Public Health as a Constitutional Principle

Abstract

Public health is commonly regarded as a branch of public policy. While few governments would dispute that public health should be a core responsibility of the state, in practice, it is frequently reduced to a branch of administration, in competition with other branches over annual budget distributions and policy priority. This paper advances the argument that the state should prioritize public health for one crucial reason: public health is a normative principle that constitutes the modern state. As a constitutional principle, it demands the state to promote and preserve public health. The paper examines first what makes public health a normative principle, and then examines why it is a normative principle that makes demands on the state. In so doing, the paper distinguishes public health as a constitutional principle from the constitutional right to health. The paper concludes with a reflection on the urgency to prioritize public health, not merely because of policy needs, but on the ground that it is a foundational normative principle of the modern state.

Introduction

The purpose of this paper is to examine what public health ought to mean to the political state. It argues that the concept of public health itself has certain normative features such that it should be understood as a constitutional principle; namely, a normative principle that constitutes the political state, like the principle of the rule of law. The paper carefully explains why the concept of public health has such a normative dimension, as well as how public health should and can be a constitutional principle. The paper concludes with a few cases for the importance and urgency of treating public health as a constitutional principle. At least one of the reasons to treat public health as a constitutional principle is that public health is commonly perceived as a branch of public policy. While most governments would not reject the idea that public health should be quintessentially the end of governmental responsibilities, in practice, public health tends to be reduced to a part of administrative branches, in competition with other branches over annual budget distributions. This paper provides an ambitious argument that public health should be a normative principle that defines the modern constitutional state as a reason to prioritize public health.¹ It does so by (i) analyzing why and how public health is normative and what it demands as a principle, and (ii) conceptualizing how public health can be a principle of constitutionalism.

The paper has three parts. In the first part, it revisits the concept of public health to delineate what makes public health normative. The paper argues that for public health to be normative, it needs to have certain values that are morally desirable to provide directive reasons and/or be the source of rules that guide human actions. After establishing the normative quality of public health, the paper then argues that public health should be understood as a normative principle requiring public power to shape a healthy community for promoting and preserving its members’ health. It explicates public health in terms of the 3-fold meaning of public (public power, community and public actions) and the 2-fold meaning of health (clinical and functional). The second part turns to examine what public law scholars call ‘the principles of constitutionalism’ (Barber, 2018). It suggests that the nature of the modern constitutional state is defined by the state being a composite entity that is constituted by institutional agents operating within the remit of a specific institutional normative order (constitution) and its normative principles (constitutionalism) toward certain political ends. This helps clarify why public health as a normative principle is a principle of constitutionalism. The third part further analyzes public health as a constitutional principle and distinguishes it from the constitutional right to health. It argues that public health should be normatively understood as a principle that defines the modern constitutional state, and that the constitutional right to health is only a dimension of its normative demands. The paper concludes by noting the urgency of taking public health as a constitutional principle and reflecting on its shortcomings.

Public Health as a Normative Principle

This section has two aims. First, it argues how and why public health should be taken as a normative principle. Second, it analyzes what, as a normative principle, public health normatively demands. In so doing, this section inevitably engages with a conceptual analysis of public health. Over the past decades, the meaning of public health has received much scholarly discussion across wide-ranging academic and professional disciplines (Nordenfelt, 1995; Brülde, 2000; Gostin, 2001; Rothstein, 2002; Verweij and Dawson, 2007; Coggon, 2012). This section does not aim at developing a new, comprehensive conception of public health. The conceptual analysis here is explanatory. It serves as a way of explanation of why public health should be a normative principle, and the contents of its normative demands. The section’s analysis is largely resonant with Verweij and Dawson’s (2007) seminal contribution, though it places more emphasis on what makes public health normative.²

The phrase ‘public health’ includes a 3-fold meaning of ‘public’ intersecting with the 2-fold meaning of ‘health’, making public health a conceptual nexus at the heart of which is the value of health. The first two meanings of public can be seen in several institutional statements. The American Public Health Association (APHA) defines public health in terms of its capacity: ‘public health promotes and protects the health of people and the communities where they live, learn, work and play’ (APHA, 2022). The UK’s National Health Service defines public health by its characteristics: ‘public health is about helping people to stay healthy and protecting them from threats to their health’ (NHS, 2022). Both definitions portray a widely recognized feature of the meaning of public health that emphasizes the idea of ‘public’ (Coggon, 2012; Gostin and Wiley, 2016; Stein, 2022). There are two senses here. The first is clearly identified in both the APHA’s and the NHS’s definitions. ‘Public’ means the people or the shared community in which individual members live their daily lives. This informs the first conception of public health as the health of the community. This can be easily recognized in the APHA and the NHS statements. The second meaning of ‘public’ is also implied. It means the use of public power to make legislation and policy. Public health in this sense stands for the use of public power to make laws and policies to promote or preserve the health of community (Coggon, 2012; Gostin and Wiley, 2016).

There is a third meaning of ‘public’ in public health in terms of the collaboration between public power and private agents based on concepts like solidarity (Dawson, 2012; Prainsack and Buyx, 2017) or common good (Ataguba and Mooney, 2011; Weinstock, 2016). But to fully appreciate this, it first requires an explication of the 2-fold meaning of health. Health, in general, concerns individuals. It is conceived as a person’s experience of physical and mental statuses determining whether she could realize her vital goals in standard circumstances (Nordenfelt, 1995). This includes a biomedical (or clinical) sense and a functional sense of health (Brülde, 2000). The biomedical (or clinical) sense is the external, professional definition of health in terms of the absence of disease, injury and illness. It is the physiological and psychological condition of the functional sense of health; that is, one is healthy enough to have the capacity to pursue one’s vital goals. It is worth noting that there is also an internal, subjective definition of health as one’s feeling of being healthy (Sen, 2001). But it can be included in the functional sense.

Health is not exclusively individualistic. The health of individuals has much to do with ‘standard circumstances’ within which one can realize one’s vital goals. These circumstances include the social and political community in which individuals live their lives. The individualistic outlook of health is connected to the social and political condition that is subject to changes made by legislation and policy. A key part of public health ethics thus emphasizes the justificatory criteria for public power in shaping the health of the community (Holland, 2015). Meanwhile, this means that one’s health (both clinically and functionally) is interrelated with whether one’s community is a good environment for one’s health. As a result, one may need to participate in public actions to shape or contribute to a healthy community so that one can enjoy health in it. This underlies the third meaning of ‘public’ in public health: the public actions undertaken by the collaboration between public and private sectors.

The three senses of public and the two senses of health give an account that explains what public health does:

Public health means the use of public power (the first meaning of public) to collaborate with private sectors and individuals (the third meaning of public) to preserve or to improve the health of a community (the second meaning of public) so that its members can enjoy health in both clinical and functional senses.

This largely correlates with Mark Rothstein’s (2002) thesis that public health strictly speaking is a matter of governmental interventions on health and Verweij and Dawson’s (2007) characterization that the notion of public health entails a normative dimension. But so far, this account only interprets what public health does. It has yet to show why public health does so in terms of normative demands. In fact, when Verweij and Dawson argue for the importance of public health’s’ normative dimension, they do not examine why public health’s demands are normative. They refer to Lawrence Gostin’s argument for public health as ‘society’s obligation to assure the condition for people’s health’ (Gostin, 2001), and suggest that including normative elements in public health has advantages because ‘once we accept something as a suitable definition, we are compelled to accept it as being a guide for action’ (Verweij and Dawson, 2007). This is an explanation for the benefits of public health’s normativity, not an analysis of why it has a normative dimension.

For something to be normative, it requires the object in question to entail values that are morally desirable so that the object can make demands on its recipients by providing directive reasons and rules to guide their actions in order to realize those desirable values (cf. Parfit, 2011: 144–149; Raz, 2011: 85–105). To argue for the normative dimension of public health, one requires at least an answer to the question: What in public health makes it entail morally desirable values so that it can give directive reasons and rules to direct actions? A useful answer can be derived from a more careful understanding of the functional sense of health. According to Brülde (2000), the functional sense of health in terms of clinically healthy enough to pursue one’s vital goals is essential to one’s pursuit of well-being. A similar account highlighting health’s importance to well-being is also made explicitly by the constitution of the WHO: ‘Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’ (WHO, 2005).

While the WHO’s equation of health as well-being has become the subject of critique, namely that this makes public health too inclusive a concept to lack theoretical and pragmatic focuses (Rothstein, 2002; Verweij and Dawson, 2012), the functional sense of health is somewhat different. To say that the clinical sense of health is essential and/or instrumental to one’s realization of one’s vital goals, which can be but not exhaustively the pursuit of well-being, is not the same as saying that health is the pursuit of well-being. If one held that health is quintessentially the core of well-being, then surely health is a value worth pursuing. But the value of health does not diminish even if one believed otherwise. Even if one believed health is only instrumental to the pursuit of one’s vital goals which is not well-being, the instrumentality of health remains necessary as one requires at least a healthy enough physical or mental status to pursue them. Insofar as health is essential to one’s pursuit of vital goals, the functional sense suffices for health to entail values that are morally desirable.

The normativity of public health lies in the values of health as something worth pursuing. The pursuit of health does not need to be an end in itself. It can be something worth morally pursuing because it is necessarily, instrumentally good to pursuing something further. Without claiming that health is well-being, the functional sense of health is able to provide the ground of normativity for public health. It allows public health to take health as ‘all-things-considered’ good in the following sense: when put in comparison with other values, from well-being to the claim for the liberty to smoke, health remains, from the perspective of public health, good in comparison to other values being considered (Chang, 2004). A quick example is helpful. While liberty and well-being are values that are worth pursuing, these values can be included in the comprehensive value of health: it requires a certain degree of health to practice liberty (even the freedom to smoke requires a healthy enough status for one to smoke), while a healthy environment provides better chances for every member to have a just (or fair) share in pursuing well-being.

With this normative foundation, it is now possible to move from an interpretation of what public health does to what public health normatively demands:

As a normative principle, public health demands that public authority (the first meaning of public) ought to use its powers to collaborate with private sectors (the third meaning of public) to preserve or to improve the health of a community (the second meaning of public) so that its members can enjoy health in both clinical and functional senses.

There are more normative demands. For example, public health as a normative principle also makes a demand on individuals according to the third meaning of public. It requires individuals to participate in shaping a healthy community. This can generate a tension with the first meaning of the public that can be framed as the tension between the public good and the private interests (Holland, 2015). This is beyond the emphasis of this paper. The paper’s subject is public health as a constitutional principle, and therefore only emphasizes public health’s normative demands on public power. However, suffice it to say that the tension is a superficial one, especially when considering the second meaning of public as community. Simply put, the public and the private are closely intertwined here. A community is constituted by individuals, while individuals, despite that they can retreat to their private spheres, are members of the public. Overplaying the distinction ‘pits people outside of and against something of which they are supposed to be a part’ (Coggon, 2012: 29).

This section has argued that public health is a normative principle characterized by the conceptual nexus comprising three meanings of public, two senses of health and the value of health. As a normative principle, it makes normative demands on public power. But what makes its demands legitimate? After all, not all normative principles can make demands on public power. For public health to do so, it needs to be a specific kind of normative principle: a principle of constitutionalism. Precisely because it is a principle that is foundational to the formation of the state, it makes normative demands on its public power. But to advance this point, one needs an account of constitutionalism. This is the subject of the next section.

Constitutionalism: Normative and Political Power

Modern states are constitutional states. This has two distinctive meanings. The first is descriptive and straightforward. Every modern state has a constitution, written or unwritten, that guarantees the fundamental rights of its citizens, defines the purpose of its government and confers political powers onto (as well as demarcates political powers among) governmental institutions. The second meaning is broader and conveys normative implications. Every modern state is constituted by layers of intersections between different institutions and institutional agents, and, consequently, is constituted by the institutional normative order they created. These institutions and institutional agents only have the legitimacy to use their institutional powers because these powers are conferred onto them by the constitution of the state. But not all the powers performed are granted in the writings of the constitutional law. Constitutional law provides the normative ground for institutions and institutional agents to act, but the specific use of power depends on further legislation and policymaking. For example, the constitution only confers the power to establish post offices onto the US House of Congress in the so-called Postal Clause in Article I Section 8 of the U.S. Constitution. The laws regarding postal service that render federal postal service possible are subsequently legislated in different legislative settings, such as the law regulating postal agents not to collect, receive or carry unlawful items is only legislated in 1909, and subsequently amended in 1948 and 1994 (U.S. Public Law, 1994). A constitutional state in this sense cannot be reduced to a descriptive account of a state with a constitution, as its meaning entails public laws and policies that are beyond constitutional law.

This has a broader, normative implication. The constitutional state is not only a state with a constitution. It is a state constituted by institutional agents and institutions, whose power to act is created or authorized, but not exhausted, by the constitution. It means that subsequent actions (legislating and policymaking) undertaken by these institutions and institutional agents ought not to contradict the normative power granted by the constitution. It also means that these agents’ actions constitute a normative order that is grounded in, but not equivalent to, the constitution. The modern constitutional state is constituted by this normative order established by actions of these institutional agents and institutions. And the normative order they created, and according to which the modern state is constituted, is called constitutionalism. ‘Constitutionalism comprises a set of principles relating to the institutional structure of the state’ (Barber, 2018: 10). These institutions and institutional agents both participate in creating the normative order and are bound by the principles of it. While the constitution provides the ground of their claim to legitimacy, what empowers and regulates them are not always the constitution, but the principles of the normative order of which they are a part. These are the principles of constitutionalism.

This section argues that the second meaning of the constitutional state is more compelling than the first (and it includes the first). It also suggests that the constitutional state should be understood as being constituted by a particular type of institutional normative order; namely, constitutionalism and that its institutions and institutional agents ought to act in respect of the principles of constitutionalism. This is because law itself is an institutional normative order. There are two senses of this. On the one hand, law is formed by institutions like contract and property. On the other hand, law is made, amended, administered and enforced through institutions and institutional agents like legislatures, courts and police officers (MacCormick, 2007: 12). While it is true that the law made by the modern constitutional state is only a type of law, it is also undeniable that the modern constitutional state is necessarily constituted by law. The common definition of the state indicates that, howsoever one conceptualizes it, the state at least requires three necessary elements: territory, the independence of sovereignty to make and to enforce laws within its claimed territory, and the recognition of the claim of legitimacy and independence of that sovereignty by both its people and other states (Kelsen, 2009: 207–233; Jessop, 2015: 25–52). This can be further simplified as the independence of sovereign jurisdiction and the recognition of it. The modern state cannot exist without law, legally established institutions and institutional agents. As the result, the state constituted by law, institutions and the institutional agents ought to be constituted by an institutional normative order.

As briefly mentioned above, the modern state is not just constituted by any institutional normative order. It is constituted by a specific one: constitutionalism. Constitutionalism holds that the state is constituted by institutions and institutional agents whose powers to act are conferred by the constitution. Institutions and institutional agents then have the right to exercise their powers to create another power that would become the ground of further right to act for other institutions and institutional agents who are also a constitutional part of the state, as can be seen in the previously mentioned case of postal service. Accordingly, constitutionalism entails a cluster of institutions and institutional agents whose uses of power are only valid within the normative condition in which their institutional power is created. Constitutionalism entails what Joseph Raz calls ‘chained normative powers’ (Raz, 2022: 164–168). The powers of institutions and institutional agents that constitute the modern state are chained powers as they are originated from the constitution’s conferral. For example, the U.S. constitution confers the power to legislate onto the U.S. House of Congress, and in so doing creates a new power for the U.S. House of Congress to use which is different from the power the constitution has. The U.S. House of Congress then uses this new power to create further new powers for different institutions and institutional agents to act, as seen in the case of federal postal services. These powers are normative as they are powers to bring about (or to prevent) changes of the normative status of their recipients.

The notion of normative power deserves further discussion here, because constitutionalism does not only entail normative powers. It also entails practical powers that bring about real-life changes that do not necessarily change the recipient’s normative status. The relation between normative power and practical power in constitutionalism underpins the relation between governmental actions and its legitimacy. And, as the next section shall argue, it is critical to this paper’s thesis that public health should be a normative principle of constitutionalism, instead of a sector of public policy.

Power, in general, entails the ability to bring or prevent changes (Green, 1998; MacCormick, 2007; Raz, 2022). Normative power, as above addressed, is power to make or prevent changes of one’s normative status. The constitution’s conferral of power onto the legislative institution changes (or, in this case, creates) the normative status of the institution as it now acquires the power to legislate. It should be noted, however, that not all uses of normative power are legitimate. The legislative institution of a state has the normative power to make laws. But it would hardly be legitimate if this institution made a law to prosecute people on the basis of, say, their preference for superhero movies. Meanwhile, not all powers of institutions and institutional agents that constitute the state are normative. Institutions and institutional agents that constitute the state also possess the ability to use political powers that are practical. Political powers are practical power in the sense that they bring or prevent real-life changes without changing the normative status of their recipients. Klaassen v. Indiana University is a clear example. In Klaassen v. Indiana University, eight students filed a lawsuit against the university’s vaccination mandate, which requires students to be vaccinated unless they are exempt for medical or religious reasons. The plaintiffs’ contention is that this mandate violates the Due Process Clause of the U.S. Constitution’s Fourteenth Amendment. On 2 August 2021, the federal court of appeals rejected students’ constitutional challenge on whether the university’s vaccine mandate is constitutional.

Both the district and the federal court’s opinions argue that the institutional power of a public university to mandate the COVID-19 vaccine does not alter the normative status of students in relation to the constitution. The district court suggests that the university is an institution whose power can be legitimately used in the ‘best interests of the state’, and that it therefore has the power to design rules to protect its academic community (Klaassen v. Indiana University, 2021a: 7–8). This sets the normative condition for the university’s use of power, and its COVID-19 vaccine mandate is valid and legitimate in this regard. The students retain the constitutional liberty to apply for religious exemption, medical deferral or other choices not to be vaccinated. The federal court makes it more explicit. It shows that the university’s vaccine mandate is a use of its institutional power, and that this does not change students’ normative status to practice constitutional liberty and to receive education as (i) students can apply for religious exemption or (ii) students can have alternative choices such as applying for medical deferral, taking a semester off or attending a different university that does not have a vaccine mandate (Klaassen v. Indiana University, 2021b: 2–3). Both courts further note that the university’s power to require students wearing mask if they received religious exemption is also a use of institutional power that does not change the students’ constitutional normative status (Klaassen v. Indiana University, 2021a: 84–86, 2021b: 2–3). These are political powers (or, if one prefers, biopower) in the sense that these are powers that administrate and organize individuals in a given community. They are practical but not normative as they bring real-life changes without changing recipients’ normative status. Students are required to wear masks and be tested for COVID-19 if they claimed religious or medical exception. Both alter one’s daily living experiences. Students who get themselves vaccinated, on the contrary, might experience fever and symptoms of illness after vaccine injection; a change of living experience caused by the institutional power.

Two points can be made from this distinction between normative and political power. First, in constitutionalism, political power is created or authorized by normative power. This means that the validity and the legitimate use of an institution’s (or institutional agent’s) political power is founded in the normative condition that sets up the institution’s normative power to act. The normative power (not always the basic normative power like that of the constitution) that creates new normative and political powers in an institution or institutional agent more often than not sets the condition according to which the newly created powers are valid and legitimate when creating them. This is the nature of chained powers. What makes the originating power valid and legitimate ‘will impose some restrictions on the scope of valid chained powers’ (Raz, 2022: 165). These restrictions are not comprehensive. The newly created chained power always has relative autonomy to act that goes beyond what conditioned the originating power. But it does mean that the use of chained power is conditional. It is required to meet certain standards that conditioned its originating power because it is so created or authorized. This is the normative condition of chained power. It means that whether the use of chained power conforms with its condition is a gray area which recipients of power can complain, demand justifications and contest legitimacy.

The second point is that the use of political power is teleological, as it is to advance the value of normative power that creates or authorizes it. This is based on the idea that normative power includes value (Owens, 2012; Raz, 2022). Because normative power is about changing, or preventing changes to, the recipient’s normative status, the validity of its uses includes pursuing the value it aims at (and therefore bringing changes to the present status) or preserving the value it upholds (and therefore preventing changes to the present status). In other words, the normative condition of normative power necessarily includes the validity of the value it upholds (Owens, 2012: 4–5). In constitutionalism, chained powers are created as extensions and expansions of power at the disposal of institutions to pursue or to preserve the values upheld by its ultimate originating power, namely the normative power of the constitution. The values in the normative condition of the basic, originating power therefore impose restrictions on the chained powers, normative and political, as they are created or authorized in order to pursue or to preserve the constitutional values. Political power, in particular, is the normative consequence of the creation or authorization of institutional power to bring about, or to prevent, changes to better meet the values without changing one’s normative status.

These two points culminate in the normative principles of constitutionalism. The point that normative power restricts political power in constitutionalism leads to what public law scholars called ‘negative constitutionalism’ in the sense that constitution sets restrictions and limits on the scope of the validity and legitimate uses of institutional political power. The point that political power is teleological as its uses have a clear purpose—to pursue or to preserve the values of the constitution—leads to the so-called ‘positive constitutionalism’. The idea of positive constitutionalism is that the constitution is not simply about restricting institutional political power. Rather, the constitution creates or authorizes institutional political power to advance and materialize constitutional values. These are not mutually exclusive understandings. Positive constitutionalism includes the principles of negative constitutionalism. Political power according to positive constitutionalism is conditioned and limited by its instrumental and teleological character. The validity and legitimate uses of political power can only be justified in terms of the pursuit or the preservation of values which the normative power that creates or authorizes it upholds. Positive constitutionalism is positive in the sense that its limits and restrictions of political power are based on its recognition of the relative but necessary autonomy of institutional political power to make or prevent real-life changes to advance or to preserve the constitutional values.

Public Health as a Principle of Constitutionalism

There are many principles of positive constitutionalism. Principles that direct how political power can be defined and used to pursue or preserve constitutional values include the rule of law, representative institutions with democratic electoral procedure, civil society and so on (Barber, 2018). This section argues why public health should be one of the foundational principles of positive constitutionalism. This means that public health should be understood as a normative, constitutional value which the normative power of the constitution upholds and which the institutional political power of the government ought to pursue.

The principles of constitutionalism have two types. The principles of negative and positive constitutionalism, as discussed at the end of the previous section, are derivative principles in the sense that these are principles derived from the relation between normative and political power of institutions and institutional agents. Constitutionalism has further principles that are not derivative but are value laden. Take, for example, the principle of the rule of law. The principle of the rule of law defines features according to which a legal order should function if it is to function well (Barber, 2018: 85–119). This includes requiring institutions and institutional agents with legal power to use this power to pursue or preserve the end which the legal power purports to affect. That means legal power should make or prevent changes of recipients’ normative status to achieve its ends. It also demands that the uses of legal power to make or prevent such changes are constrained by the scope of legal sphere; that is, legal actions should not perform extra-legally ‘without reference to legal rules, principles, and procedures’ (Waldron, 2015: 57). The principle of the rule of law thus makes normative demands on the use of legal power. These demands include features that are closely related to elements that are necessary for legal order to exist. For example, one needs a definition of legality to determine when legal power is used extra-legally. They also include features that are about the flourishing of legal order. For example, law should be accessible, clear, stable and with procedural due process so that those ruled by it will not be subjected to arbitrary rules of legal officials (Waldron, 2008). Underlying these demands is the value which the principle of the rule of law upholds. That is, it is desirable that the political state has a good legal order, and that, therefore, institutions and institutional agents that constitute the state need to meet the principle’s normative demand when using their respective legal power.

If public health is a principle of constitutionalism, what value does it uphold and what normative demands does it make? This can be inferred from the practices of public health institutions and institutional agents in most modern states. The U.S. Department of Health and Human Services states that its mission ‘is to enhance the health and well-being of all Americans, by providing for effective health and human services and by fostering sound, sustained advances in the sciences underlying medicine, public health, and social services’ (HHS, 2024). The UK Department of Health and Social Care similarly says it ‘support[s] ministers in leading the nation’s health and social care to help people live more independent, healthier lives for longer’ (DHSC, 2024). Compared to the U.S. HHS, the UK DHSC’s statement is more institutional in the sense that it cautiously positions its functions in terms of providing institutional support to institutional agents (ministers). This does not undermine the normative condition defining its institutional existence. The existence of both the HHS and the DHSC is to promote healthier lives for their citizens.

While these statements are made to position specific institution, they provide glimpses into what values public health as a principle of constitutionalism will pursue. These values have much to do with the normative dimension of public health, as discussed in the section on Public Health as a Normative Principle. The Introduction section argues that public health is a conceptual nexus that includes 3-fold meaning of public (public administration, community and the performance of collaborative actions) and 2-fold understanding of health (the clinical and the functional) centering on the values of health. Putting this conception in the context of constitutionalism, it becomes clear as to what the paper means by ‘public health as a principle of constitutionalism’:

Public health serves as a normative principle requiring governmental institutions to use institutional normative and political power (the first meaning of “public” in public health) to advance the value of health (in both clinical and functional senses) of the community (the second meaning of “public” in public health). It also demands that, to successfully do so, governmental institutions ought to work closely with private, health institutions and health agents (the third meaning of “public” in public health) to facilitate an effective system of national health. Its normative values suggest that it is essential and desirable that members of the modern state should enjoy health.

There is one crucial distinction to be made. So far, the paper has argued that public health should be taken as a principle of constitutionalism. That is, public health is not only a normative principle, but a principle making normative demands on the state. This needs to be carefully distinguished from the point that public health is a constitutional right. Although public health as a constitutional principle is closely related to the establishment of the constitutional right to health, the latter only represents one way—though no doubt a significant way—in which the constitutional principle of public health can be realized. Principles and rights are closely related but different normative entities. One helpful way to look at this is to treat principles as ‘propositions that describe rights’ (Dworkin, 1978: 90). This is a famous distinction put forward by Ronald Dworkin that is intended to make the point for judicial arguments based on general socio-moral principles that entail certain rights. It is to be used further to distinguish judicial arguments based on principles as vindications of rights and those based on policies as promotions of perceived collective goals.

The paper’s distinction between principles and rights has nuance difference from that of Dworkin’s. But while the paper lacks the space for further elaboration, it suffices for the present purpose to suggest that, in terms of the concept of constitutionalism analyzed in the previous section, an adapted formulation of the principles-rights distinction would be as follows:

Constitutional principles, like general principles, entail propositions of general rights. They are normative principles as they make demand on the state to realize the general rights prescribed in them. Constitutional rights, in turn, are positive institutions established by the state to meet the demands made by the principles of constitutionalism.

Public health, as a principle of constitutionalism, prescribes a few general rights. To list a few, there is the general right that one should be able to live a healthy life, that one should live in an environment made by the state and its cooperation with private sectors to enjoy clinical health, and that one should be able to have a healthy physical condition and mental status in a healthy environment that allows one to pursue their vital goals. The principle of constitutionalism makes demands on the state to realize these general rights. Constitutional rights are, in turn, institutions established by the state to meet these demands. The state’s positive establishment of the constitutional right to health is a straightforward way for it to meet the demands of the constitutional principle of public health.

But two points are to be observed. First, while constitutional right to health is straightforward, it is far from adequate to fully meet the demands made by the constitutional principle of public health. In order to do so, the state is constantly required to do more than simply establishing a constitutional right to health. The state’s efforts to diminish widening socio-economic inequality, though directly relevant to the issue of health disparities, are not always carried out exclusively on the basis of the constitutional right to health. The state at least needs another constitutional right, namely the constitutional right to equality (Daniels, 2007). So while diminishing health disparities is a normative demand made by the constitutional principle of public health, having the constitutional right to health itself is inadequate in meeting the demand. This also shows that, as a constitutional principle, the realization of public health’s demands oftentimes includes considerations of other constitutional rights. The principle of public health is not by nature or character mutually exclusive with other constitutional rights.

Second, a state can be attempting to realize the demands made by the constitutional principles of public health without explicitly establishing the constitutional right to health.³ As Yamin et al., (2024) recently shows, there are 54 member states in the WHO without explicit constitutional right to health, but these member states, like Argentina, nevertheless are able to establish legal protections and access to health for their citizens via other institutional apparatus. Similarly, Elizabeth Leonard’s (2010) work on the U.S. constitutionalism and public health has shown that, while the U.S. federal constitution lacks direct textual reference to the state’s duty to public health, each state in the U.S. nevertheless manages to institutionalize the right to health on a state constitutional level. Cases like these not only illustrate the gap between recognizing public health as a normative principle demanding the state’s actions and the constitutional right to health. They further reveal the fact that in order for the demands made by the constitutional principle to be met, one requires more institutional efforts that are themselves the manifestation of chained normative power and political power as analyzed in the previous section. The paper’s aim is precisely to provide a normative, theoretical framework for explaining this phenomenon.

Finally, a useful comparison can be made between this paper’s argument for the constitutional principle of public health and the well-established constitutional principle of the rule of law. The rule of law is a constitutional principle that is essential to the modern constitutional state. In terms of its normative contents, the principle demands that the law made by the state ought to have the following qualities: laws ought to be general, accessible, transparent and stable; law ought not to be retrospective; and law ought to be practiced with procedural due process. But for these demands to be met, and for the principle to be put into practice, it requires the establishment of a set of constitutional rights, not merely a constitutional right to the rule of law. A singular constitutional right to equal protection does not adequately satisfy the constitutional principle’s normative demands. One needs, say, the right to legal representation and a constitutionally established institutional framework of judicial independence to meet those demands. The same can be said about the constitutional principle of public health. In fact, it is the ambition of this paper and its broader project to argue for public health, just like the rule of law, is an indispensable, foundational principle of the modern state.⁴ There is one more similarity. Just as the rule of law, as a constitutional principle of the modern state, does not mean that issues relating to the rule of law do not exist beyond the state, the argument that public health is a constitutional principle by no means imply that public health issues only exist with the political state.⁵ This argument does lead to the point that the state has a duty to the more general right to health, the content and the meaning of which deserves a different occasion for discussion.

It should also be noted that these general rights are not always compatible. For example, one might well damage one’s mental and physical health status in the pursuit of one’s well-being. And likewise, the constitutional rights established by the state to meet the demands made by the principle of public health can well be in conflicts with each other. What will then be required is a context-sensitive analysis of the case in question. This raises the issue of the shortcomings of this paper that will be further addressed in the conclusion.

Conclusion

This paper argues that public health should be taken as a principle of constitutionalism. It is true that most public health institutions recognize the values of the principle of public health. It is equally true that, in practice, the principle of public health is reduced to self-defining missions of public health institutions that distinguish them from other institutional duties of different governmental institutional branches. The principle of public health has not been recognized as a normative constitutional principle that makes normative demands on governmental institutional apparatus. This results in the struggle of public health institutions to compete over budget allocation and policy priority that seriously hamper their capacity to act. The APHA lists ‘increase and protect funding for vital public health agencies and programs’ on top of its 2024 priorities is not incidental (APHA, 2024). This paper, by carefully analyzing the normativity of public health and the concept and principles of constitutionalism, promotes the idea that public health should be seen as a normative principle demanding institutions and institutional agents to act in order to materialize its values.

As a constitutional principle, public health demands the state to prioritize making laws and policies, and proactively cooperating with private sectors, to create a supportive environment in which individuals can enjoy their clinical health and pursue their functional health. The paper thus provides a forceful vindication for public health. It is not enough to say that public health is vital, therefore the state should prioritize its public health policies over other public policies. It argues that public health is foundational to the existence of the modern state, and that the state should recognize and consequently revisit its policies’ potential impacts on damaging public health.

This is particularly so given that many factors that damage public health have proven to be less intuitively connected to health professionals. Recent appeals on the state’s duty to environmental sustainability as increasingly extreme warm weather started to impact the incidence of heat strokes and other heat-related illness is but one case for this (e.g. Deering and Upshur, 2025). The threat posted on public health by climate change requires proactive and timely reactions from the political state. In addition to the existing scholarships from the perspective of international law, human rights studies and environmental humanities (Schmalenbach, 2022; Guiry, 2024), the paper presents a comprehensive, normative argument that is able to explain why the state has a duty to sustainability: insofar as the environment in which one ought to enjoy clinical and functional health is threatened, the state is demanded by the constitutional principle of public health to take on the threats.

There is a pragmatic urgency in this paper’s argument. Public health emergencies experienced in the past decade have increasingly seen the need for institutional actions that go beyond the traditionally identified public health institutions. For example, the increasing threats posed on individual and communal health by climate change and the loss of biodiversity require multi-institutional, even multi-national, actions that simply cannot be effectively carried out by public health institutions alone (Abbasi et al., 2024). Treating public health as a principle of constitutionalism is to recognize that governmental institutions and institutional agents other than the traditionally identified public health institutions also have the duty to promote and advance its values. At present, such demands are not being properly seen as normative. In fact, there is no such demands. At most, they are presented in the form of advocacy to governmental officials by public health institutions and professionals. But the increasing threats to individual and communal health presses the need to treat public health as a principle normatively demanding governmental institutions (other than the traditionally identified public health institutions) to be proactive and make effective legislation and policy to promote and preserve the values of public health. Public health should not be reduced to just a part of public policy, as actions of institutions and institutional agents. It is a normative principle directing and demanding those actions.

The paper, however, has a couple of shortcomings that require further developments. The first is the constitutional demands on international cooperation. At a time when factors threatening public health such as environmental crises are beyond the capacity of the efforts of any single state means that public health as a normative principle, when demanding the state to take on the crises proactively, simultaneously demands the state to adopt more proactive international cooperation. But this will give rise to questions like: do the states have a duty to the international health community, and how does it bind the state to act? This requires more studies on international law and the state’s duty to the right to health that is beyond the scope of the present paper.

The second is the need of empirical studies when the constitutional principle of public health collides with other constitutional principles and constitutional rights. The constitutional principle of public health provides an argument that the state should prioritize public health. Yet it is very likely that the state’s laws and policies to prioritize public health can meet dissents and even disobedience from its local communities (like vaccine hesitancy). Sometimes it might even meet with disobedience on the grounds of other constitutional principles and rights, such as liberty and privacy. Such cases touch on the boundary of legitimacy of governmental interventions on the ground of the principle of public health that can only be properly addressed with case analysis. At present, the paper can only suggest that in most cases of the sort, the issue of legitimacy tends to arise with how policies are made and carried out. It does not challenge the principle of public health itself. If anything, taking public health as a constitutional principle actually crystalizes the scope in which the government can act legitimately in terms of public health intervention. According to the principle, political power should take priority to promote and preserve a healthy environment for individuals to enjoy clinical and functional health. It cannot, however, extend to help individuals determine the goals they aim to pursue with their health.

Funding

This research was funded by the National Science and Technology Council, Taiwan, under the project: Political Emotions and Public Health Ethics in Pandemic Politics (Project ID: 113-2628-H-001-004-).

Conflict of Interest

The author declares that there is no conflict of interest related to this research.