The Illusion of Legitimacy: Two Assumptions that Corrupt Health Policy Deliberation

Abstract

Public deliberation about health policy in the United States often hinges on two untenable basic assumptions about political legitimacy. The first assumption, common in public debate throughout the United States, is that federal oversight of health care is justified under a federal compact binding all citizens. This assumption is false because the federal compact precludes such oversight. Indeed, the ascendancy of national government (and demise of federalism) over the past 70 years was engineered through the subversion of the federal compact, creating an expansive legitimation gap. The second assumption—that political legitimacy can be established through appeals to expert consensus about fundamental conceptions of justice or human rights—is prevalent among bioethicists. I argue that this assumption is illicit because it hinges on a weak, rationalistic form of majoritarian democracy that conflates public acquiescence with public approval. If the public mission of academic bioethics involves protecting the integrity of public deliberation, then these two basic assumptions should be challenged.