Essentials of Health Policy and Law 2nd Edition by Joel Teitelbaum,Sara Wilensky

Exercise 5

The "negative constitution" is a concept over which reasonable people can easily disagree. Notwithstanding the "defensive" manner of some of the Constitution's key provisions, there are several arguments in support of more affirmative action on the part of government health and welfare officials than current Supreme Court jurisprudence requires. For example, the dissent in DeShaney argues persuasively that Wisconsin's implementation of a child protection program effectively created a constitutional duty to actually protect children from seemingly obvious danger. As one leading scholar put it, "If an agency represents itself to the public as a defender of health, and citizens justifiably rely on that protection, is government 'responsible' when it knows that a substantial risk exists, fails to inform citizens so they might initiate action, and passively avoids a state response to that risk?" 58(p34) What do you think of this argument? And can you think of others that call into question the soundness of the negative theory of constitutional law?