Constitutional Cohesion and the Right to Public Health

Abstract

Despite years of significant legal improvements stemming from a renaissance in public health law, Americans still face major challenges and barriers in assuring their communal health. Reversals of legal reforms coupled with maligned policies and chronic underfunding contribute to diminished public health outcomes. Underlying preventable morbidity and mortality nationally are realities of our existing constitutional infrastructure. In essence, there is no general obligation of government to protect or promote the public’s health. Under principles of “constitutional cohesion,” structural facets and rights-based principles interwoven within the Constitution protect individuals and groups from governmental vices (i.e., oppression, overreaching, tyranny, and malfeasance). Structural impediments and rights infringements provide viable options to challenge governmental efforts inapposite to protecting the public’s health. Through corollary applications framed as auxiliary, creative, and ghost righting, courts are also empowered to recognize core duties or rights that the Constitution may not explicitly denote but assuredly contains, to remedy identifiable vices. Notably, ghost righting charts a course for recognizing a constitutional right to public health that Americans are owed, and government must respect, to assure basic public health needs.