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Rights and the Hyde Amendment

[ 64 ] November 2, 2007 |

David Nieporent says:

But a right means the government can’t stop you from doing something; it doesn’t mean that you have some claim on anybody else’s wallet to give you that thing.

There are a number of potential misconceptions here. First, not all rights are constitutional rights. Second, there’s nothing inherent about rights that they be merely “negative” rights. Third, as Cass Sunstein and Stephen Holmes correctly point out, even the enforcement of “negative” rights requires substantial state expenditures (and hence claims on “other people’s wallets”), making the distinction between “positive” and “negative” rights itself problematic. And finally, leaving aside the fact that there are other constitutional traditions than the American one, even the primarily “negative rights” American framework recognizes positive rights. Most obviously. the Sixth Amendment’s right to counsel has been construed to require that taxpayers provide legal counsel, even if libertarians would prefer that the law in its majestic equality merely prevent the state from denying rich and poor defendants alike access from the lawyers they have on retainer.

With respect to the issue under discussion, the Hyde Amendment, the issues of constitutional rights are more complex than they may appear at first glance. There are other cases in which the Constitution mandates a positive right in any plausible long-term political context; Brown v. Board, for example, does not require the state to provide public schools but does require that if the state does provide public schools that they be provided equally to whites and African Americans, which (at least if taken seriously) requires the spending of taxpayer money. The Hyde Amendment presents such an issue. There is not a constitutional right to medical treatment; however, if the state provides medical treatment it does have a constitutional obligation to provide such benefits impartially. It’s a difficult case, but denying funding to a medical procedure not for reasons logically related to the purpose of the program but to obstruct the exercise of a fundamental right does in fact raise a difficult constitutional question and at least arguably a violation of constitutional rights.

And lest you think this is some kind of crazy-left wing notion, the court’s conservatives — including Scalia and Thomas — have held that the state is obligated to provide money from taxpayer wallets to religious student newspapers if it provides funding for other publications. And this case goes further, in the sense that providing state funding to religious organizations arguably violates the Establishment clause, while nobody believes that current doctrines make Medicaid unconstitutional. At any rate, most people across the ideological spectrum accept that there are cases in which the state’s arbitrary use of its spending powers raises a constitutional violation, and hence Nieporent’s description of American constitutionalism is inaccurate. And it’s therefore perfectly reasonable for Ann to describe the Hyde Amendment as not only awful public policy but an interference with reproductive rights.

Comments (64)

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  1. ewan says:

    just more attacks?
    That’s it?
    We give housing, food, and health insurance to the poor now. aimai, and presumably you, wish to now expand these services to include those “rights” that *YOU* believe are important, but cannot tell us why these are any more important than other rights.
    So, instead of using reason to demonstrate the difference you obviously believe there is, we get more personal attack stuff.
    Bottom line is, you can’t reason, so go ahead with the hateful personal attacks, if that’s all you can muster.

  2. ewan says:

    just more attacks?
    That’s it?
    We give housing, food, and health insurance to the poor now. aimai, and presumably you, wish to now expand these services to include those “rights” that *YOU* believe are important, but cannot tell us why these are any more important than other rights.
    So, instead of using reason to demonstrate the difference you obviously believe there is, we get more personal attack stuff.
    Bottom line is, you can’t reason, so go ahead with the hateful personal attacks, if that’s all you can muster.

  3. aimai says:

    ewan, its not all I can muster–its all you are worth.
    aimai

  4. aimai says:

    ewan, its not all I can muster–its all you are worth.
    aimai

  5. Flowers says:

    Scott’s reasoning is the same as the ~ 16 state Supreme Courts that interpret the state constitution to require the government to pay for therapeutic abortions if the state pays for indigent health care.
    NARAL’s Who Decides? has a great section on state constitutional protections.

  6. Flowers says:

    Scott’s reasoning is the same as the ~ 16 state Supreme Courts that interpret the state constitution to require the government to pay for therapeutic abortions if the state pays for indigent health care.
    NARAL’s Who Decides? has a great section on state constitutional protections.

  7. Flowers says:

    Oh, and by “government” I mean “state government.”

  8. Flowers says:

    Oh, and by “government” I mean “state government.”

  9. mds says:

    So, um, the federal government has this program. It gives free firearms to poor people. But Congressman Snyde doesn’t want obvious sluts to get the free firearms, so he successfully passes an amendment known as “Punish the Pregnant Sluts for their SINS by Withholding Guns.” He has no objection whatsoever to poor people in general receiving firearms at taxpayer expense; he just refuses to allow poor pregnant women to participate unless they join the nearest Southern Baptist Church. So, Dishonest Slut-hating Fuckwits, er, sorry, David and ewan, given that the big government firearm giveaway is ongoing regardless, what’s your substantive objection to granting equal access to the wicked, sinful pregnant sluts?
    Yeah, it’s actually a rhetorical question. They’re too busy flinging strawman hypotheticals along with their own feces, all while pretending that they’re taking the high road of substantive debate.
    Extra Note to Dishonest Slut-hating Fuckwits: it’s easy to scroll back to your substance-free comments, so claiming you’ve been Oliver Wendell Holmes all along is actually sorta pathetic.

  10. mds says:

    So, um, the federal government has this program. It gives free firearms to poor people. But Congressman Snyde doesn’t want obvious sluts to get the free firearms, so he successfully passes an amendment known as “Punish the Pregnant Sluts for their SINS by Withholding Guns.” He has no objection whatsoever to poor people in general receiving firearms at taxpayer expense; he just refuses to allow poor pregnant women to participate unless they join the nearest Southern Baptist Church. So, Dishonest Slut-hating Fuckwits, er, sorry, David and ewan, given that the big government firearm giveaway is ongoing regardless, what’s your substantive objection to granting equal access to the wicked, sinful pregnant sluts?
    Yeah, it’s actually a rhetorical question. They’re too busy flinging strawman hypotheticals along with their own feces, all while pretending that they’re taking the high road of substantive debate.
    Extra Note to Dishonest Slut-hating Fuckwits: it’s easy to scroll back to your substance-free comments, so claiming you’ve been Oliver Wendell Holmes all along is actually sorta pathetic.

  11. Doug H. says:

    I know Nierponent from other boards, and I can say with fair certianity that he’s not a Dishonest Slut-Hating Fuckwit. Very very very dedicated to the Fuck You I’ve Got Mine School of Liberarianism, but not a DSHF.

  12. Doug H. says:

    I know Nierponent from other boards, and I can say with fair certianity that he’s not a Dishonest Slut-Hating Fuckwit. Very very very dedicated to the Fuck You I’ve Got Mine School of Liberarianism, but not a DSHF.

  13. ewan says:

    ewan, its not all I can muster–its all you are worth.
    whatever, sweetie-pie

  14. ewan says:

    ewan, its not all I can muster–its all you are worth.
    whatever, sweetie-pie

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