianapolis: Hackett, 1988), 179. Aquinas' view on private property is rooted deeply in Christian tradition. Cf. Basil of Caesarea: "Is God unjust, when He distributes to us unequally the things that are necessary for life? Why then are you wealthy while another is poor? Why else, but so that you might receive the reward of benevolence and faithful stewardship ...?" Homily 6, sec. 7, cited from Saint Basil the Great: On Social Justice, trans. C. Paul Schroeder (Crestwood, NY: St. Vladimir's Seminary Press, 2009), 69.

(22.) Aquinas, Summa Theologicae, II-II Q. 66 A. 7, cited from On Law, Morality, and Politics, 186.

(23.) Aquinas, Summa Theologicae, II-II Q. 66 A. 7.

(24.) Cf. Basil: "'But whom do I treat unjustly,' you say, 'by keeping what is my own?' Tell me, what is your own? ... The things you received in trust as a stewardship, have you not appropriated them for yourself? ... You are guilty of injustice toward as many as you might have aided, and did not" (Homily 6, sec. 7, cited from On Social Justice, 69-70). Also, Chrysostom: "This is why God has allowed you to have more ... for you to distribute to those in need.... [T]he rich man is a kind of steward of the money which is owed for distribution to the poor" ("Second Sermon on Lazarus and the Rich Man," cited from Saint John Chrysostom: On Wealth and Poverty, trans. Catharine P. Roth (Crestwood, NY: St. Vladimir's Seminary Press, 1981), 50.

(25.) Aquinas, Summa Theologicae, II-II Q. 66 A. 7, cited from On Law, Morality, and Politics, 186. This principle, founded on the universal destination of created goods, continues to be the touchstone of modern Catholic social teaching concerning private property and the common good. See Second Vatican Council, Pastoral Constitution Gaudium et Spes (December 7, 1965), 69; Pope Paul VI, encyclical letter Populorum Progressio (March 26, 1967), 22-23; and Pope John Paul II, encyclical letter Sollicitudo Rei Socialis (December 30, 1987), 42, and encyclical letter Centesimus Annus (May 1, 1991), 30.

(26.) That the Scholastic tradition is the essential backdrop for a proper reading of Locke, see B. Andrew Lustig, "Natural Law, Property, and Justice: The General Justification of Property in John Locke," Journal of Religious Ethics 19, no. 1 (1991): 119-49.

(27.) Locke, Second Treatise, 5.25. Because Locke believed the natural law concerning property rights is known either by reason or by revelation, his citation of Holy Scripture does not necessarily beg the question but only reinforces the point for those who do accept biblical authority. Likewise, because the natural-law tradition pointed to the empirical evidence of natural order as epistemic justification for rational belief in a creator God, Locke's invocation of divine will does not necessarily beg the question, either.

(28.) Cf. Hobbes, Leviathan, 1.13 and 2.18.

(29.) Cf. Locke, Second Treatise, 11.138-39.

(30.) Locke, Second Treatise, 5.27. As I have shown in "Market Exchange, Self-Interest, and the Common Good: Financial Crisis and Moral Economy," Journal of Markets and Morality 13, no. 1 (2010): 83-100, Locke's unsupported assertion that the addition of human labor to natural goods simply "excludes the common right" from that natural good can be challenged on the premise of the universal destination of natural goods (which Locke himself assumes). Here, for the sake of argument, I let Locke's assertion stand.

(31.) Locke assumes that, in the state of nature, the complete enclosure or exhaustion of the commons is a practical impossibility, such that universal access to basic goods is never in question: because there is always "still enough, and as good, left" the one who acquires property "does as good as take nothing at all"--hence, one's enclosure of a portion of the commons does no injury to the rights of others. See Second Treatise, 5.33; cf. 36 and 45. That assumption need not always be true, however.

(32.) Nozick, Anarchy, State, and Utopia, 174-82.

(33.) Nozick, Anarchy, State, and Utopia, 178-79.

(34.) Nozick, Anarchy, State, and Utopia, 150-60.

(35.) Locke, Second Treatise, 5.31.

(36.) Locke, Second Treatise, 5.31.

(37.) Nozick, Anarchy, State, and Utopia, 175-76.

(38.) Cf. Locke, Second Treatise, 5.36-37. For further critique of Nozick's use of Locke, see Lustig, "Natural Law," 139-42.

(39.) The key difference between Aquinas and Locke appears when Locke introduces the convention of money into the argument. Because money, unlike natural goods, does not spoil and because accumulation of money by one does not itself deprive another of what he needs for self-preservation, Locke asserts that when we monetize or financialize our possessions (by, say, selling land or produce and banking the cash or buying bonds), we effectively elude the moral limits on private property--one can enlarge his financial holdings as far beyond his needs as he pleases, as long as his money is not idle but "works" by hiring labor or earning interest (cf. Locke, Second Treatise, 5.47-51). Aquinas, of course, recognized no such escape route from natural law. Locke's contention is contentious, I would argue. The artifice of money cannot create a loophole in natural law because human convention cannot nullify divine intention: whether capital is physical or fiscal, property is still subject to universal destination. Concerning the substantive difference between Aquinas and Locke as reflected in contemporary Christian social ethics, see Todd D. Whitmore, "John Paul II, Michael Novak, and the Differences Between Them," Annual of the Society of Christian Ethics 21 (2001): 215-32.

(40.) John Locke, First Treatise of Government, 4.42 (original emphasis).

(41.) The objection might be raised that such a view effectively divorces distributive justice from just deserts. As Michael J. Sandel, Justice: What's the Right Thing to Do? (New York: Farrar, Straus and Giroux, 2009), puts it, "Debates about distributive justice are about not only who gets what but also what qualities are worthy of honor and reward" (179). Hence, what if the "needy brother" is in "extreme want" due to his own sloth or folly? Is material aid his "just due"? Would not aiding him from my hard-earned resources only reward vice and punish virtue? Natural law is not at odds with virtue ethics. It recognizes the fact, first, that no one's success derives entirely from one's own doing but depends on both chance and Providence. As Basil asked, "What did you bring into this life? From where did you receive it? ... Did you not come forth naked from the womb, and will you not return naked to the earth? Where then did you obtain your belongings?" (Homily 6, 69). It recognizes the fact, second, that no one of us is without moral fault and thus entirely worthy of whatever success we do enjoy. Because no one of us could withstand strict scrutiny of our moral merits, we should not demand as much of the "needy brother." Thus, as Chrysostom put it, "Need alone is the poor man's worthiness" ("Second Sermon," 53).

(42.) In addition to philosophical differences, a significant difference of perception of the actual need for health care among the uninsured also prevents political consensus on health care reform--see Tara Sussman Oakman et al., "A Partisan Divide on the Uninsured," Health Affairs 29, no. 4 (2010): 706-11.

(43.) Lisa Dubay, John Holahan, and Allison Cook, "The Uninsured and the Affordability of Health Insurance Coverage," Health Affairs, vol. 26, no. 1 (2007): 22-30.

(44.) Michelle M. Doty et al., Failure to Protect: Why the Individual Insurance Market Is Not a Viable Option for Most U.S. Families, The Commonwealth Fund, July 2009.

(45.) David U. Himmelstein et al., "Medical Bankruptcy in the United States, 2007: Results of a National Study," American Journal of Medicine 122, no. 8 (2009): 741-46.

(46.) Committee on the Consequences of Uninsurance, Insuring America's Health: Principles and Recommendations, Institute of Medicine of the National Academy of Sciences (Washington, DC: Institute of Medicine of the National Academy of Sciences, January 2004).

(47.) Andrew P. Wilper et al., "Health Insurance and Mortality among US Adults, "American Journal of Public Health 99, no. 12 (2009): 1-7.

(48.) Whether Locke's contractual theory of legitimate government is itself adequate or not, I follow his line of logic here to continue the engagement with the libertarian philosophy.

(49.) Locke, Second Treatise, 8.

(50.) Locke, Second Treatise, 11.135.

(51.) Locke, Second Treatise, 11.135.

(52.) Cf. Locke, Second Treatise, 2.8 and 13, and 7.87-89.

(53.) Cf. Lustig, "Natural Law," 145.

(54.) Carolyn McClanahan, "Is Charity the Answer to Health Care," Forbes, April 23, 2012, http://www.forbes.com/sites/carolynmcclanahan/2012/04/23/is-charity-the-answer-to-healthcare/.

(55.) William F. May, Testing the National Covenant: Fears and Appetites in American Politics (Washington, DC: Georgetown University Press, 2011), 48.

(56.) For example, Nozick, Anarchy, State, and Utopia, part 1; and Rand, "The Nature of Government," in The Virtue of Selfishness, 125-34. Cf. Frank S. Meyer, "The Twisted Tree of Liberty," in Freedom and Virtue, 13-19.

(57.) Constitution of the United States of America, Preamble (emphasis added, spelling modernized).

(58.) Constitution of the United States of America, art. 1, sec. 8 (emphasis added). The US Constitution here parallels the contemporaneous view of Adam Smith, whose name is often (if dubiously) invoked in support of the libertarian philosophy, but who in fact held that government has three duties--defense of the commonwealth, administration of justice, and maintenance of public works for the facilitation of commerce and establishment of public institutions for the promotion of the general welfare. See Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776), 5.1.

(59.) Quoted in May, Testing the National Covenant, 48.

(60.) May, Testing the National Covenant, 101-2.

(61.) Locke, Second Treatise, 5.35. Locke might thus have opposed the Acts of Enclosure a century later as violations of "the law of the land."

(62.) Thomas Jefferson to James Madison, October 28, 1785, cited from Philip B. Kurland and Ralph Lerner, ed., The Founders Constitution, vol. 1 (Chicago: University of Chicago Press, 1986), chap. 15, doc. 32.

(63.) Cf. Boyle, "Concept of Health."

(64.) Cf. Boyle, "Concept of Health."

(65.) To the degree that achieving the goal of universal access to health care is to depend on markets to allocate that access, it should be noted, our political debate is also a moral debate about both how we value health and health care as goods and the proper place of markets in promoting the common good. On that, see Michael J. Sandel, What Money Can't Buy: The Moral Limits of Markets (New York: Farrar, Straus and Giroux, 2012).

(66.) Cf. Sandel, Justice, 240-43, 260-69.

(67.) Cf. May, Testing the National Covenant, 81-119.

Darrin W. Snyder Belousek

Adjunct Instructor of Philosophy and Religion

Ohio Northern University and Bluffton University
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