Part I — Who counts, and what they are owed

5. When There Is Genuinely Not Enough

An entitlement stays in force when usable supply is too small to meet every claim. The constitution therefore needs a way to allocate what is available while the unmet part stays owed to the person who goes without.

The chapter follows one indivisible unit of an essential power supply and two protected claims. One person is waiting for it; another would lose continuing provision if it were reassigned. The recorded evidence supports different priorities. A reviewed decision can meet every requirement, and the person who goes without keeps a claim to provision and repair. The case records a shortage and comparative evidence.

The ground for using this route matters. The one admissible ground is a physical shortage, shown for this resource and these people. A budget choice, exclusion by price, administrative delay, artificial withholding, monopoly, provider failure and refusal to procure are named as false scarcity, and a finding that any of them lies behind a claimed shortage withholds the scarcity finding it targets. Suppose a separate finding shows that the claimed shortage arose from a refusal to procure. The scarcity finding, allocation and shortfall conclusions then cease to follow. The person's floor entitlement remains.

What has to be true before the word may be used

The finding requires authenticated, contestable evidence specific to this resource and these people. Alternatives, reserves, substitution, coordination, replenishment and mutual assistance must already have been considered. There must be public reasons in a usable form, a challenge, an independent reviewer separate from the body managing the shortage, fresh evidence for any reassessment, and an end. The finding confers authority for its own term alone: when that authority lapses, authority to administer the shortage stops following, while the floor and continuity obligations remain.

What a finding lets anybody do

Authority to allocate comes from a finding in force and ends with it. An allocation must stay within the finding's resource, population and scope. Every constitutional minimum is preserved wherever usable supply permits, and whatever a reduced ration leaves unmet is recorded as a shortfall; the minimum itself keeps its meaning. An effective, usable equal share takes priority; a division into fragments too small to use fails that condition. Any further priority must rest on urgency, accessibility, imminent irreversible harm, harm from interrupted provision, and benefit from the resource assessed after accommodation. The permitted grounds form a closed list. Each concerns a claim on this resource rather than a general ranking of people.

One unit, two protected claims

In this case, sharing the unit would leave both claims without usable provision. The comparison concerns this allocation period:

The manager's stated decision is to continue the unit for this period. Its reasons put the irreversible harm of interruption and continuity ahead of the waiting claim's earlier need and larger likely benefit. The allocation names both claims, the chosen use, the comparison and the rejected alternative. The comparison rests on three attesters separate from the manager: a source, an independent evidence attester and an independent reviewer must each record the same claims, grounds and outcome, and each must record that every compared claimant's submitted evidence was considered before the comparison. If the three records disagree, the allocation fails. The attesters and the manager must all be outside the claims the allocation compares, as must anyone attesting a finding that it is defective; a claimant's own route is the challenge. The manager owes publication of those comparative reasons. Independent review, accessible challenge and an end remain conditions of its authority.

The rules permit that properly made decision. The weighing and the choice of recipient are the manager's, made on the record and open to challenge; the rules check that each required element is present. Continuity counts here as the harm interruption would cause, and mere possession lies outside the permitted grounds. Urgency and likely benefit each weigh against the other permitted grounds rather than overriding them automatically.

Suppose instead that a second comparison finds the claims materially equal after accommodation. Sharing would again leave both claims without usable provision, so a disclosed lottery is a permitted method. Whichever recipient the draw is recorded as choosing, the allocation meets the rules; the draw itself is made by people, and its result reaches the rules as a record. Using that lottery on the unequal comparison fails the rules. If a usable equal share is available, that share takes priority over either selective allocation or a lottery. Material equality has to be found in the comparison itself; a gap in the evidence leaves it unshown.

What may never decide it

The forbidden priority keys are explicit: wealth, contribution, recognition, a conviction, family status, a stereotype about disability, expected productivity, social usefulness, a general figure for how long someone might live, political favour, nationality, citizenship, immigration status, documentation, and how somebody arrived. The list is closed, like the list of permitted grounds. An allocation using any of these keys fails under the rules. Among claims that are materially equal, and only there, a disclosed rotation or lottery decides.

What is still owed afterwards

Whatever remains unmet is a shortfall requiring repair, continuity and reassessment. It is recorded as failure, a finding about the provision alone: the entitlement stands in full, and nothing adverse about the claimant follows from it. A shortage found for one resource or one population licenses nothing about another.

The waiting claim is named in its own shortfall record. Its essential provision for this period remains unmet, and the responsible manager owes continuity, repair and reassessment. The cost of the decision falls on the waiting person, whose earlier need and larger likely benefit gave way for this period. Both claimants keep personhood, the debt of care and the adult ballot; a credibility finding and confinement stay absent for both. The allocation's permission reaches only the allocation it names.

When somebody asks and nobody answers

A finding remains open to challenge. A request to review the finding, the allocation or the recorded shortfall places a duty on the responding office named in the record at once, before anyone grants the request. The request creates that review duty alone; record access, authority over the resource and any finding either way lie outside it.

If that office stays silent, the silence decides nothing by itself. The duty moves only on a positive, independently certified finding that the office failed to respond, with authenticated notice and a real opportunity to act already in the record; then the duty falls to the predeclared independent alternate. Silence is read as silence: it grants nothing and counts nothing against the person who asked.

The waiting person challenges the comparative decision. That request creates the responding office's review duty while the allocation still meets the rules, and evidence the claimant submits with it must be weighed in that review. A further finding, made independently, that the comparison or reasons are unsupported withdraws authority for that allocation. The genuine scarcity finding and the waiting claim's shortfall duties remain, and the defect records nothing adverse about either claimant. The responding office owes review and correction of the unsupported use; the manager owes publication of the correction.

The false-scarcity case changes a different premise. There, a properly made finding shows that the supposed shortage arose from refusal to procure. The finding's scarcity authority and the allocation under it then fail; the scarcity shortfall record loses that basis too. Duties to treat the refusal as failure and restore or procure what was withheld follow. Both people's floors remain. A refused procurement leaves an official with ordinary responsibility, owed in full, and without permission to ration.

The conflicts that are not about supply

Other conflicts have distinct grounds and review: property against the floor and the commons, expression against evidenced harm, privacy against public accountability, local choice against portability, present claims against future conditions, and emergency action against the protections that stay in force in every emergency. Each requires the applicable constitutional limit and a reviewable resolution, and the reviewer resolves it under that limit rather than a priority of the reviewer's own.

The child with nobody

The scarcity sequence leaves Nell's personhood and food debt intact, without confinement. Whether Nell belonged to the affected population stays open: the one-line record holds nothing that places the child in it or outside it.

Family status, documentation, nationality, citizenship, immigration status and manner of arrival are forbidden priority keys. An allocation that used any of them to place Nell's claim behind another would fail under the rules, so the entries the record lacks weigh nothing against the child there.

What this cannot settle

The rules check that a scarcity finding has its required evidence and rests on the permitted ground. Stock counts and supply forecasts stay outside them and arrive only as attested evidence, so the physical fact of a shortage rests on that evidence alone. In the same way the rules check that a comparison names its claims, grounds, reasons and rejected alternative, and leave to review and challenge whether it weighed them well.

Whether a manager stops administering when authority lapses, whether a unit is reassigned after a defect, and whether a shortfall is repaired or withheld supply procured belong to the second book, with the inventories, reserves, production, capacity and queues they involve.

The constitutional question continues after the finding: who must answer for the unmet claim, maintain continuity and pursue remedy? The next chapter follows those public duties.

Run it: the companion runs this chapter's cases on your own device, at dhilipsiva.dev/rights-nobody-has-to-earn/cases.

Argument: A shortage must be proved, and need decides it

The companion states these rules as Article 5.

I require a shortage to be proved for one resource and one population because scarcity is the easiest excuse a government has. Amartya Sen's study of the 1943 Bengal famine rejected the explanation that the food supply had fallen: starvation concerned people's ability to command food through the legal means open to them.^[1] His "entitlement" describes that command rather than a right, but the lesson holds, and Jean Drèze and Sen treat famine prevention as a problem of protecting entitlements through public action.^[2] A price, a budget or a refusal standing between people and existing goods is that kind of failure, so it defeats a scarcity finding and the ration it would justify. When the shortage is real, I record what stays unmet as failure: a minimum cut to fit the supply stops being a minimum, while a debt keeps a claim to repair. I let need decide because a claim on an essential is a person's claim as such; ranking by productivity or usefulness would make the floor something earned. Where reasons to choose run out, as between materially equal claims, a disclosed lottery gives each an equal chance, the use Jon Elster defends.^[3]

The strongest alternative allocates by expected benefit, counting life-years and instrumental value. Govind Persad, Alan Wertheimer and Ezekiel Emanuel proposed a "complete lives system" for very scarce medical interventions, combining youngest-first, prognosis in life-years saved, saving the most lives, a lottery and instrumental value, with priority by age its distinctive feature.^[4] During Covid-19, Emanuel and colleagues ranked maximising benefits first, saving the most lives with length of life a subordinate aim, gave front-line health workers priority, and preferred a lottery among similar prognoses to first-come, first-served.^[5] Its best argument is that more years saved is a real good, and refusing to count them has victims.

I accept that cost. The claim that would gain more from this resource can still win, but age is absent from the permitted grounds and a general figure for how long someone might live is a forbidden key. Some allocations will save fewer years than a benefit-maximising rule, and the loss falls on claimants whose longer expected lives would have won. The alternative's cost falls on older people and on those whose disability or illness shortens their expected years for reasons unrelated to the resource. In 2020 disability advocates complained that Alabama's ventilator-triage criteria allowed denial for intellectual disability; the federal civil-rights office, whose review also covered age, closed it without a finding of liability once the state agreed to remove the criteria.^[6] Proof also costs time: until a finding is made, an orderly ration waits and claimants rely on the floor's ordinary duties.

I would reconsider if the permitted grounds proved to favour the same groups a lifespan figure would. I would reconsider the proof requirement if allocation repeatedly came too late because the finding took longer than the shortage. And I would reconsider the refusal to count years if a recurring shortage showed that a prognosis confined to this resource, free of age and disability, would save many lives these grounds lose.