Michelle Cottle makes this bizarre comment about seat belt laws:
Yes. I'm well aware of the stats showing that mandatory seat belt laws save lives. I myself feel more secure wearing a seat belt--and did even before I bought a car with one of those migraine-inducing systems that beeps at me every single time I briefly unbuckle my belt at a stoplight to reach back and pick up whatever toy/book/juicebox my child has dropped on the floor. But if I chose not to wear a seat belt, it shouldn't be anyone's business but my own.I know it's not a particularly important issue in the grand scheme of things. But seat belt laws really do save lives. These aren't pretend lives. They're real, tangible ones. Children who aren't orphaned. Parents who don't lose their teenage kids. Friends who get to keep hanging out.
Seat belt laws are a classic example of government overreach. Unlike most other road rules I can think of, failure to buckle up does not impact the safety of anyone other than the adult making the decision. My wearing a seat belt does not make me a better driver, nor does it decrease the odds of injury to others involved in a crash with me.
I don't think it's the job of the government to regulate every element of life. But I also think it's a desperately unpleasant perspective on the role of the state to think that it has no role to play in fostering behavior. That it's purely a regulatory beast that exists to take taxes and provide services.
Clearly, there isn't an a prior case for state intervention in all walks of life. But...given that seat belt laws impose zero meaningful harm on society and they provide a very tangible benefit, I don't see how this is a particularly controversial case.
But in a broader sense, phrases like "shouldn't be anyone's business but my own" and "government overreach" suggest to me that going down the privacy route of rights protection may carry with it a lot of unfortunate attitudes. The right to privacy obviously exists (even Sarah Palin agrees!) and it's important. But the problem with privacy is that it's purely about toleration. A right to abortion founded in privacy accepts the premise that abortion is bad but says that the state simply isn't allowed to regulate it - as much as it might rightly wish to. Lawrence v. Texas was obviously great, but is troubling to the extent that it implies that same sex acts may well be despicable - but are simply beyond the reach of the state to prohibit.
The effect of the law doesn't change much, but the attitude toward it, it's durability in practice, and its interpretive effect does change. There is a world of difference between a right to abortion based in privacy and one based in equal protection. In the first case, your right is to non-interference by the state in this decision. In the second, your right is to control over your own reproductive status and identity. In the case of Lawrence, there's a difference between saying that states aren't allowed to regulate the practice and saying that there is a basic right to sexual expression. The point being that we ought to care about living in a society where people are affirmatively valued as equal citizens regardless of their sexual orientation or gender, rather than one where difference is tolerated (grudgingly).
So I'm definitely not against privacy. It's an important foundational right. But I am troubled by the extent to which it's treated as the sufficient way of regarding the reach of the state. Where seat belt laws are implicitly equated with abortion (at least to the extent that the role imagined for the state is one principally one of non-interference). As if the only relevant question is whether it's your personal decision - rather than the real issue, which is the sort of society we want to live in.
It's legitimate to regulate seat belt habits because it saves lives, it reduces health care costs, and reduces insurance costs (all public goods), and because there is clearly no meaningful right to drive a car while not wearing a seatbelt.
5 comments:
This is well-written, yet I'm troubled by it. I'm pro-seatbelt laws if it's motivated by externalities, but where there's no outside harm.... I think it's much more unpleasant to imagine the state fostering proper behavior. Are you really saying you think that the government should protect my friends' interests in my health by denying my own control over my body - even when my decision doesn't harm anyone beyond their emotional attachment to me?
Do you think the state should be able to criminalize suicide? Require people to brush their teeth?
It's not about whether there's a meaningful right to drive a car without seatbelts. It's about whether the government has a meaningful power to decide seatbelts even when there's no externality involved. It's not about individual rights. It's about whether government has rights - and here I'm terrified of that prospect.
Privacy gets to the issue - it does NOT accept the premise that abortion is bad, it is NOT about toleration, and it is NOT solely negative. Instead, it's a challenge to the state to find a right that supercedes the inherent rights. To say the Constitution creates a penumbra of rights is to move toward the assumption that individuals START with rights and government only has enumerated powers, rather than vice-versa. It says that the government does not have the power - or right - to think about what is despicable or not unless it has a compelling state interest. It is a recognition that individuals should define the meaning of their lives - including what life itself means.
I have no idea how equal protection gets there. Under equal protection, there is no underlying right to define life on your own individual terms. All that matters is that the way the state allows you to define life is the same as the way the state allows other classes of people to define life. If the state takes away something like the right to die from EVERYONE, then equal protection completely misses the boat. It focuses on state application of power, but not whether states have powers to begin with. It treats governance as a matter of fair administration instead of the right to define one's own existence.
Another example - EP means the state could ban all sex, privacy means the state can't. EP means the state can ban birth control for everyone, privacy means the state can't. EP means the state can ban adoption as long as it applies to everyone, privacy means the state can't. Maybe I'm totally missing the boat, but I don't get how EP can be better than privacy, or how it gets to the "basic right of sexual expression" instead of the "equal treatment of sexual expression." EP analysis erases the focus and importance of individual dignity compared to privacy.
1. Public highways and roads are very different than your bathoom.
2. There is an externality. The insurance costs go up when people don't wear their seatbelts. So do emergency room costs.
3. Driving is a privilege, not a right. You don't want to wear a seatbelt? Don't drive.
4. Chances of the state banning all sex = 0.0%
5. Obviously privacy matters. I don't think it should be abandoned. But privacy alone is insufficient and very much IS about tolerance. My problem is with the way that people treat privacy as some kind of trump card - it's a Trojan Horse for the kind of libertarianism that claims to be socially liberal but turns out to be tipped massively in favor of the already advantaged.
6. I agree that dignity is a crucial principle for making law. Seatbelt laws have no effect on dignity. Banning abortion does. Doesn't have anything to do with privacy.
I agree there's an externality and THATS when law is ok.
But you suggest way more than that. We have a fundamentally different view of government. I believe that the relevant question is NEVER whether an individual has a right, but instead whether the government has a power. I don't think that I need a right in order to engage in a certain behavior.
Driving is a privilege because externalities justify regulation. When I read your post, I think you're saying much more - that the starting point is whether there is an individual right worth protecting.
But your framework denies my ability to calculate the value of my activity, even when it doesn't harm others. THAT is the role of privacy. It's not about tolernace- it's a denial of the governments power to decide the value of my activities when it doesn't harm anyone. You think not wearing seatbelts is unimportant - fine. But you shouldn't be able to impose that value judgment on me unless there's an externality.
I know you think my examples are low on probability, but the difference in constitutional analysis matters a lot. I'll supplement with two examples:
Earlier, lower courts would dismiss concerns about equal access to education for women because they thought no women would want higher education. In their mind, there was sufficient equal protection because the concerned lost rights of women seemed trivial in both importance and probability. They analyzed history, etc to see if there was a legally recognized right to higher education, instead of a privilege. This focus on individual rights allowed the government to ignore whether IT had the power to create inequitable laws. Equal prtection only ecame a powerful tool when it abandoned the notion that it protects privileges, instead of restritcing unfair GOVERNMENT exercise of power.
Second, habeus corpus. The constitution doesn't sat individuals have habeus rights. Your position - which again is a conservative constitutional position- would only restrict government denial of habeus rights when they've been already granted by statute. That would therefore exclude noncitizens, who have not had the privilege of habeus. My framework says that the habeus clause us a restriction on gocernmet power in generaal - not just a protection of individual rights. Therefore it can't deny habeus to anyone, bc the denial is not within ITS powers.
You'll probably disagree with the anaologies by saying, "ok, but there's a gulf of difference here in what's important." that proves my arg. we should be MoST concerned when only a small minority thinks a certain activity - which we're assuming harms no one- is valuable. It's about gettig government out of the business of deciding the value of life choices when they don't harm anyone. You think that's silly, I think your ability to disagree is the whole point.
Again, I know that where there's externaulities, things get way more complicated. But, here you seem to suggest that the starting point is for the individual to have to justify her lifestyle or behavioral choice, instead of first whether that choice causes a harm to society. That's the difference between a fundamentally conservative position and a liberal one.
Your argument is that it's not possible for me to make an equal protection claim about a woman's right to education?
Really?
If people failed to do so in the past, then they did so wrongly. There is and ought to be a right to education, and it should be an equally protected right.
I'm talking about positive rights. The right to welfare, the right to free decision, etc. This creates a possibility of the government 'intruding' of course, but unlike a libertarian I don't see anything fundamentally bad about government restrictions.
The role of the government ought to be both protection of rights to autonomy but it should ALSO be the promotion of the public good. My point is that privacy when treated as a trump card inculcates an idea that only the former matters. That preserves a vein of justice which is fundamentally conservative in its capacity to protect what already is. I desire a form of justice that produces fairness writ large.
Once again, I'm all in favor of privacy, but only as a MEANS to the public good, not as a public good in and of itself.
Ban all sex - check out military law. They worded sexual restrictions this way to successfully avoid EP claims.
Bathroom and highway aren't all that different for people in mobile homes, back seats of cars, etc.
Seatbelts laws don't lower premiums, seatbelts do. It's the insurance contract that lowers the premium, bc no seatbelt means no first party coverage. Laws actually raise premiums for third party coverage because people drive more recklessly with them.
Read bowers again, and look at how the court evaluates the "right" to sodomy. It's similar to the style of your args - little chance the law impacts anyone, and sodomy is t worth protecting. Plus, it didn't view sex as such a private act as you do, since fertility etc was a public interest then. That's why I'm suspicious of reliance on "common sense" to distinguish the constitutional boudnaries between roads and bathrooms. Throw in the Internet, private blogs, etc and the common sense stops working neartly.
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