Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Health Care Redux

Roy Clouser


By Roy Clouser

January 31, 2014

Amid all the controversies that have swirled around the Affordable Care Act, a more basic issue has become obscured. But while that issue has receded into the background, it still remains a driving motivation behind much of the opposition to the Act.

That issue is this: does it fall within the proper scope of government to pass any act at all to make health care accessible to its citizens?

We should not confuse this question with people’s opinions of the actual provisions of the Act: just about everyone thinks the Act needs improvement. But some opponents of the Act think government has absolutely no responsibility in health matters, while others think that state governments may have such a responsibility but the federal government does not.

Let’s consider first the objection against any and all government involvement in health matters.

The Declaration of Independence, one of the founding documents of our nation, addressed this issue. The first of the universal rights it mentions is the right to life, followed by the rights to liberty and the pursuit of happiness. The clause then closes with the assertion “that it is to secure these rights that governments are instituted among men.” 

It would be wildly implausible to argue that this clause intends to assign to government the responsibility of protecting life only from threats due to war or crime. The need for government regulation to protect public health had been clear to the American colonists at least since Cotton Mather advocated compulsory inoculations in Massachusetts Bay Colony in 1721. If it isn’t a government responsibility to see to the safety of food, water, air, transportation, and medicines, upon what institution of society does that responsibility fall?

The second objection agrees that the protection of life and limb is a responsibility of government, but maintains that it should fall entirely to state governments rather than to the federal government. Those who hold this position usually do so on the grounds that the Constitution does not specifically delegate any such authority to the federal government, and that it specifically requires any power it does not delegate to the federal government to remain with the states. Fox News analyst Andrew Napolitano argues this way, for example. In an article written for the blog, Napolitano says that “the power to regulate for health, safety, welfare, and morality” should be “reposed with the states,” and that there should be “no federal police power” whatever.

But is such a position really tenable? Can each state reasonably be expected to inspect all roads, buses, trains, elevators, bridges, airplanes, foods, and medicines, as well as deal with epidemics, air pollution, drug enforcement, and forest fires? Is it plausible to have as many as fifty different standards in the same country governing each of these needs?  And does it make sense to say that even where these issues cross state lines that the federal government is to have “no police power”?

In matters of health and safety, as in so many others, we continue to be hobbled by the way the writers of the Constitution replaced sphere sovereignty with the idea of competing governments as the means of forestalling totalitarian governance. And the course of history since has shown just how unworkable it can be to have fifty legislatures and police forces enacting and enforcing contrary laws within the same nation.

Sphere sovereignty is the name Abraham Kuyper gave to Calvin’s insight that the New Testament recognizes a number of distinct kinds of God-given authority in human life: the authority of parents in a family, owners in a business, clergy in the church, and officials in the state, for example. Each type of authority relates to a particular aspect of life that is its proper “sphere,” so that each type should enjoy relative immunity from interference by the other types of authority. Moreover, no one type is supreme over the others or the source of all the others since only God is supreme over them all and the source of them all. Subsequently, government must not do what Calvin called “overleap the prescribed bounds” of its proper authority, where its proper sphere is recognized to be that of public justice (see the CPJ Guidelines for Government). Avoiding totalitarian government is possible by framing our laws to restrict governmental power to matters of public justice, rather than by creating competing states within the same body politic.

 The central issue for government is not whether there is one or many or how big a government is, but whether it recognizes its authority as limited to the sphere of public justice. Having one overarching government that recognizes its proper limits beats having fifty little ones that don’t. The central issue for health care is whether it is a public injustice to leave millions of citizens without access to the means of safeguarding the very first right the Declaration guarantees to them.

- Roy Clouser is Professor Emeritus of The College of New Jersey and a former Trustee of the Center for Public Justice.

“To respond to the author of this Commentary please email:
Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”