How America needs to handle access to healthcare during the COVID-19 epidemic provided one of the starkest contrasts during the most recent Democratic presidential candidate debate.
Former Vice President Joe Biden focused on what a president could do here and now to control the outbreak. Sen Bernie Sanders called to systematically rethink American healthcare.
Sanders rightly pointed out that the outcomes and effects of COVID-19 will be exacerbated by existing problems in the healthcare industry. If people are afraid of crippling medical debt or lack paid sick leave, they will be less likely to seek medical attention, not only now but during future public health emergencies.
Biden offered resistance to exploring a new mindset regarding American healthcare.
Regardless of who wins the nomination, all Americans need to consider healthcare as a fundamental right.
When thinking about their legal rights, many Americans may consider those established in the Bill of Rights. While the rights to free speech or a fair trial are clearly necessary for a healthy democracy, Americans need not allow the Bill of Rights to limit ideas on what constitutes human rights.
This is what the founders may have feared when drafting the original 10 amendments, leading to popular assertions that the possession of an assault rifle is a fundamental right, while the ability to receive life-saving medical treatment is treated as a privilege.
During the founding, prominent revolutionaries like Patrick Henry worried that the constitution did not adequately protect Americans from a return to monarchy. So the first 10 amendments establish a set of political rights designed to prevent the government from unnecessarily interfering in the lives of its citizens. The rights to freedom of speech, religion, and protection from undo search and seizure, for instance, are in large part the right to be left alone.
While the Bill of Rights does a fairly good job of protecting citizens from the whims of an unstable 18th century monarch, it does little to address numerous modern-day threats. Large corporations like Facebook and Google threaten our privacy.
The effects of global climate change present an existential threat to the lives and livelihoods of all Americans. And an increasingly globalized society poses unique challenges to public health in the 21st century.
As a Fulbright Scholar, I moved to Ecuador and interviewed authors of the country’s 2008 Constitution to discover how they hoped the document would prepare their country for the future. Newer constitutions from countries as diverse as Ecuador, India, South Africa, and Switzerland have greatly expanded their definition of rights to address the new social, political, economic, cultural, and environmental concerns of the 20th and 21st centuries. The constitutions of most countries around the world—including those of France, Spain, and Japan—now guarantee their citizens’ rights to education, healthcare, clean water, and employment.
Instead of representing the right to be left alone, these rights guarantee a life lived with a basic level of human dignity. These rights provide an important legal and cultural language for dealing with gross injustices, such as federal discrimination in housing, clean water crises such as seen in Flint, Michigan, or the massive coverage gaps that still exist in American healthcare.
Interestingly, the United States Constitution did not originally contain a Bill of Rights. In “Federalist 84,” Alexander Hamilton specifically warns that a Bill of Rights would be a dangerous addition to the constitution.
By enumerating rights, he argued, the constitution could inadvertently limit rights to those specifically written down on parchment. In response, James Madison’s 9th amendment reminds Americans that “the enumeration in the constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”
The argument is not that the courts suddenly need to recognize a constitutional right to employment, or that there be an immediate amendment to the constitution to include a right to healthcare. This would represent a radical and rapid change to American jurisprudence.
But it is prudent to remember that the constitution was originally meant to be a flexible document changing with the times, a contract that each new and successive generation could make its own.
As part of reshaping the healthcare debate, Democrats can reclaim the language of rights and constitutionalism. They can make the case that rights can serve a dual purpose. Rights can guarantee that the government is prohibited from unduly interfering in our lives. But they can also ensure that everyone is guaranteed a life lived with human dignity.
In the 21st century, both types of rights are necessary to ensure that citizens have the freedom to both participate in democracy and pursue their own happiness. Democrats can remind voters that being faithful to the constitution and the spirit of this nation’s founding does not mean that the conception of rights needs to be locked in the past.
In a famous 1789 letter to James Madison, Thomas Jefferson wrote that the constitutional convention may not have sufficiently asked the question as to “whether one generation of men has a right to bind another.” And he expressed concern that the constitution would eventually be used to unjustly impose the norms and values of past generations onto the present.
It would be best not to let the American imagination of what is possible, equitable, or just be limited by a document that was drafted over 200 years ago.
Katie Scofield has a Ph.D. in Political Science from Indiana University, with a focus on comparative constitutional law. She teaches government at Blinn College in Texas.