At the Daily Beast, Keli Goff has a piece on “Why Blacks Aren’t Libertarians.” In fact, however, she may be a libertarian; at least, nothing in this piece shows why she cannot be. However, she definitely rejects a kind of dogmatic, absolutist libertarianism that she has encountered – and reasonably so, in my view. Here is the rub:
I presented the caller with the same hypothetical I do to so many of my self-professed libertarian friends: I’m injured in a plane or car crash. There is one hospital located in the town in which the crash has taken place. Do you believe the hospital has a right to refuse to treat me on the basis of race, and that the government has no moral or legal imperative to require the hospital to treat me?
One can make a convincing argument that a florist refusing to provide flowers to a same-sex wedding, or an upscale restaurant not welcoming African Americans, aren’t really major civil rights issues. (Frankly, in this day and age, if a restaurant refused to serve me I might use the power of the Internet to help put it out of business, but I wouldn’t see the point in suing someone to serve me when there are plenty of other dining options.) But when it comes to issues like government-mandated access to health care and education for all Americans, there is more at stake.
I would say that the hospital has a legally enforceable duty to accept anyone at imminent risk of death or injury. This is the “safe harbor” exception to the right to exclude that constitutes part of the bundle of private property rights. The safe harbor exception holds that in cases of dire emergency, you lose the right to exclude others from access to your property.
There are at least two important categories of cases here. One consists of cases in which there is no time to obtain consent: my wife is suffering a heart attack, and to save her I have to break into a locked building and take out its defibrillator. We should be able to assume consent in many cases when it is costly to obtain an answer from the property owner, and the foreseeable costs to the property owner are nil (e.g., I will compensate for any damage I cause).
Another category consists of cases in which original appropriation ends up leading to a monopoly, which if exploited could cause severe harm. One such example is Bill Bradford’s old chestnut: you fall out of an apartment window and on the way down grab a flagpole; the owner of the flagpole leans out and demands, “Let go!” Obviously, you have no obligation to let go. Robert Nozick gave an example of appropriating an oasis in the middle of the desert and demanding all the worldly goods of those who pass by in dire thirst.
So it seems clear to me that the hospital example fits into the latter category. If you’re in a life-or-death situation, you must be given access to the hospital. Now, that doesn’t mean you could conscript (enslave) a person to perform surgery on you – the right to exclude from one’s own body admits of no exceptions. And in extremely rare cases, a free society might therefore result in people’s avoidable deaths from lack of care – but of course that sort of thing happens now, all too often.
Now, I don’t know what Ms. Goff means by “government-mandated access to health care and education for all Americans,” but if she means large bureaucracies that provide these services at immense taxpayer cost on an ongoing basis, then she is indeed not a libertarian, as libertarians would not support that agenda. But neither does such an expansive government role in those industries follow from the emergency exception to the right to exclude just explored.