Policy Documents

What the Constitution Says About Health Care

November 5, 2009

When the United States Constitution was ratified in 1788, the concept of health care was very different than it is today.

Standardized treatments for diseases were in a process of massive reconsideration. Physicians were for the most part sole operators, with widely varying degrees of education, equipment, and knowledge. Hospitals, which had primarily been nonprofit entities founded and staffed by members of religious orders, were undergoing a major transition from “almshouses” which served only the poor, transforming into centers for shared resources and expertise.

Colonists had already witnessed the first example of public-private health care partnerships in the United States with the building of Philadelphia’s Pennsylvania Hospital. Founded by Benjamin Franklin and Thomas Bond and staffed by medical reformers such as Benjamin Rush (a signer of the Declaration of Independence), it was built with matching funds from the taxpayers to the tune of £2,000. It became a major center for innovation in the betterment of childbirth care and women’s medicine, and along with work at Bellevue, the public hospital in New York, provided care and study that would eventually make childbirth a less dangerous and life-threatening experience.

Yet at the time of the Constitution’s writing, it was understood that the health of an individual and a family was chiefly the responsibility of . . . the individual and the family. As such, the only mention in the text of the Constitution that could be construed as referring even vaguely to health care is the so-called “general welfare” clause in the Preamble.

Unfortunately, many of today’s less educated readers misunderstand the Founders’ purpose. The men who drafted the Constitution were learned in the law, and they used a form of language that would be familiar to any lawyer at the time and to most educated readers. A Preamble, in the context of the times, was a statement of the goals that motivated the signers to choose the arrangements laid out in the document—it was not a shortened description of the arrangements themselves. It gave no powers to anyone. The reuse of the “general welfare” phrase in Article I, Section 8 regards the specific power of Congress to tax and borrow, not to pass any law it wishes.

Instead of a goal to be sought after, the “general welfare” purpose laid out in the Preamble has been repeatedly invoked as an obligation laid upon the nation’s taxpayers. It has not been an expression of the mutually sought aims of free Americans, but instead a way for politicians to claim unlimited and unrestrained power to achieve their policy aims. In the interests of the general welfare, the Bill of Rights—with its repeated and so-inconvenient restriction that “Congress shall pass no law” and the Tenth Amendment’s command that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”—fade into the shadows of history.

Such unrestrained powers have consequences. As Adam Smith wrote in The Wealth of Nations, “All the members of human society stand in need of each other’s assistance, and are likewise exposed to mutual injuries. Where the necessary assistance is reciprocally afforded from love, from gratitude, from friendship, and esteem, the society flourishes and is happy.” By comparison, Smith notes, when such assistance is compelled by force, it can have significant and negative effects, even to the point of a societal collapse.

In addition to understanding what the Constitution does not say about health care, we should also understand what it does say about our own individual authority. The power to direct our own health care is “reserved to the States respectively, or to the people.” The Constitution allows for a wide variety of systems to crop up in the states, with groups of people assembling together for insurance purposes, and for public-private partnerships in the interests of the common good, guaranteeing equality of rights under law, not equality of outcome.

Taken as a whole, this standard of law serves to create the kind of thriving, competitive environment where states can seek their own solutions, people can direct their own care, and both can avoid a one-size-fits-all answer from the throne of the federal government. The document that founded our republic was explicitly designed to have the central government deal only with issues the states could not handle on their own—and at the time and today, health care is not among them.

The general welfare phrase does not change the fact that our nation’s government is based on delegated powers, and the Constitution specifically spells out which powers are delegated. The Constitution is clear about the matter: the people of the United States have the right to set their own health care priorities, to pay for what they choose to pay for, to direct the paths of their own lives, and to live with the consequences of the path they take—without interference from the nation’s central government.

Benjamin Domenech is managing editor of Health Care News.