John Roberts' Motives

While it may be the case that Chief Justice John Roberts agreed with the Supreme Court's liberal wing in concluding that Obama's Affordable Care Act was constitutional, this should by no means lead one to conclude that he shared their reasoning - or, as some have suggested, experienced a temporary bout of insanity.

Furthermore, just because the four relatively liberal justices were most likely reading the law in a partisan light does not mean that Roberts was not being equally partisan. Indeed, throughout his tenure on the bench, Roberts has consistently bent laws into any shape whatsoever in order to help his main client - big business. And although it's arguably less transparent in the instant case, this one is no different. For more, see The Trojan Horse and the Golden Calf.

Obama and the Golden Calf: The Affordable Care Act and Privatization

It has been said that there are two sets of laws in the world, the false and the true, and that justice inheres in the movement from the former to the latter.

The commentators apprise us that Moses ascended Mount Sinai and recorded the true law there, transcribing this from the word of god. But when he descended the mountain, with these stone tablets incused with the true law, he beheld at the foot of Sinai a golden calf, a representation of the false law.

The people, impatient and fearful of Moses's prolonged absence and at the point of eruption, at last were only mollified by Aaron, the chief priest, distracting them with a piece of magic. It is not incidental that this calf was made of gold - not only the mere appearance of value, a glittery rock, but the simulation of light and spirit. To be sure, gold is the element of the false law par excellence. Of course, gold is valued for its physical properties. But it is for its metaphysical properties that gold is killed for. The alchemists' dream, the immortal, never-tarnishing metal mimics potentia and bewitches. And bewitched the Israelites were, worshiping this mass of gold illusorily vivified, this false god, false law, and imitation of life.

When Moses descended the mountain, with the true law in his arms, and set his eyes upon this golden calf, he instantly angered and dashed the tablets of stone to the ground, shattering them to oblivion. In time he would again ascend to the top of Sinai and bring down the commandments. However, the commentators apprise us, the commandments were different from the first, destroyed body of law - not the same as the true law that had been smashed to bits, the commandments were a simplification to some degree. The true law could not be fathomed by these worshipers of crude gold.

Following Obama's election, one would see from time to time a picture of the newly elected president beside one of Martin Luther King, Jr. A caption beneath King read: The Dream. Below Obama's picture another caption read: The Dream Fulfilled - a reflection not only of the height of hope, but the height of delusion. Among other things, it was clear that Obama was a dissimulator and a deceiver who had no intent of fulfilling King's dream of justice. To his credit, Obama was always straightforward about his conservative disposition. During the campaign for the Democratic Party nomination, he was consistently to the right of Clinton. In one telling debate, when asked what she would do about the mortgage foreclosure crisis then underway and all the illegal mortgage foreclosures that were being carried out in the confusion. Clinton replied that she would impose a moratorium on home foreclosures. When the question was posed to candidate Obama, he replied that he had faith in the market and would let the market correct itself. Yet it was the market that was responsible for the crisis in the first place. In spite of this stance, however, he led people with his campaign of 'hope' and 'change' and 'yes we can' to think he was some sort of fiery reformer - the way people wanted and hoped we would be. Perhaps it is unfair to write that Obama led people to believe this about him. It would be more fair to write that he misled them. He misrepresented himself. And we should not forget that misrepresentation can be a criminal act. At any event, his presidency ought to have by now dispelled any thoughts of his being a Moses, or a King. Yet the spell seems to be intact. Even with his drone strikes and kill lists, and attacks on whistle blowers, and his persecution of immigrants, and the rest of it, Obama is seen as a Moses, rather than what he really is: a golden calf.

It should come as little surprise that Chief Justice John Roberts not only voted for Obama's health care bill, the Affordable Care Act (which contributes little good aside from preventing some of the worst of the insurance industry's practices), but wrote the majority opinion. It is only surprising that the other conservatives voted against it. This is surprising because the conservatives have always been on the side of business, the hand of which the ACA greatly strengthens. Indeed, Roberts, Alito, and others are of the mind that the New Deal and the regulatory, administrative state following the New Deal is virtually all unconstitutional. And they have been working to roll back all of the New Deal for some time. Not only do they believe that business should not be regulated, they are all strong champions of the forces of privatization. Let us not forget that privatization is what business does, and is part of creating markets. For example, before the Enclosure Acts of the early modern period, many things that are now commodities and can only be obtained in markets were back then not. Before the lands were enclosed, divided into parcels and sold as commodities, they were all known as commons, for all to use. As land had not been privatized, people did not pay rent. Food, for the most part, was made at home in a subsistence economy. Only when the commons, and more and more of daily life, was privatized did people become compelled to go to the market to buy what they needed for subsistence. In turn, they were compelled to sell their labor as well - and never with equal bargaining power - to acquire money to buy that which they once owned. Among other things, they lost a great deal of wealth and independence to business.

Today's privatization - privatizing water supplies, public education, and the rest of what was once held in common - continues this same process. If the business interests had their way, everything - even air - would be for sale and nothing would be free - that is, no one but the rich would be free. Because the conservative wing of the court is very warm to all of this privatizing, it is surprising that they did not vote for a bill that, with its individual mandate, vastly strengthens the hand of business in its privatization schemes. Indeed, with the ACA as a precedent, they might be able to force people to buy a new phone every year, or some other such legislation. As Roberts made sure, this would now be constitutional. At any event, while he will take credit for being a wise judge, Roberts did not vote the way he did to help the golden calf, but to help the owners of gold. And let us not forget that the ACA is designed foremost to help the owners of gold. Improving health care, or health, is secondary. It is a business foremost. Profit, not health, is its object. To be sure, health care would be far more easily supplied without the insurance companies involvement at all. As middlemen their purpose is simply to make money - that is, to take money. And now, as people will have to buy from them, they will take a great deal more. And people continue to worship the golden calf. And, even if many don't worship the golden calf - as many don't - they still worship gold, blinded by its flashing.

And just as the movement from the false law to the true law is the movement of justice, so our movement ever closer to the false law of gold is, in so many respects, a tremendous injustice. For what is the true law? It is the health of the people. And though some may think it will help, the ACA will in no way create the conditions of health needed for actual health. At best it creates the semblance of such conditions, which is just another misrepresentation from the golden calf. 

Health, Justice, Freedom and the Sabbath

Until this point we have discussed health and disease as though each were opposed to the other, locked in manicheistic conflict, but this is only the way the two appear to be related. A closer analysis reveals that health and disease are in actuality two aspects of a larger unity - that of radiance, or healing.

Like justice, which is forever in flux and adjusting - overcoming that which opposes it - its stasis marking its dissipation - health is also forever adjusting to and overcoming disease. This dynamic process, which we have referred to earlier as 'radiance', may also be regarded as healing; for 'health' refers to a more or less static thing, negated by disease and so in certain respects concluded. But this does not reflect the actual dynamic interplaying between health and disease. This continuity and flux - health's actual manifestation in the world in relation with disease - is properly healing. The distinction is vital, because to refer to healing/radiance as health neglects its dynamism and treats it as an abstraction. Still, people are perpetually healing. Even in conditions of disease people, and other organisms and ecosystems, are healing to some degree. This healing in the midst of conditions of disease is analogous to resistance - physiological as well as political.

Within conditions of disease one uses a large part of one's energy simply resisting impositions and trespasses to one's health. Because of this one has little energy left with which to develop one's potentialities. One's energies and health are depleted merely resisting, holding ground as it were. In such conditions of disease, potentialities have little opportunity to manifest. For these to flourish, one needs supportive conditions - the conditions of health.  Since the health of the people is the supreme law, compliance with the supreme law requires the production - and reproduction - of these conditions.

But of what are these conditions comprised? These conditions are the presences of certain entities - the elements of health - which, of course, can also be regarded, in some situations, as the absences of other entities - the presence of clean air requires the absence of pollutants, etc.

Here is an example. As I am writing this, unprecedented wild fires are raging in Colorado. Among the other disasters attending global warming, we are witnessing more and more fires, of greater and greater intensity, breaking out with greater and greater frequency. It is easy for most of us to forget, but just last summer there were similarly unprecedented fires raging throughout Texas, among other places. And just two summers ago we saw monumental wild fires consume much of Russia, which were in turn linked with unprecedented flooding and misery in Pakistan. Needless to say, these are not conditions of health.

For conditions of health to arise, the presences giving rise to these conditions of disease need to be removed. And just what are these 'presences'? Among other pollutants, these conditions of disease are caused largely by the presence of C02 in our atmosphere, tons of which are spewed into the air every hour. In order to begin to dismantle the conditions of disease - which is at the same time the strengthening of conditions of health, which will allow the biosphere to heal itself - we must stop the ceaseless introduction of these harmful chemicals. The supreme law requires this. Moreover, this is not difficult; there is a very simple way to do it.

One would see a reduction in significant amounts of air pollution immediately by instituting a day each week, or even two days per week, during which fossil fuels were banned from being burned. Like the sabbath, unless it is because of a medical emergency, cars won't be driven, airplanes won't be flown, industrial plants will not operate, electricity will not burn, and people will not work. Indeed, when the eruption of volcanoes in Iceland several years ago resulted in the cessation of air traffic over Europe, the improvement in air quality was observable immediately. Because the ceaseless introduction of harms was halted, the biosphere was able to - temporarily - heal itself to some degree. Some might counter that this would harm the economy. It certainly would. However, the economy is itself very much part of the conditions of disease - and needs to be dismantled. Introducing such a sabbath would be a good first step. We need to have our priorities here. Justice, the health of the people, and the supreme law require it.

Hygiecracy and the Unconscious

What has been discussed since the ancients, and continues to be batted around by some philosophers, is the notion that human beings are motivated primarily by pleasure and pain. However, the idea that people seek out pleasure, and avoid pain, reflects at best a superficial knowledge of correlations. A deeper investigation of what appears to be the seeking of pleasure and the avoidance of pain reveals this attraction and repulsion to be related, rather, to a complex interplay between, among other things, an unconscious physiological knowledge of health. That is, it is seeking health and avoiding disease that is the truth subtending the appearance of the avoidance of pain, and the pursuit of pleasure - and the pursuit of happiness as well.

The Old Stoics were among the schools of thought who rejected the idea that pleasure and pain reflect anything deeper than appearance. Believing that people were always negotiating the conflict between determinism and freedom, the Stoics held that the good was attained by living in harmony with nature. Rather than being determined by pleasure and pain, it was by following a type of desire that brought one to this harmony that was conceived of as the good. This idea of harmony, or balance, is never far off when one discusses not only the good, but justice and health as well. Indeed, it is no coincidence that justice is represented by a balance, by scales. And the concept of homeostasis, which is central to not only human health but to biological health in general, reflects this balance as well.

Closely related to the concept of homeostasis is the notion of the conatus. Defined as an immanent striving, the conatus is something of a physiological growing. Attending this physiological growing, it is contended, is an unconscious physiological knowledge that some things are good for it, and some things are bad for it. Since time immemorial this knowledge has found expression in language and myth - most importantly, perhaps in the myth of Asclepius, the god of health.

Related to the Stoics' idea of determinism, and its conflict with freedom, is the Fates. In Greek myth, the Fates were three sisters. The daughters of the personification of necessity - Ananke - the three sisters each performed a particular role. One spun the thread of life, one measured it, and one cut it. These three, who were one, were more powerful than all of the gods combined. No god could alter their designs. And then into this context we have the unconscious physiological knowledge arising in the figure of Asclepius. The son of the god Apollo, he learned the art of medicine and became a famous healer. So powerful was he as a healer that he was able to raise the dead, subverting the designs and power of Fate. Asclepius was the only one capable of doing this. For his transgression - of healing - he was killed by Zeus, and then turned into a god himself.  

It does not seem coincidental, but related to this same unconscious physiological knowledge, that Jesus of Nazareth was also a healer. Also the son of god, he raised the dead as well. And for his message of healing he, too, was killed and raised up as a god. As such, both Asclepius and Jesus represent not only healing, but health as a type of true justice beyond the recognized powers of law - a justice articulated as health. There is much more to be said about this, particularly insofar as it relates to the legal maxim salus populi suprema lex esto. For now, though, it should suffice to remark that there is no gap between the conditions required for actual health and the conditions needed for actual justice. Yet as it makes its way into consciousness, this unconscious physiological knowledge becomes mediated by various degrees of conditioning and ideology, not to mention traumas, among other things, and becomes distorted. Accordingly, not only do notions of health become sundered from notions of justice, but this drive that would seek health and avoid disease becomes distracted by pleasures and pains, among other things, and seeks to capture and avoid these instead - the entire economy, indeed, is based on this. Neglecting health, disease proliferates - as does injustice. That it is oftentimes difficult to distinguish one from the other only attests to their underlying unity.

Health, Play, and Resistance

A polysemous concept, health may be defined in many ways. Among the varied definitions of health, ease - the negation of disease - allows for an articulation of a particular aspect of health. Ease, which is defined negatively as freedom from labor, pain, physical annoyance, and anxiety - and positively as comfort, casualness and rest - must be contrasted, however, from its mere semblance – sloth. Indeed, in some respects sloth is actually dis-ease, particularly when conditions of health are neglected. The distinction is crucial because while ease manages to perform various activities, with minimal effort and waste, sloth does not. In other words, ease does not neglect to satisfy the basic elements of health - which are those elements necessary for optimal health - and to produce, or reproduce, conditions of health. It accomplishes these with ease. Among other things, ease is rest, and the taking of one's time. Sloth, however, neglecting this basic duty-of-care to oneself, produces or reproduces conditions of disease.

Unlike sloth, ease may be defined as a type of radiance - as the emanating energy of health. And that the word radiance is etymologically linked to the Sanskrit word for play reflects more than a superficial relationship between the two concepts.

Contrary to Johan Huizinga's contention in his classic work Homo Ludens: A Study of the Play Element in Culture, the antithesis of play is not ritual. Ritual, rather, should be seen as a mediating phase separating and connecting play from its true negation: work. In this dichotomy, play corresponds to liberty, and freedom. Work, on the other hand, corresponds not to free labor voluntarily performed so much, but to servitude. This should not be mistaken for a position dismissive of purposeful activity and effort. The feature designative of work as servitude is its sympathy with constraint, and compulsion. As such, it falls beneath the sway of dominating power - related to Ananke and Bia - whereas play is a form of radiance, manifesting liberating power.

Unlike Huizinga's assertion that play is voluntary, the opposite seems just as much to be the case - for play very often seeps out, or radiates, unconsciously. To be sure, even if, for example, one chooses to play a game, one may not be playful by willing this, for then it becomes work. However, playfulness may overtake the person, transforming him or her from a worker working at playing, into a player actually playing. Play, for example, often interrupts concentration. Perceived as inattentiveness, or restlessness, this may often be the conatus, the striving of the conatus, resisting some obstacle obstructing its radiance. Should that radiance overcome the obstacle in question, that person will most likely experience a sense of freedom. If the obstacle prevails, however, a sense of defeat, and depression, tends to result. It is not unrelated to these phenomena that rates of depression preponderate in societies where conditions of disease - and work - dominate and predominate. 

Aside from the material conditions of disease that form obstacles to radiance (such as long work hours, sleep-deprivation, lack of nourishment, etc.) are the immaterial obstacles, or mental pollution, such as those formed by ideologies, social conditioning, and individual psychological 'hang-ups' among other things. These factors may distort the impulse of play/liberating power, deforming it into obsessive, work-like compulsiveness, or into aggressive behavior, violence and other forms of dominating power. This is why it is not much of a game, and no fun, to ‘play’ against an unsporting challenger – because it isn’t even play at all, the activity never rises to it. This type of behavior belongs, properly, to either ritual or work.

Unlike with play, the satisfaction deriving from work – from the completion of some task, for example – is in actuality – as opposed to its mere appearance or phantom – the feeling of having freed oneself from a burden. In overcoming an obstacle one earns a degree of liberation, a stretch of autonomy - a measure of health. As such, there is little satisfaction when one reflects on the relations of arbitrary bondage that give rise to certain types of obstacles, unnecessary obstacles; these, though they may be unnecessary for health, are often quite necessary for the maintenance of the conditions of dis-ease. The line demarcating liberation and enslavement, ease and disease – each of which implies the other’s negation, or sublation – is observable in this relation.

Insofar as the obstacle, or burden, is regarded as necessary, its overcoming may be regarded as a relief, as a vindication, a moving beyond. This results in a type of satisfaction, or happiness. But if the burden or obstacle is regarded as unnecessary and arbitrary, the labor it demands for its overcoming may very well be recognized as not only unnecessary but insulting - for it is something of an insult, an abuse, or battery, or injury/a waste of one’s time/life. And what is its purpose? Generally, its purpose is to some degree the enrichment of the one(s) compelling the labor in the first place. That is, it is exploitative. The healthy resist such impositions. And the distaste, or disgust, or repulsion born of the recognition of one’s enslavement is in many respects the obverse of desire. In spite of all this, one may object, one may also actually derive true satisfaction from working and, moreover, have fun working. Insofar as this occurs, if it is experienced as fun, and one derives true satisfaction from the practice, then it most likely only appears to be work; in actuality such an activity is a variety of play. The two, to be sure, often overlap and intertwine. 

Play plays into situations through the constantly opening cracks - in the flexing - of a given situation’s unfolding. It is not, as Huizinga declares, outside of “ordinary,” mundane life so much as a perpetual invasion of daily life - as resistance to conditions of disease, and the radiance of health.

Salus Populi and the Right to Housing

If we accept the maxim salus populi suprema lex esto - the health of the people is the supreme law - as a legitimate norm, then it must hold as well that the negation of the health of the people is a negation of the supreme law. As such, any trespass on the health of people is not only an illegitimate exercise of power and criminal, but it must also be corrected in order to comply with the maxim.

Among the many issues this formulation raises, is whether or not there is a right to housing. And if one accepts the authority of the maxim, then one would have to conclude that, yes, there is a right to housing. It is implicit in the maxim. For what does it mean that the negation of the health of the people is against the law? What is a negation of the health of the people?

Firstly, it must be recognized that for people to be healthy certain conditions must be present. On a very basic level, the air and water must be clean; nutritious and adequate amounts of food must be available; and people need to have housing that is supportive of health, i.e. the housing will have hot and cold water, electricity, will not contain lead paint, asbestos, or other toxins, etc.

Where such conditions do not prevail, the conditions of health will be absent. Because the absence of these conditions of health run counter to the maxim, they fall outside of the law and must be corrected. That is, in order to not lose its legitimacy, a society must provide these conditions. To be sure, these conditions are even more basic for security, safety, health, and the rest, than a military. So, if a society is going to collectively produce and maintain a military apparatus, a fortiori it ought to provide housing. Of course, there is a difference between saying that a society ought to provide housing and saying that people have a right to housing.  

It makes no sense to talk about rights without discussing what rights imply - that is, all rights have correlating duties. If a society has some sort of duty - legal or otherwise - to provide some condition, then a right to that condition is created, and vice versa. If the health of the people is the supreme law, and the negation of the health of the people is a negation of the supreme law and, therefore, illegal, then the society that accepts that maxim as binding has a duty to negate those conditions which negate the health of the people. This creates a positive duty to provide conditions of health, one of which is the very basic condition of housing. A right to housing arises from this formulation.

Of course, at this point one might argue that the 'market' - the real estate market in this instance - provides these conditions, so a society may satisfy its duty by protecting peoples' access to the market. However, the market cannot supply much more than a semblance of these conditions of health. Among other things, the market is based on exchange. That is, one may only take possession of things in market relations after paying a price for it - possession is conditional. This conditionality is an obstacle to the achievement of the conditions of health. As such, the market cannot satisfy the duty the society owes to provide to each the conditions of health.

At this point I am again reminded of the young woman who was walking her dog past the cafe the other day. It was a very handsome dog, and many people remarked upon this. Among these was a man who, after petting and briefly inspecting the dog, offered the woman $5,000 in exchange for her dog. When the young woman refused the offer, he doubled it. Still, though, the offer was rejected. OK, he said, smiling, I'll give you $50,000. And when this offer was rejected as well, he doubled it again. The young woman, somewhat impatiently, replied that her dog is not for sale. But I'm offering you one hundred thousand dollars, the man complained. I don't want it, rejoined the young woman. But, stammered the man, you are interfering with free trade! I don't care, said the young woman. Some things are just not for sale!

Indeed, some things are not for sale. We all agree these days that human beings, for example, are not for sale - even though, in a market economy, everyone is to some degree for rent. To be sure, for the most part one is compelled to exchange one's labor and time in the market in order to secure for one's self some approximation of the conditions of health - it is merely an approximation of conditions of health, however, because being compelled to do such things itself produces, or reproduces, conditions of disease, which according to the maxim are criminal.

Contrary to the ideology of its adherents, a very basic and profound conflict of interest exists between the so-called common good and the so-called private sphere which institutionally precludes conditions of health. What is plainly understood and accepted in Labor Law, for example – that labor and capital are fundamentally antagonistic, and that what is salutary to one is harmful to the other – is for some reason not extended to the other spheres of economic relations. The market for housing provides a very clear example of this conflict. 

As the relationship is based on making a profit, landlords are typically faced with a conflict of interest concerning their duties to their tenants. In making money off of their investment, the health and welfare of their tenants stands in direct opposition to the amount of money that landlords can recover from their investment. The less they invest in making their properties healthful, the more they keep in their pockets. And because the landlord enters the landlord-tenant relationship as an investor, with the purpose of making money, it is not surprising that this conflict is resolved in favor of the landlord’s profit, and against the conditions of health. The ideologue will counter that the tenant, in such a case, is free to leave and find a beneficent landlord and that the market, the private good, will ultimately lead to the common good. However, this entire argument is obviated by the recognition that these market relations - insofar as they are for profit, which is always a marker of some degree of exploitation and disease - are intrinsically hostile to the conditions of health.  

If the health of the people is the supreme law, this gives rise to a social duty-of-care to protect health. That is, society must not only not commit active harms, it must not commit passive harms as well - as such, it must intervene to stop harms and correct conditions of disease by supplying the positive conditions of health where they are deficient. Because a market economy obstructs access to conditions of health, putting a price on necessities, among other things, all of those things necessary for conditions of health must be de-commodified in order to satisfy the maxim. That is, what is necessary for health - including healthy housing - must be available to everyone for free in order to comply with the maxim. At present, according to the maxim, even the collection of rents is a violation of the law.

Some might argue that depriving the rentier class of the income they collect from rents amounts to an illegal taking, and to the deprivation of their property. However, according to the maxim it was the privatization of the property that the rentier class now holds - appropriating by force what was originally held in common - that itself constitutes the initial illegal taking. As such, it is not so much a taking of property as it is a returning of what was never legitimately held in the first place.

That the word property derives from the Latin pro privo - for the individual - should be noted at this point. Yet when it comes to real property that is rented out, the question arises: who is the individual? Is it the landlord or the tenant? Perhaps we can answer the question by tentatively stating that, in order to comply with the maxim, the individual must be able to own healthy housing, for free. As such, the landlord need not worry that s/he will wind up without any property at all. S/he will be able to maintain ownership of that which s/he inhabits, as opposed to possesses. For the landlord's health also falls within the health of the people which must not be trespassed.

On Marijuana and Health Care

If the meta-normative legal maxim salus populi suprema lex esto (the health of the people is the supreme law) is taken seriously - as it is purported to be by dozens of U.S. Supreme Court decisions - then its converse ought to hold as well. That is, if the health of the people is the supreme law, then the negation of the health of the people is a negation of the supreme law. As such, when conditions exist that negate the health of the people, these are ipso facto against the law. In order to conform with the law, therefore, such conditions must be corrected. This means that a society has a duty-of-care to itself; to satisfy this duty it must ensure that conditions of health are present, and conditions of disease are absent. As such, 'salutary presences' must be provided, and harmful presences must be removed. That said, how does one reconcile the hygiecratic position vis-a-vis the issue of drug criminalization/legalization and health care?

A superficial examination of the issue might lead one to conclude that because marijuana is in many respects inimical to physical health it is, then, inimical to the supreme law. However, this would be a misapplication of the maxim, for the maxim only applies to questions of public health and public policy. Though one could argue that in the aggregate marijuana use could injure the public health, the fact of the matter is that marijuana use - or any drugs, or practices - is a private issue. Insofar as a practice causes no harm - or the harm that it may cause is consented to - it remains a private issue.

Health Care, on the other hand, is a necessary condition of health. As such, it ought to fall under the duty-of-care a society owes itself. The maxim salus populi, which holds that the health of the people is the supreme law, implies that that which is against the health of the people is against the law. This gives rise to not only a duty to restrain from causing harms; it also gives rise to a duty to correct harms. Because the absence of health care constitutes an ongoing harm, the duty to correct gives rise to a duty to provide it.

Because all people, to some degree, need health care (even if they do not want it - and, of course, the principle of autonomy holds that they do not have to accept it) society has a duty-of-care to supply it. Marijuana, however, is generally not needed. As such, since no harm arises from its absence, no duty to correct arises, and (except where it might be necessary for well-being) society has no duty to supply it. But because it is largely a private issue, as opposed to a public issue, society has no basis for interfering with its consensual use.

from the common good to private goods: race, class and property

Given the ambiguity of the concept of Salus - in which it designates both the forces of Health/Liberating Power, as well as the forces of Dominating Power – the preceding should come as no surprise.

What deserves to be noted here is that throughout this period, beginning in the 12^th century in England, but occurring mostly between 1750 and 1850, much of the common good,[1] that is, the land that had been historically held in common, was enclosed by numerous Enclosure Acts and parceled off, turned into commodities and sold. In other words, the common good was turned into the private good – and the maxim salus populi was generally invoked purely ideologically, in order to serve the interests of the rising merchant class. In many respects it was their health, rather than the health of people in general – with which their health was, in actuality, in conflict – that was invoked as the supreme law.

While it has come to be regarded as natural, and inevitable, the entire institution of private property is merely an arbitrary historical development - one constructed out of the purely abstract notion that pieces of land can be construed of as commodities. Laws then cement this idea into place.

When people compare present conditions with those of the Feudal Era, they must not neglect to consider the fact that as abject as conditions were for the peasantry, the Feudal peasant had just as much of a ‘right’ to live on the land s/he inhabited as did her overlord - their rights inhering in the very same title. As such, in the Middle Ages there was no homelessness as we understand it modernly. It was only once land was commodified and subjected to the demands of the market that the practice of renting properties for habitation became widespread. Before this time, people maintained a subsistence economy, only going to market to trade their surplus, or to acquire luxury items. The ‘compulsion’ of going to market (the compulsion of Ananke) was a result of this great dispossession of what had always been held in common. As Marx writes, “By the nineteenth century, the very memory of the connection between the agricultural laborer and community property has, of course, vanished. To say nothing of more recent times.”[2]

As George Orwell writes apropos the distinction between public and private property: "Stop to consider how the so-called owners of the land got hold of it. They simply seized it by force… In the case of the enclosure of the common lands… the land-grabbers did not even have the excuse of being foreign conquerors; they were quite frankly taking the heritage of their own countrymen, upon no sort of pretext except that they had the power to do so.”[3]

“The Parliamentary form of the robbery is that of ‘Bills for Inclosure of Commons’. In other words decrees by which the landowners grant themselves the people’s land as private property.”[4]

As the commons was enclosed, deforming the public good into a private good, we see here at work the invocation of Salus by the courts; but it is the invocation of that form of salus that Machiavelli refers to, that is in opposition to the conditions for health. As such, it is a type of Dis-ease. This is not an un-literal description of the conditions that befell the former possessors of the commons.

“It is no uncommon thing for four or five wealthy graziers to engross a large enclosed lordship which was before in the hands of twenty of thirty farmers, and as many smaller tenants and proprietors. All these are hereby thrown out of their living with their families and many other families who were chiefly employed an supported by them.”[5]

Deprived of their former resources, many could only offset starvation by theft. Herein lies the origin of the term villain as a designation for a criminal. Until this time, the term villein and villeiny referred to a peasant, and the peasantry. That these became synonymous with, respectively, criminals and criminality is illustrative of the extent to which the peasantry was uprooted by the enclosures of and alienation from their land.

Expelled from their ancestral homes, this freshly created class of poor people were treated with extreme harshness. From the reign of Henry VIII and well into the eighteenth century, any person caught begging would be deemed a vagabond and sentenced to six months imprisonment. A second violation received a two-year prison sentence. A third violation earned its perpetrator a sentence of death.[6] Theft, as well, was punished with death, and to such an extent that in the reign of Henry VIII (1509-1547) alone “72,000 great and petty thieves were put to death.”[7] Prison and poorhouse populations exploded. Multitudes were sent off to the colonies. Resistance to this Disease was met with swift and violent punishment.

As Foucault writes, “it is perfectly obvious that from the end of the Middle Ages up until the eighteenth century, all the laws against beggars and vagabonds and the idle, all the police organizations designed to catch them, forced them – and this was of course their role – to accept… the conditions imposed on them, which were extremely bad. If they rejected these conditions, if they went away, if they took to begging or ‘to doing nothing’, then it was prison and often forced labor.”[8]

During this period of history the people subjugated to this Dominating Power were divided into three main groups. The first was put to work in the service of this new economy directly. Another group, though not a member of the Power group, policed their neighbors in the service of the Power group,[9] thereby serving the new economy indirectly. The third group was comprised of undesirables: criminals, the insane, the sick, beggars, vagabonds, etc. To this end, the concept of Salus as justification for Dominating Power was also directed. Those that resisted the new arrangement were branded (often literally) as criminals. And it would not be long before a pseudo-science sought to explain this criminality - deflecting peoples' attention from the actual causes of these conditions of disease.[10]  To be sure, in the 19^th century in French studies of the social origins of disease, the poor were identified as “a race apart,” a barbarian, uncivilized multitude.[11]

One of the founding studies of what came to be known as Criminal Anthropology, the Swiss deacon Johann Kaspar Lavater’s Physiognomische Fragmente zur Beförderung der Menschenkenntnis und Menschenliebe (1775–1778), presented arguments linking physical characteristics to crime at the very same time that the pseudo-scientific concept of Race was being constructed, further allowing those in Power to maintain their position of dominance. That is to say, salus/power’s ascendancy during this period is intertwined with salus/health’s subordination.

When one considers the history of the deformation of the ‘common good’ into the ‘private good’, which rapidly accelerated with mechanized forms of production during the Industrial Revolution, one is confronted by not only the enclosures and the privatization of one major type of commons, land (and its products), one recognizes that privatization would also extend to include even the human person. For what was the slave if not a formerly free entity that was deformed into a ‘good’, that is, a piece of property, or the ‘private good’? Etymologically similar to the word ‘cattle’, which itself derives from the middle Latin capitale, a chattel is a piece of property, and it was this status as property that distinguished 18^th and 19^th century chattel slavery, from earlier, as well as subsequent, forms of the practice.

It is important to bear in mind that the first African slaves to arrive in North America in 1619 were not regarded nor treated as chattels. In the early years of the North American colonies the status of slave did not demarcate a permanent condition of bondage, nor was it based on the newly developed concept of “race.” Rather, it was used interchangeably with the term ‘indentured servant.’ Differentiated from the European indentured servants, if at all, along on the lines of their status as Christians, the African indentured servants and the European servants, dispossessed of their ancestral lands, for the most part found themselves in the New World in similar straits. To be sure, in 1676 black and white indentured servants fought together against the ruling elites in Bacon’s Rebellion. It was in large part due to this threat of revolution by a united underclass that the ruling elites adopted divisive racist policies.[12]

While physical differences were recognized, these were not tremendously important in the early years of the 17^th century. One’s status as a Christian was a far more important determinate of one’s opportunities. By the end of the 18^th century, however, when the slave trade was at its apex, the new system based on race was firmly entrenched and powerfully divided the masses of people in the newly formed United States. Now encoded in the law, ‘race’ – as a subspecies of dominating power – successfully set at odds the great majority of people to toil all their lives for practically the sole benefit of an elite minority of wealthy landowners, industrialists and bankers.

This category of race is by no means natural. To be sure, when Carolus Linnaeus published his Systema Naturae, the “founding document of taxonomy,” in 1758, for example, it contained no notion of racial superiority. Human beings were divided into four groups, based on geography. By the time his student, J.F. Blumenbach prepared the third edition of his own work, his De Generis Humane Varietate Nativa in 1795, however, he had made one significant alteration of his mentor’s system.

“By moving from the Linnaean four-race system to his own five-race scheme, Blumenbach radically changed the geometry of human order from a geographically based model without explicit ranking to a hierarchy of worth, oddly based upon perceived beauty.”[13]

Throughout the 17^th and 18^th centuries, the concrete supports of health, the conditions for health, as imperfect as they were, were being dismantled and privatized.[14] During the period leading up to the Glorious Revolution, and through the French Revolution, the maxim salus populi suprema lex esto was cited repeatedly in support of this aim. While it invoked the public health and the public good as synonyms for freedom and as the rationale for political freedom, there was wrapped within this a narrowly economic notion of salus populi. That is, the liberatory form of health, health as something supportive of freedom, came into opposition with an economic understanding of health – the health of the owners’ resources: the population, the worker, and the slave. Among other things, health was, from the point of view of the owners of capital, conceived of as part of an investment, as a production cost, while the notion of ‘population,’ created at this time, came to designate an economic resource that is in need of maintenance and regulation.[15] Health in this sense is merely instrumental to the economic advancement of the business class.

People were regarded as tools of the owners of the economic system. As such, it is not health at all, but its mere semblance that was under consideration. The converse of this understanding of population as a tool of the economy is the notion that the economy is a tool of its people. In the former sense, where health is equivalent to dominating power, health is but a justification for a type of order. In the latter, where health is equivalent to liberating power, health is regarded as an end in itself, to which economics must be subjugated.

The Enlightenment view of health, however, was not entirely black and white. While economic forces were dominant, and imperialistic, real improvements were achieved in sanitation and public health in general and significant advances were made in the field of science. Alongside the economic changes fueling, among other things, the slave trade, there was a genuine Enlightenment concern with what came to be known at the time as ‘civilization.’ However, while, for example, Cesare Beccaria, and Thomas Jefferson, among others, took an interest in reforming the colonial era’s legal codes, eschewing the harsher forms of punishment such as the cutting off of ears, and ending the death penalty for all but murder,[16] subtending this seemingly sincere desire for reform lay the fact that the disciplinary system was only able to be reformed because it was in the nascent state’s interest to reform it. It made greater economic sense to lock people up in penitentiaries and to extract their labor from them than to spend energy mutilating them, destroying this free source of labor power.

So, while potentially liberatory, the advances in science and public health that were implemented were done so in a generally one-sided, dominating manner, only blending further the dual meaning of Salus (health and power/ the good and the necessary/the good and utility). In the 19^th century in the United States, for example, the maxim salus populi appealed to the primacy of the public health in order to remove slaughterhouses, tanneries and other offensive businesses and practices from city centers, among other things. And these removals, in the name of the health of the people, were in fact accomplished. Yet, at the same time that this notion of the health of the people is apparently exerting its authority, there is also widespread, institutional slavery. That these could exist side by side does not reflect any inconsistency. On the contrary, it is consistent with the owners’ notion of health – their health and the health of an economy that is designed to further aggrandize their health. Aside from a few people outside the ‘mainstream,’ even the term society had nothing to do with the universal humankind of the stoics, but meant a particular type of society, benefiting only a thin slice of the “populi” – that is, not the “populi” at all.

---

[1]  The commons, pasturing land that was held in common for centuries, was made alienable beginning in England in the Middle Ages…

[2]  Karl Marx, Capital, p. 889

[3]  George Orwell, As I Please, Tribune, 18 August, 1944.

[4]  Karl Marx, Capital, Volume 1, p. 885

[5]  Rev. Addington, Inquiry into the Reasons for or against Inclosing Open Fields, London, 1772, pp. 37-43 passim.

[6]  Karl Marx, Capital, p. 896-901.

[7]  William Harrison, Description of England, Ch. 11, Of Sundry Kinds of Punishments Appointed for Malefactors, p. 193.

[8]  Michel Foucault, On Popular Justice, Power/Knowledge, p. 15-16.

[9]  Ibid.

[10]  In his Utopia (1516), Sir Thomas More attributes the rise in crime to the enclosure of common lands: “…the nobility and gentry, and even those holy men, the abbots not contented with the old rents which their farms yielded, nor thinking it enough that they, living at their ease, do no good to the public, resolve to do it hurt instead of good. They stop the course of agriculture, destroying houses and towns, reserving only the churches, and enclose grounds that they may lodge their sheep in them.”

[11]  Dorothy Porter, Health, Civilization and the State, p. 69

[12]  Cooper, William J, Liberty and Slavery: Southern Politics to 1860, Univ of South Carolina Press, 2001, p. 9.

[13]  Stephen Jay Gould, The Geometer of Race, p. 2.

[14]  Michel Foucault, The Politics of Health in the Eighteenth Century, p. 169.

[15]  Ibid.

[16]  Gordon S. Wood, The Radicalism of the American Revolution, p. 193.

This Society Has Cancer

How should one characterize the following situation? One out of every two men, and two out of every three women will at some point in their life develop cancer. In other words, over 58% of the total population - over 150,000,000 people - are statistically doomed to develop some type of cancer. To be sure, some forms of cancer are relatively easy to deal with. When Ronald Reagan developed skin cancer on his nose, for example, it was easily treated. Of course, Reagan was a wealthy and powerful man with a top-notch insurance plan. He probably didn't even have to pay a large deductible!

Many people with similar pathological conditions - most, in fact - will not only not have access to a good insurance plan, they won't have access to any health insurance. In all likelihood, this hypothetical skin cancer sufferer won't have the condition diagnosed before it has metastasized into more serious territory. Hypothetical patients, and hypothetical cases, however, are simply that. So, let's just consider a statistic: one in four deaths in the United States are caused by cancer.

Returning to the question that started this entry, how should one characterize a situation in which cancer is at such levels? Should it be conceptualized, as it tends to be, as just millions of individual problems? To be sure, people may have genetic predispositions toward developing cancer; but a predisposition is merely that. What causes these predispositions to manifest malignantly at such rates is the toxic, disposable and stressful consumer/capitalist society we inhabit. After all, each and every one of us has a genetic predisposition to develop cancer - one only needs to be exposed to enough carcinogens. And such is indeed the case. Just look at all of those frogs with six legs. That said, it might be a fairer characterization to say that it is this society that has cancer. And it isn't confronting the situation very well.

Back during the Nixon Administration a war was declared on cancer. Those were the days. There was a war on cancer on one front, and a war on poverty on another. And had these wars not been abandoned, it is very likely that those fighting would have discovered that they were actually at odds with not two distinct but one multi-faceted enemy. For the society that creates the sundry toxins that cause cancer does so in a manner that creates and reproduces poverty, and vice-versa. That is, this society has cancer. As such, those fighting it were fighting themselves. No wonder they quit. Or did they?

The maxim salus populi suprema lex esto , which maintains that the health of the people is the supreme law, is understood to function as a metanorm in US law. As such, all laws and practices must comply with this maxim or lose all validity. As void laws, they are merely phantoms of law - however, phantoms are known for their ability to control people.

Because peoples' health requires certain conditions to be present, and certain conditions to be absent, a society's legitimacy - according to the maxim - rests on its ability to create and reproduce these conditions of health. As the prevalence of cancer in this society indicates, our society preponderatingly creates conditions of disease. As such, its practices are in actuality outside of the law, mere phantoms of law, replete with armies of enforcers, all masquerading as legitimate.

Health, Economy and Freedom

In addition to Asclepius’ daughters Hygieia (the goddess of preventive medicine and healing) and Panacea (the goddess of universal remedy), his daughter Aigle, the goddess of radiance and beauty, deserves mention. 

The offspring of Aesclepius’ union with Lampetia, the personification of light, Aigle’s name is derived from the word aegle, or aigle, meaning splendor, brightness, or radiance. “Fair-eyed Aigle” reputedly received her name from the beauty a human body in good health radiates - the beauty discussed in Plato's Gorgias, among other places. Among other things, this radiating energy finds corresponding expression in the Pythagorean and Stoic notion of a world soul, as well as in the Chinese concept of qi.

According to the Chinese philosopher Mo Di (470-391 BCE) early humans developed architecture, for among other reasons, to protect their qi (their health or vital energy) from the problem-causing moisture of the caves they had earlier inhabited. He also asserted that one could maintain one’s qi with adequate nutrition.

Mencius agrees with Mo Di that qi can be harmed by exposure to adverse conditions. He also taught that qi is necessary for activity, and is controllable by willpower. And, echoing the Stoics, the 4^th century BCE thinker Zhuangzi wrote that “one qi pervades all in the world.” Among other things, traditional Chinese medicine teaches that diseases arise from qi that is blocked or interrupted. When it flows well, health results.

In many respects qi is comparable to Hippocrates’ notion of a ‘healing force.’ Hippocrates uses the word physis, which is sometimes translated as ‘nature’ and other times as ‘physic’ to refer to the body’s power to heal itself. Within medicine the term is often employed to designate ‘growing’, as in epiphysis, or symphysis.

According to Hippocrates, as long as bodies receive the nutrition and other supports they require they will heal themselves. As such, for Hippocrates a physician’s chief function is to remove obstacles to this natural generative tendency, allowing organisms to recover their own health. While Hippocrates may have been mistaken in thinking that such practices as bloodletting would aid the patient in recovering the balance of her or his “humors,” the notion of the nature of healing as a dynamic process of becoming as opposed to a static state maintains a respected position in contemporary efforts to understand these functions, as well as in his positing that diet, environmental factors and living habits contribute to the development of disease.

Among other things, Hippocrates’ notion of physis, this generative healing force, was associated with Asclepius. Akin to the Stoic notion of a world soul immanent to everything, this physis would also find expression in what would become known as the conatus. Derived from the verb conor (to undertake, venture, attempt), conatus is defined as a type of striving, an energy very much like the Stoics’ world soul as well as the Chinese qi.

Hobbes referred to the conatus both as a “will to survive,” as well as a ‘restorative force.’ Among other things, he described the ability of springs to resume their prior shape after being compressed – what is today known as elasticity – as an instance of the conatus.

Spinoza’s conceptualization of the conatus is elaborated beyond Hobbes’. Akin to Hobbes’ notion, the conatus for Spinoza is an inclination to increase in power, one that all beings possess as they “strive toward perfection.” 

In his Ethics, Spinoza writes that happiness “consists in the human capacity to preserve itself.” And that sadness is a result of opposition to this striving conatus. But where the conatus was for Hobbes a mental entity, for Spinoza it is material.

In Spinoza’s treatment the conatus assumes various forms. While in its physical, material form it is understood as conatus proper, in the psychological dimension it is referred to as Voluntas, or Will. When both the psychological and physical dimensions are together, as in sentient creatures, this is known as appetite. And when appetite is joined with consciousness of this appetite, Spinoza calls this Desire. As Genevieve Lloyd puts it, “in reflexive consciousness, the conatus is experienced as desire.”

One encounters articulations of this immanent striving throughout the history of philosophy. Approximations appear, for example, in Schopenhauer's and Nietzsche's respective notions of the will, Freud's libido, and in Bergson's elan vital, as well as more recently in D. W. Winnicott's concept of creative impulse, and in Deleuze's notion of desire. All of these share affinities with the notion of the conatus, and the radiant impulse at its core.

A similar notion was suggested by Ludwig Wittgenstein when he wrote that “within all great art there is a wild animal, tamed.”  One can easily read this wild animal as the conatus, or the qi as described by Mencius, which needs to be focused into some pursuit. Likewise, in a letter written to his sister whose house he was at the time designing, Wittgenstein wrote: “but primordial life, wild life striving to erupt into the open – that is lacking… and you could say it isn’t healthy.” Here again we find a link connecting the conatus with health.

But while radiance is a necessary aspect of health - a constitutive part of Asclepius - it alone is not health. As with qi, it needs to flow well for health to manifest - or, rather, its flowing well is indistinct from health. But what does it mean to flow well? It is interesting that this brings our discussion back to not only suggestions of eudaimonia, but to the concept of qi, and that with which qi is closely aligned, Taoism. Emphasizing the harmonizing of one's will with nature, Taoism is also closely related to Stoicism. Each stress the importance of moving through the world in a harmonious manner - a manner described by William S. Burroughs in his comical short story The Discipline of DE (Do Easy).

Burroughs writes that, "DE is a way of doing. It is a way of doing everything you do. DE simply means doing whatever you do in the easiest most relaxed way you can manage which is also the quickest and most efficient way, as you will find as you advance in DE."

Burroughs' description of DE jibes very closely with the notions of harmony associated with taoism, qi, and stoicism. And it does not seem merely coincidental that the term ease is in many respects synonymous with health. Indeed, it is precisely the negation of ease that leads to dis-ease.


Also noteworthy here is the Italian philosopher Giorgio Agamben's description of ease. In his The Coming Community, Agamben dedicates a chapter to the notion of ease. In this chapter, simply titled Ease, Agamben defines ease as, among other things, "the empty place where each can move freely", and "the free use of the proper" (Agamben, 25), connecting the notions of ease, or health, with freedom - and not merely the freedom from disease, coercion and domination, but the freedom to develop potentialities.

All of the above meanings have accreted onto the notion of health as liberating power, and they are consistent. Coercion, Domination, and even uninformed consent in the bioethical context, all constitute conditions of disease, against Liberating Power and conditions of health. Of course, there is a zone of indeterminacy between these two wherein each risks slipping into the other, as when playing devolves into fighting. However, there are certain things that contrast clearly, as a polluted stream does to a healthy one.

If, then, as the maxim has it, the Health of the People Is the Supreme Law, this implies as well that the dis-ease related to unnecessary difficulties, for example work that does not further health, or work that results in a diminution of one's health to the aggrandizement of another's (i.e. exploitation) is against the law. As such, irrespective of the waste and pollution it by design creates, the economic system of capitalism is against the supreme law. Not only does its commodification of resources alienate people from the conditions of health (for example, extracting rent from people in exchange for living on land that was only privatized by means of force), creating conditions of disease, its social relations - wherein domination is ever-present in relations of exchange - are structurally opposed to health as well. As such, in order for the health of the people to flourish, and for the supreme law to prevail, this economy of disease needs to be dismantled, and replaced with an economy of health.

Of Broccoli, Health, Power and Austerity

Yesterday's New York Times featured an article describing how a committed group of libertarians had managed to frame the debate concerning the constitutionality of Obama's health care law around the question of whether the government has the power to make people if not eat at least buy broccoli.

Because whether the state has the power under the commerce clause to force people to purchase insurance is at the heart of the of question of its constitutionality, one sees Obama supporters asserting that, yes, the state does indeed possess this coercive power, while at the same time making efforts to distinguish the purchase of health care from other commodities.

While reading the story at a cafe, I imagined a scenario unfolding on the sidewalk outside involving a woman walking her dog. It was a very handsome dog. And a man stepping along in the other direction, happening to notice this very handsome dog, crouched to pet it, remarking to the woman that this is just such a fine dog indeed. After a few pleasantries and questions concerning the dog were exchanged, the man stood to his full height and offered the woman $1,000 for the dog. Scoffing at this, the woman declined and announced that she had to be on her way. Intent on owning this dog, however, the man upped his offer to $10,000. Scoffing a little less now, the woman still declined. Fine, the man countered, I will give you one million dollars for your dog. Still, the woman declined. This dog is not for sale, she said. Some things are just not for sale, OK? But you are interfering with free trade, complained the man. I don't give a damn, the woman replied. Some things are just not for sale, you got that? And at that she walked away.

As capitalists intent on privatizing everything they can, and creating new "markets" thereby, the Democrats or the Republicans should not be expected to adopt the position of our hypothetical dog walking lady that some things are not for sale. To be sure, Republicans and Democrats alike are selling off all sorts of valuable publicly owned resources to private hands, from highly valuable federal lands to mineral rights, and water rights for fractions of their market value. Just this week the New York Times ran a story of how Bloomberg is in the process of selling all of the city's parking meters (which provide a tremendous amount of consistent revenue) for a fraction of their actual price. It is interesting, to say the least, to observe how the at least nominally collectively owned resources of our society, the common good, are being privatized.

Perhaps it goes without saying that if the Democrats had wanted to actually help people and not just business by maintaining health care as a profit-making commodity in the first place, their law would not be vulnerable to this sort of attack. Of course, even if they had used their former congressional majority, and Obama's early political popularity, to push through a sort of medicare-for-all type of universal health care program (which they obviously did not want to do), the Republicans would no doubt challenge its legality on some other constitutional ground.

That we are witnessing and being subjected to a course of economic austerity is a simple fact. If not losing their benefits, public sector employees are losing their jobs altogether. Public programs are being cut, public schools are being privatized in a land grab that hearkens to the Enclosure Acts. Such cuts - or sales - are necessary, we are told. At the same time we see a military larger than ever, waging endless wars at tremendous human costs and financial costs as well. We see the largest corporations, and the wealthiest sectors of society, being all but excluded from paying taxes. The list goes on and on. Yet, no one seems to ask: if we really do need to be so austere, then maybe we should stop all this military spending. And of the military we have at our disposal, perhaps we could employ it to fix our infrastructure instead of occupying large swaths of the world. Such questions, however, fly in the face of the 'reality' within which we live. As such, such things just make no sense.

While the U.S. Constitution is open to various interpretations, only a few interpretations fit within the mainstream of constitutional interpretation - many of which these days hold to the extremist bent seeking to push legislation in this country to its pre-New Deal position. We must not forget, though, that while the Constitution is the law of the land, it itself is governed by certain meta-norms. For example, the maxim nemo est supra legis, that no person is above the law, is a standard, overarching meta-norm that governs the constitution. Another such meta-norm is salus populi suprema lex esto - the health of the people is the supreme law.

If, as the maxim declares - and this maxim has been cited countless times by state supreme courts throughout the land, as well as by the U.S. Supreme Court in numerous cases - the health of the people is the supreme law, then that which is against the 'health of the people' is against the law. That is, if there are conditions that are against the health of the people, then these conditions need to be rectified in order to comply with the supreme law. In other words, it is the role of a society - of self-government - to create the conditions of health. So how do we begin to discuss these conditions? For one thing, those things necessary for producing and reproducing conditions of health should not be for sale. They should be outside of commerce because there is a profound conflict of interest between what is required for health, and what is required for profit.

In the context of the debate concerning health care, it would seem a pretty uncontentious thing to remark that not having access to health care is hostile to the Health of the People. In order to conform with the law, then, that condition needs to be rectified, that absence needs to be rectified through the supplying of such care - and not at a price. It must be free. For there is a difference between supplying something and selling something. Indeed, selling something - making it conditional on an exchange - is to erect a barrier between the thing that is supposed to be supplied. That is, it is not supplying it at all. So, while the conclusion of the hygiecratic argument for why it is illegal to pay for health care may be similar to that of others, the argument and the reasoning is significantly different, with significantly different ramifications.

Bloomberg and the Semblance of Health

In the fourth century BCE, in his Gorgias, Plato distinguishes health from its mere semblance. Among other things, health is described by Socrates as the source of beauty. The mere appearance of beauty, on the other hand, is said to be fabricated by cosmetics.

While there is no lack of cosmetics in the shops one comes across in today's world, the things which provide a mere semblance of health are by no means restricted to cosmetics. Of the things that come to mind most readily are the prevalence of tanning salons and gymnasiums, the proliferation of anti-depressants such as prozac and zoloft, as well as recycling programs, among other things. Of course, tanning salons and gymnasiums/health clubs are distinct entities. Whereas it is difficult to imagine the health benefits of tanning, working out in a gym does provide significant physical exercise which, relevantly, is good for one's health. However, it is important to note that even if the person working out in the gym is not some vain sort merely interested in superficial health, or worse, some compulsive exerciser, working out alone is not enough for health. Beyond a healthy diet, health requires a variety of things that industrial and post-industrial societies systematically and vigorously preclude.

Beyond living in a world in which the air, the water, the land and the food are persistently polluted, most people suffer from stresses that seriously undermine health. In addition to the stresses attending just running around to pay the rent and the bills, to name just a few, and the stresses of noise - which are being found more and more to weaken peoples' immune systems - most people live their lives in perpetual states of sleep-deprivation. Without the resources and supports necessary to resist these and other pressures people fall inexorably into disease. To be sure, it is no surprise that rates of cancer have been at epidemic levels in this country for decades.

All of these stresses take their toll, and alter peoples' bodies chemistry - just as hunger alters body chemistry. And while some people are afflicted by chronic depression that demands serious medical attention, instances of doctors prescribing medications such as prozac to "correct" chemical imbalances that are often attributable to environmental factors is not very different from applying makeup to a face ravaged by lack of sleep. Relatedly, it is a tragic irony that more and more children are being pathologized and medicated because their natural energies and health resist a social order demanding ceaseless work and conformity. Their resistance must be recognized for what it is. On another level, the epidemic levels of cancer afflicting society is not only the failure of physiological and immunological resistances, it is the failure of political resistance as well.


All of this is to say that there are deep, structural and institutional forces that interfere with our collective health. Air pollution from industrial and commercial sources that burn fuels, and motor vehicle exhaust, to name just a few sources of harms, lead not only to widespread cardio-pulmonary diseases, cancer, and asthma, but to disorders as varied as near-sightedness, reduced mental alertness, impaired fetal development, and are suspected of contributing significantly to rates of autism, among other disorders.

Among other things, compared to those whose immune systems are less stressed, those who experience more stress - the so-called 99% - are more susceptible to contracting illnesses. For instance, someone less worried about paying the bills has more energy to resist the physiological harms attending ingestion of significant amounts of sugar, or tobacco, or particulate matter, than will his or her more stressed-out counterpart.

So while, for example, cigarettes are undeniably bad for one's health, and lead to an estimated 430,000 deaths per year in the United States, and sugary soft drinks are harmful as well, to focus simply on the harms caused by a few consumer products in particular, as opposed to the harms caused by 'consumer society' in general is ultimately to focus on the wholly superficial.

Michael Bloomberg's so-called health initiatives, therefore, rather than promoting social health in a meaningful manner are merely, like cosmetics, semblances of health. Rather than promoting actual health, which is a variety of liberation from a dis-easing system, Bloomberg's policies perpetuate relations of domination. This position of his is consistent with his use of 'public health' as a pretext for shutting down the Occupy camp at Zuccotti Park in November of last year. For while it was by no means in possession of a homogeneous message, the so-called Occupy movement at the very least sought to transform the world into a more healthy one. Against a transformational, meaningful health, Bloomberg reacted with great force to implement his superficial, cosmetic health, which is not really health at all.

The meaningful promotion of actual social (and individual) health requires not a few campaigns against relatively superficial consumer products, but a radical transformation of the institutions of 'consumer society' altogether. Until not only power and stresses, but resources like land and water, are equitably distributed and cared for in a manner in accord with the actual general health, we will inhabit at best a semblance of health - which is, in actuality, to live in a world of disease.

If the maxim salus populi suprema lex esto -  the health of the people is the supreme law - is in effect (as jurists constantly tell us) those conditions hostile to peoples' health are in conflict with the supreme law. Accordingly, those conditions of disease mentioned above, among others, need to be halted, and the conditions of health need to be created. Justice demands no less.

Health and Freedom

In section ix of his A Treatise of Human Naure of 1740, David Hume rejected the doctrine of Passive Obedience [to royal authority], describing it as an “absurdity.” Two years later, in his Of Passive Obedience, he again rejected the doctrine of obedience and submission to sovereigns. Appealing to the maxim salus populi suprema lex esto,[1] he argued that resistance to tyranny is “lawful or commendable,” but only when it is justified by necessity.[2] This adds a new layer of meaning to the maxim insofar as it inverts the relation that until the eighteenth century held sway. That is, whereas until this point Necessity justified sovereign power, now Necessity is invoked in justification of its opposition. Just what Hume understands Necessity to mean, however, requires attention.

 In his Of Liberty and Necessity, Hume defines ‘the doctrine of necessity’ as causality, determinism, and inevitability, describing its opposite as ‘chance’ – thereby equating the doctrine of necessity with Ananke. Liberty, he apprises us, is opposed not so much by Necessity as by something different: constraint. Liberty is the power to act or not act in relation to constraint. Placed in relation to necessity, liberty only appears to be liberty but is in fact closer to chance.

To the extent that this is the case, Hume’s invocation of Necessity as a justification of resistance requires some analysis. For, while Liberty has this dual meaning vis-à-vis Necessity, would this not imply that necessity is also related to something akin to constraint? After all, what is necessary is a constraint to some degree. At any event, what is interesting to note apropos our investigation of Salus is that Hume not only draws an equivalence between the doctrine of necessity and the inevitability of Ananke, but insofar as he defines Liberty as “a power of acting or not acting, according to the determinations of the will,”[3] he equates liberty with health. This is so insofar as liberty, the power of acting or not – or, as we have seen earlier, liberating power – is opposed to the dominating power of necessity and fate. So, just as much as Ananke is opposed to Asclepius, Necessity/constraint is opposed to liberty - furthermore, liberty is constitutive of health.

Like Liberating Power, Liberty, this power of acting, according to Hume, is subject to the will, to a focusing of one’s energies. Insofar as it is closely related to the conatus and the world-spirit of the Stoics the will is also intimately associated with Salus. For example, Thomas Hobbes, who writes of a “will to survive,” in many respects employs the terms will and conatus interchangeably.[4] Though coming from a different direction than Hobbes, Spinoza, as well, will replace the term ‘will’ with conatus.[5] In the works of Arthur Schopenhauer, who writes of a Wille zum Leben, or “will to live”, we again see the association with a self-preservation instinct, which is also the domain of the conatus, coupled with that of the will. And, although he fails to distinguish the liberating from the dominating aspects of power, we again confront the intimate association of the will with the conatus in Nietzsche’s Wille zur Macht, or “will to power”, a conceptualization that would find echoes in, among other things, the ‘will to pleasure’, or pleasure principle, of Sigmund Freud. That conative energy, that radiance that is the healing power of salus is, if not indistinct from ‘the will’, at least that which the will focuses - all of which is consistent with the insight of Hegel that "the essence of spirit [conatus] is freedom." (Philosophy of History, §21)

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[1]  David Hume, Of Passive Obedience, 1742.

[2]  Ibid. II.XIII.3

[3]  David Hume, Of Liberty and Necessity, Part I

[4] Schmitter, Amy M. (2006), "Hobbes on the Emotions", Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/emotions-17th18th/LD3Hobbes.html, retrieved 2006-03-04

[5] Allison, Henry E. (1975), Benedict de Spinoza, San Diego: Twayne Publishers,

[6]  Ibid.