Natural Law and the Affordable Care Act (ACA)
Thank you so much for the time and attention you’re bestowing on my book! Here’s a quick reaction to Heidi and Brian.
For reasons I discuss in chapter one and won’t rehearse here, we’ve become accustomed to thinking of the Natural Law tradition as negative and censorial, much like (and for some of the same reasons) that we think of constitutional rights, and rights in general, as negative and trumping. So a law that is unjust is not a Law, a law that doesn’t meet certain moral criteria is not a Law, something that appears to be a law, by virtue of pedigree or social facts, but is immoral or unjust in certain ways, is not true Law. This has skewed our understanding of the historical Natural Law tradition and also, and more to the point here, our appreciation of what light that tradition might shed on some of our current arguments. What’s been lost is that the natural law tradition also suggests affirmative or positive obligations on lawmakers to enact laws that promote the common good. It suggests duties of lawmaking, in other words, as well as restraints on lawmaking power. This has gotten lost in our received, “civil disobedience-ish” understanding of what natural law has to offer. Let me illustrate quickly with the ACA.
How does the ACA fare, as viewed from a natural lawyer’s perspective? Seems to me there are three possible insights. If an unjust law is not a law, then perhaps, if the individual mandate is an unjust infringement of liberty, then it is not a law at all. This is not an argument that’s been given any credence, but it is structurally parallel to the argument, taken very seriously, that the mandate is an unconstitutional infringement of various individual rights of liberty. Second, perhaps the requirement that employers contract with insurers who will in turn cover the cost of birth control, conflicts with the mandates of individual conscience of some of those empoyers, and perhaps for that reason the law is unjust, so not a law at all. Again, this argument hasn’t appeared in scholarship that i’m aware of, but it has obvious parallels to the claim that the birth control coverage in the ACA violates RFRA, and is therefore unlawful. There is a natural law gravitational pull, in other words, in the direction of viewing the law with an eye toward identifying infirmities that might render the law to be so unjust as to be not truly Law.
But what’s been lost is how the ACA serves the Common Good, and how it might, accordingly, be a law that captures the natural law affirmative obligation of lawmakers to legislate in a way that promotes it. A healthy and long life, Martha Nussbaum, Amartya Sen, Henry Richardson, and others working generally in the “capabilities approach”, which is itself closely tied to Finnis’s Natural Law jurisprudence, is clearly a part of the individual good of virtually all of us, whether we call it a “capability,” a “function,” or simply a good. A state that can promote that good so common to all of us by organizing health care resources in such a way as to make it realizable by all, is presumably acting in accordance with the Natural Lawyer’s mandate to promote the common good.
Libertarian political philosophy plays a major role in the development of libertarian constitutional theory, just as social conservatism plays a role in the development of conservative constitutionalism. Liberal political theory has contributed to liberal constitutionalism as well,but primarily by laying the foundation for the value of state neutrality toward the good. LIberal constitutionalists have not turned to natural law, and particular its central claim that the lawmaker should promote the Common Good, as a font or guide to the development of a liberal constitutionalism of legislative and administrative duties to promote the General Welfare, or provide equal protection of the law, protect privileges and immunities, promote liberty and happiness, and so on. It seems to me that’s a shame.
So, Heidi is right that the common good is thick, and likewise our legal institutions. Traffic laws do provide an example of a set of rules that serve the common good through mandating and facilitating cooperation. The ACA, once fully operating, will serve that good, and will use multiple legal institutions to do so.
Brian and others worry about the qualifications of law professors to opine on the relation between jurisprudential commitments, normative judgments, and positive law. I understand the worry, but we invoke it so selectively! We opine on “public policy.” We make claims of what is and what isn’t a “cost” or “benefit” for purposes of CBA. We opine obviously on the unconstitutionality of law, often if not typically by reference to background moral principles. Why shouldn’t there be a more robust discussion, from the legal academy, on the content, contours, and limits of the Common Good that the law, and the lawmaker, ought serve?