This chapter touches upon the very large topic of how individual rights interact with the police power. In what sense and to what degree do rights contravene state and local exercises of the police power? It is a shibboleth that regulatory power is constrained by rights. But this chapter interrogates these issues in more depth and detail, by discussing how rights claims are framed in connection with the police power and how the government’s assertions of power are circumscribed by particular doctrines and arguments in courts. Further, the chapter considers how the debate over the nature and content of so-called positive rights implicates the police power questions, questions concerning authority and content.

What is the added value – or disvalue – of a “right to effective governance”? That question is phrased in relative terms, and needs a baseline. If the baseline is the United States Constitution, then suffice it to say that the US Constitution is notoriously an eighteenth-century constitution with a few later additions, and that it includes rather few “positive rights” (meaning affirmative rights to government action, as opposed to negative rights to government forbearance). Assuming that the “right to effective governance” is defined in a manner that actually requires the government to do something, and especially if the right is enforceable by private persons, then it would add a great deal to the requirements of the US Constitution. (Whether the result would be a net benefit is a different question.)

Notwithstanding the efforts that have been made to pluralize the concept, constitutionalism continues to be identified closely with, and for many remains synonymous with, classical liberal thought.1 The eighteenth-century notion that constitutionalism is mainly about restraining the Leviathan refuses to die. The continuing strength of the association between constitutionalism and this particular strain of liberalism does not preclude movement to a post-liberal (or post-neoliberal) understanding of constitutionalism. It does suggest, however, that post-liberal constitutionalism is more likely to stick if it assumes at least some of the trappings of old-school liberal constitutionalism. The best way to transform the language of liberal constitutionalism, in other words, is to speak some version of the language of liberal constitutionalism. This is why the idea of a “right to effective government” (hereinafter, REG) suggests itself as an ideal vehicle for this kind of evolutionary development: it appropriates elements of liberal constitutionalism and puts a decidedly post-liberal twist on them. The result looks reassuringly familiar yet is fundamentally different – a wolf in sheep’s clothing.

This chapter is premised on the belief that ethical medical and mental healthcare require a social justice framework, one that takes as its principal stance that healthcare is a human right. Utilizing Ruger’s health capability paradigm, we consider how, both within the United States itself and globally, the engagement of a perspective of positive rights regarding health and healthcare is required when approaching how to best address social disparities and access to medical and mental health treatment. We first consider the health capability paradigm and how it conceptually frames, within a social justice perspective, the right to health and the provision of healthcare for children and youth. We next explore how this model can be considered within a discussion of how dual medical and mental healthcare is currently practiced in a context where patients referred and treated are from lower- to lower-middle-class socioeconomic status communities, and who utilize Medicaid as their primary source of insurance for healthcare. We focus specifically on the provision of forms of medical and mental healthcare that are often the least considered and subsequently unreimbursed by Medicaid, neuropsychological assessment and consultation/liaison for mental health. We next present a case that addresses the application of the health capability paradigm within a child and adolescent psychiatric care setting, and then end with a discussion of how communities, both locally and within the United States, can better engage this model as a means for justifying more equitable and conscientious care for children and adolescents.