On Judicial Intervention; or, What Canada Could Learn from Arkansas

First up: Chaoulli v. Quebec.

A Canadian court case of health care would seem unlikely to attract much attention in the U.S., and of course it hasn't. But that's unfortunate, because this very controversial decision by the Supreme Court of Canada--striking down a Quebec law which prohibited the purchasing of private insurance for publicly funded medical procedures--has important public policy and legal/political theory implications, ones that are both suggestive of and can be productively informed by similar debates in the U.S. Insofar as public policy goes, the clearest implication is that the traditional route which different Canadian provinces have provided health care to their citizens--namely, by subscribing to a strict single-payer system, where all medical costs are convered through a universal and mandatory government insurance plan, and wherein private alternatives are circumscribed so to prevent the usual collective action problems--has just received a serious constitutional reproach. Exactly how serious a reproach is not entirely clear, and may not be for a while; only three justices out of six went so far as to claim that the delays in receiving medical attention experienced by the plaintiffs in the Chaoulli case amounted to a violation of the "security of the person" mandated by section 7 of the Canadian Charter of Rights and Freedoms. Still, for the nation's highest court to overturn efforts to block the development of an extensive a two-tiered health care arrangement in Canada on the basis on the individual's right to receive a certain level of care, however defined, almost certainly means the pressure to accept such a private-public mix of health care provision will increase. To some, this is catastrophic; to others, it's simply common sense. This is the opinion of Scott Lemieux as well--he agrees that the Quebec law in question was a bad one. But he still thinks the Chaoulli decision sets a terrible precedent, because of what it suggests for future judicial involvement in the health care debate in Canada. And this brings us to the legal and theoretical implications, which I agree are both significant and worrisome.

I have an old and close friend, James Meloche, who works on health policy issues in Ontario, and while he has far more policy concerns about the Chaoulli decision than Scott does, he agrees that the biggest problems are on the constitutional end. This is how he put it in an e-mail to me:

I haven't decided completely on my view of expanding private care in our system--there are positives and huge risks at the same time. But I do have a negative bias to the nature of this ruling, however. While the court decision was dressed up in the language of any legal decision, make no mistake--it was a political and policy decision. At its center was [the question of whether] the entrance of a vibrant private service-delivery system would undermine the viability of public Medicare, and result in other issues of equity. Government lawyers argued in the positive, but the court (4-3) disagreed. Examining the evidence, the court ruled there to be no link between "prohibiting private insurance and maintaining quality public health care." [Some of them] went on to claim that the public system is failing to deliver reasonable medical services in a timely way, thus affecting the Charter guarantee of the "security of the person." Here is where they turn political/policy questions into questions about "rights"....This decision was not on whether public health care was unconstitutional, rather only the perceived "underperformance" of that system to deliver timely care. It attacks the public system from its underbelly to result in a slow death. But what of other policy frameworks that are underpeforming--will courts make decision regarding welfare, law enforcement, etc., on a performance basis?...In this decision, the Canadian political spectrum has been turned upside down. Conservatives who decried both bans on private health care and judicial activism, have found that the latter has delivered the former. Persons on the left who hold Medicare as sacrosanct with individual rights and were never afraid to use the courts to push the boundaries of social policy, have found themselves the victims of their own activist success. And on the party scene, we now have a prime minister considering the use of the "notwithstanding clause" and ignore the court's decision, but having to come to grips that he successfully pinned the leader of the opposition Conservative party as enemy of the Charter because of his willingness to use the notwithstanding to overrule the courts decision on gay marriage. For the Prime Minister, gay marriage was about "rights" and the Charter, stupid. Now for the Conservatives, private health care too is about "rights" and the Charter. What a tangled web we weave.

I tend to believe that such entanglements almost inevitably follow whenever issues of communal or public concern get framed by "rights talk" as matters of individual interest. That's not to say that individuals don't have legitimate interests; of course they do. It's just that the language of rights is by definition interventionary; it involves a presumption that there exists an individual who has a standing separate from whatever historical or collective laws and traditions make up their social context, thus allowing for that individual to turn around and judge that context. Consequently, rights talk is invariably judicial talk, a strategy of breaking up whatever communal arrangements exist in a given time and place in favor of an abstracted "right" or set of rights assumed, by definition, to adhere in most any individual simply by virtue of their ability to claim them. The right to contract is the perfect example of such--a guarantee based on the assumption that if two people consent to make an exchange regarding this or that particular bit of service or property, it is superior to most every other social aim which might be affected by such service or property. (This is why Scott compares the Chaoulli decision to Lochner v. New York.) This kind of communitarian complaint isn't anything new, of course, and I'm overdrawing it as well. Nonetheless, that's the core of what takes place whenever someone makes an argument on the basis of their right to certain level or kind or degree of treatment: an intervention which ursurps the power of existing institutions and procedures, subjecting whatever collective determinations they may have popularly or historically arrived at to a test which may have had nothing to do with original consensus whatsoever.

This isn't a blanket condemnation of judicial review and intervention; I'm not coming out against Brown v. Board of Education here. Modern politics cannot help but involve certain interventionary principles--as I wrote months ago in a different context, "we are the inheritors of a tradition of thinking which posits the possibility, and the appropriateness, of ideology-formation and ideological action, actions which run against tradition, habit, and yes, affective feeling....[w]e can, in short, imagine ourselves as capable of judging our particularities, and we do; we long have and ought to continue to intervene in various particularities in the name of imagined universals." Moreover, those universals ought to be written into documents--like the Declaration of Independence, or the Canadian Charter--so that the matter of aspiring to them can become a material part of our civic lives. The problem comes when the aspiration becomes disconnected from the participatory, political process wherein those aspirations are manifest. They don't really exist outside of the expressive work of consensus-building. That's why the work of Martin Luther King and other civil rights workers, both in and out of political office, to construct a new social and political understanding of racial justice in America was far more important than what the Warren Court decided (and even then, they were far from entirely successful in their efforts to address the bitter, alienating consequences of that judicial intervention). It's not simple stubbornness that leads people like Nathan Newman to lambast both the Chaoulli decision and judicial review in general; he's right that, far more often than not, the people who benefit from the sort of rights talk--like that of the "security of the person"--which brings courts into conflict with legislative determinations over "performance" are usually either wealthy enough, iconoclastic enough, or uncivic-minded enough so as to fail to recognize the collective (and frequently egalitarian) dimension and requirements of whatever it was the community in question was trying to "perform" in the first place. There are many exceptions to that judgment, and it may be a little unfair--but then again, it also a not inaccurate description of Jacques Chaoulli himself.

The situation in Canada puts me in mind of various entanglements which anyone who has lived in Arkansas over the past decade or so is likely very familiar with. Arkansas is a poor state, with a limited property tax base; it is also a state that, in a admirable fit of progressive aspiration, committed in its state constitution to "maintain a general, suitable and efficient system of free public schools." This has been interpreted as a primary civic responsibility--and consequently, a source for litigation. Back in 1992, Lake View School District, a tiny, all-black and impoverished district in Arkansas's southeast Delta, brought suit against the state, alleging that under then-current funding arrangements there was no way Lake View students could receive the sort of education the state presumably guaranteed to provide. This inspired a long series of decisions and reversals (which I wrote about some here), at the end of which the Arkansas Supreme Court held the state government's feet to the fire, demanding that changes be made in both how much the state spends on education and how it is distributed. Governor Huckabee made the controversial decision to consolidate Arkansas's smaller school districts--including, ironically but not surprisingly, Lake View itself--as part of a new funding formula, in order to better pool and deliver the state's available educational resources. While I was bothered by how Huckabee sold his plan, and was bothered even more by the condescending language which the state's political elite used against rural educators who strove to defend the borders of their districts, I thought Huckabee's decision was the right one, primarily because it was an honest attempt to accept the new, post-intervention requirements of Arkansas's own constitutional polity, and make the changes necessary to incorporate those requirements into a collective arrangement that would return the dispute to democratic debate and the public sphere. The crucial matter was to make the court's decision part of new (but not lacking in continuity) social arrangement, rather than allowing the state's schoolchildren to continue to tread water in an educational environment increasingly characterized more by resentment and withdrawal than common concern; he wasn't wholly successful, but his efforts were admirable nonetheless. Unfortunately, judicial genies like these can almost never be put back into the bottle; just a few days ago, the Arkansas Supreme Court once again re-opened the Lake View case, appointing "special masters" to report back to the court as to whether the legislature's efforts meet up with their fiats. How it will end, or if it will ever end, is an open question.

The lesson, if there is a simple one to draw, is that judicial intervention, as necessary as it may be in order to correct and establish the grounds of political action, in practice often rides very hard on serious efforts to collectively engage in such action. Again, that's not to say it's never worth it; I wish Governor Riley in Alabama had been successful last year in his efforts to overturn segregationist language in their state constitution, and establish a general right (and civic obligation) to public education there, even though those opponents who feared the lawsuits which would have inevitably followed clearly had a point. But the fact is, it can backfire, as it clearly has in Canada (at least as far as those in favor of the current health care regime are concerned). It may be that this decision was unavoidable; as Tom Hurka comments in a Crooked Timber thread on this debate, the "security of the person" claim has been used to sustain an individual right to a certain level of "performance" in medical care--in this case, the provision of abortion services--since at least the 1988 Morgentaler decision that struck down Canada's then-existing (sometimes restrictive) abortion laws. If one happens to applaud that decision as an extension of individual rights, then it would suggest that similar applause must be due to Chaoulli, since it also simply insists that the state cannot shape the provision of medical care in accordance with anything that does not meet the rights, needs, and contractual interests of individual Canadians. As a fan of Canada's egalitarian vision of health care as a public good, but also as an agnostic on the superiority of a single-payer vs. a two-tier system, I have no definite ideas as to how the Canadian Parliament or the different provinces should respond to Chaoulli--except to say that I hope their political leaders can help articulate a new (but not absolutely new) collective arrangement, one that will, if necessary, shape whatever two-tier compromises which may emerge from this and likely future lawsuits as part of a political process that all can feel equally commitmented to. If they fail to do that, then it will only become easier for the people of Canada to look at provincial and national failures to live up to presumed judicial decrees and assume that, well, health really must be just a personal look-out after all. In the U.S., the struggle to reform the public education system (in Arkansas, and everywhere else) so prevent that mentality from overtaking the public consensus entirely is a difficult one, and we're a long ways away (and getting further all the time) from being able to do anything even remotely similar insofar as health care is concerned. It'd be a great loss if, one way or another, our better example to the north were to be lost.