Why “not every human problem deserves a law”

In the comments to my previous post on California Gov. Jerry Brown’s veto message, I said:

I cannot subscribe to a theory of government in which all our choices are reduced to a crib sheet and then regulated, penalized, mandated, or outlawed based on the conclusions of government actuaries. Man is not a sprig in an organ vat, as Dostoyevsky said. Law should not be made to replace the need for virtue and social norms and good sense, and if once we’ve come to depend on it for such, we will have already ceased to be a republic.

Creon Critic wonders how this view answers questions about mandating kids’ skiing headgear, motorcycle helmets, seat belt laws, car seat laws, and the like.  That is, “Do all these public health cases (and all my fretting about disease burdens) fall under the freedom you described earlier as ‘freedom to make ill-advised, economically inefficient decisions’?”

Trizzlor similarly asks whether I am really just an empiricist who would join in supporting things like helmet laws and babysitter laws so long as I was satisfied there exists a “significant pattern of abuse.” 

First, let me explain more clearly what I mean by my comment that “man is not a sprig in an organ vat” and thus the government is not mean to control for—by which is meant to regulate, license, fine, credit, prohibit, or mandate—his every inclination toward some preset conception of optimal efficiency.  Conservatism and libertarianism are in agreement in their aversion to government interference in activity that is legitimate even though perhaps improvident.  They part ways when it comes to activity that is illegitimate (though that determination is often deemed to be subjective, a principal reason libertarians reject the distinction).  Thus, conservatives who join libertarians in rejecting motorcycle helmet laws and seat belt laws will also turn around and support the criminalization of recreational narcotics and prostitution. 

Liberalism, on the other hand, embraces the notion of government as an instrument toward efficiency in certain vogue humanitarian objectives—e.g., health, egalitarianism, economic security, social acceptance, etc.  In this way, liberalism is exclusive of both conservatism and libertarianism.  At the same time, however, liberalism rejects the traditional, conservative notions of what constitutes “illegitimate” activity.  Thus, liberalism and libertarianism find common ground on issues like gay marriage, abortion, and the legalization of certain recreational narcotics.

Completing the triangulation of these three political theories, liberalism also shares some common ground with conservatism to the extent illegitimate activities (the regulation of which conservatism favors) are also empirically sub-optimal activities (the regulation of which liberalism favors).  Thus, conservatism and liberalism might reach the same result with respect to issues like polygamy (to conservatives, a threat to traditional marriage; to liberals, a threat to women’s rights), prostitution (to conservatives, a sexual morality issue; to liberals, a sexual health issue), and certain hard drugs (to conservatives, a question of temperance; to liberals, a question of preventing harm to oneself). 

With that rubric in mind, as a conservative I reject helmet laws because they have no normative component.  They are merely a question of prudence.  If someone wants to bear his own risk in not wearing a helmet, I am content to leave him that choice.  My disapproval of that choice is qualitatively no different than were he to invest his life savings in a single stock rather than in a diversified portfolio.  So as to these questions, the conservative’s response is no different than the libertarian’s response.

To questions such as whether kids should be mandated to wear state-approved headgear while skiing, or whether adults should be mandated to wear seat belts while driving, I think the conservative/libertarian response will vary from “no way/never,” to something more like “provided there is a demonstrated need for such a law.”  I fall in the latter camp. 

Consider, however, what a “demonstrated need” for a law would look like.  It cannot simply be the fact that some people are suffering the eminently predictable consequences of their risks, otherwise we are removing the freedom to take the legitimate risk in the first place.  Instead, there must be something unusual about the risk or otherwise unpredictable about the outcomes that warrant the law intervening in some way as to correct the misinformation problem.  In this way, such laws will actually promote freedom rather than inhibit it. 

On that note, consider that a low threshold to regulating, sanctioning, mandating, and/or prohibiting activity in all cases—except perhaps by accident—subverts freedom in favor of the lawmaker’s desired outcome. This makes freedom merely instrumental to other political objectives.

In the conservative/libertarian approach, then, it will be the exceptional case where need is demonstrated sufficient to justify limiting a legitimate individual choice.  It does not appear to have been demonstrated in the case of the proposed headgear bill put before Gov. Brown.  He was right to veto it.

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at gmail.com.


  1. So if I can show, through statistical analysis of motorcycle accident rates and deaths or severe head trauma, that the inclusion of a DOT approved full face helmet likely reduces the incidence of death/head trauma in motorcycle riders, is that sufficient to justify a helmet law? (Aside: for a helmet law to be effective, it has to mandate the use of a 3/4 helmet or better, those little skull caps a lot of riders wear are almost useless and thus provide a way for people who would rather not wear a helmet to be in compliance, and still enjoy the risk).

    Alternatively, would we be OK as a society to tell people, “You are responsible for the consequences of the risks you take, and the public will not subsidize those results.”, e.g. if you choose to ride helmetless and suffer severe head trauma, the state will not provide medical care, so you’d better pay for enough insurance to cover your long term care. Where do we draw the line?

    • Given the standard I described above, unless the injuries resulting from motorcycling without a helmet are unusually high or otherwise out of line with reasonable predictions, there’s not a very strong reason to mandate helmets, no matter how much “better off” we think motorcyclists would be if we passed a law for “their own good.”

      Your “aside” raises a point along the lines of regulation to correct misinformation or misunderstanding among motorcyclists. If motorcyclists are using certain kinds of helmets expecting them to provide a certain amount of protection, but are proven to provide substantially less protection than anticipated, there might be a justification to mandate notice to correct the information asymmetry.

      As for the provision of tax-funded health care to uninsured risk-takers, I’m pretty firmly against it. I realize that is a hardy view steadily falling out of favor in our gentle society, so averse as it is to the very idea of pain or discomfort. But the alternative provides of no limiting principle against the withering of personal liberty in favor of the expanding role of government.

      • Am I misunderstanding your meaning in your final paragraph here? Someone arrives at the emergency room in need of urgent care and you’d like to ask, “Who’s paying for this?” If they are self-financing or have insurance, a-okay, but if the taxpayer is going to end up with the bill, then what? Turn them away?

        • I don’t understand the form of the question. If there is no public option, then the patient will be left with the options of insurance or self pay. So long as he or his carrier agree to pay, he won’t be turned away.

          • And if the individual can not afford to pay?

            My understanding is that emergency rooms are currently under an obligation to treat emergency situations, whatever the finances of the patient. Would the system you outline release ERs from that obligation?

          • I would not propose that, largely because it would be impracticable to conduct an appropriate vetting of the financials of a patient who is in need of urgent or emergency care.

          • Oh please, please, please can we ban is the use of the ugliest word in the English language–normative. I’ve had to have CPR administered 15 different times—one or two more times and a long dirt nap is my future, immediate future. Hey, you in the back–I heard you and your thunderous applause–Burt, Chris, BSK, Jaybird, Elias, my erstwhile friend, Tom–a few others I can’t identify.

            The sound and written use of that word goes right the bone, pure, excruciating, pain. Arghhhhhhhhhhhhhhhh……

          • Tim, I’ve made some calls and you’re going to be on Jeopardy in a couple of weeks–congratulations! You’ll mop the floor with Jennings–this should probably be a steel caged match, but this is the best I could dio–Good Luck!

            Pat says to Kim: “your sense of self is so ego-centered you’re probably indulging your every desire anyway.” Well, good for you! (her) And what’s wrong with you indulging your every desire with me? Right, nothing. Nothing at all.

            As a matter of fact, hop in your boat, (it’s a FULL MOON tonight)–meet me in the middle of the lake–if you hear Dvorak’s, “Song to the Moon” or Beethoven’s Emperor, or his Benedictus, or Schubert’s String Quintet, or Mahler’s 5th-the Adagietto. You may never recover. This music is so overwhelmingly gorgeous and intoxicating, the ecstasy you will feel, indeed, deep to the bone–will forever let you know what the Four Forces are. See ya and anchors away!!

          • There are dire consequences to that.

            Let’s say I agree with the principle that people ought to be free to be stupid (I do, coincidentally, but that’s besides the point for now). Let’s say further that I agree with the general principle that the consequences of one’s actions should fall upon the self (I’m okay with that one, too, actually).

            Here’s the problem: If I choose to ride a motorcycle without a helmet and I wind up road rashed in a ditch with a head injury, I am creating consequences that I myself cannot bear. I’m not even talking about the consequences to my friends and family and whatnot; to some extent they deserve it for putting up with my dumb ass in the first place.

            There’s going to be a pair of EMTs in an ambulance who show up, or a Highway Patrol officer, or whoever your local emergency services folk are. They’re going to see me, all messed up (note: we’ve already footed a bill to get them out there, unless you’re going to figure out a way to establish economic capability before you dispatch, which is a sticky widget). They’re going to have to check to see if I’m covered before they do anything… or, if you punt that down the line, the doctor in the ER is going to have to check to see if I’m covered before she does anything (each time you punt down the line, you’re freeing someone from Judge Dredd duties but you’re also adding cha-ching to the total, by the way).

            People who go to work in emergency medicine go to work in emergency medicine to help people, primarily. They have a vocation, which is distinct from their actual profession.

            You start telling ER doctors and EMTs and other first responders that they cannot follow their vocation in their profession, they’re going to quit. Well, either that or develop a really bad drinking problem or some other outward manifestation of PTSD. You can’t tell people who got into a job because they feel a vocation to help people that they can’t help a class of people, and expect that to work.

          • @Patrick, I think the more serious risk is that EMT’s will have to wait before delivering primary care on someone who is ensured but cannot provide proof of insurance because they’re unconscious/their car is on fire/they were drowning. If your solution to this problem is a mandatory minimum of care, congratulations you’re a socialist!

          • Hence the “unless you’re going to figure out a way to establish economic capability before you dispatch”.

            Yes, verification of coverage false negatives would be a huge miscarriage of justice. Just like the death penalty, some people might find that a non-persuasive argument.

            Not having any emergency responders (or ones motivated by something other than vocation) is something I think we can all agree is bad.

          • As it stands, EMTALA requires ERs to provide sufficient care to stabilize a patient who walks through the door (I won’t get into the issues with ERs having to deal with non-emergent patients). I don’t think the spirit of such a law should change since lives would be lost if EMTs & ER Staff had to verify eligibility before providing care.

            That being said, if the EMTs scrap your helmetless body out of the ditch & deliver you to an ER, and the ER docs stabilize you, but you are effectively a vegetable or comatose, I think it right that the financial burden of continued care should be on the rider & his insurance, or any non-governmental third party who wishes to accept that burden.

            BTW, if you are in the military, and you injure yourself through stupidity (such as riding without required safety gear), the military has zero problem with handing you the bill at the end.

  2. I have to dispute your characterization of at least two of the three primary ideological schools of thought, Tim, which is perhaps the result of my view of things through an economic lens.

    As I understand post-New Deal liberal political thought in the United States, in broad terms it views government as an instrument of rendering all segments of society reasonably satisfied with the prevailing culture and government, which has as a primary focus the distribution of wealth such that everyone’s material needs are satisfied. The “vogue humanitarian objectives” you identify are second-tier sorts of objectives within the ambit of that larger mission, which necessarily will shift as the social focus of dissatisfaction shifts. To the extent that cultural engineering occurs as a result of this, it aims at altering both the mold of society at large and the socialization of individuals into that society so as to reach that goal.

    So a liberal might look at a helmet law through a variety of lenses; in the case of the ski helmet law viewing the number of head injuries as rare and likely to occur only to those who have sufficient means to care for themselves should they occur, whereas a motorcycle helmet law might be more desirable because head injuries from motorcycle accidents are both more frequent than those from ski accidents, and more likely to happen to people who cannot afford to get the care they need to recover from the injury on their own. Thus, a ski helmet law represents a use of limited state resources which will produce no good that would not exist organically in the economic environment anyway, where a motorcycle helmet law is better-calcualted to effect the preservation of, or if necessary a more optimal use of, social resources.

    As I understand post-McKinley conservatism in the United States, it views government as the custodian and guardian of a culture in which the creation of wealth is both possible and encouraged; the mechanism by which it fulfills that mission is largely through the administration and enforcement of the law. Individuals who choose to disintegrate out of that culture for whatever reason have chosen to forfeit its benefits.

    Thus, your desire as a conservative for a law which includes a normative component — since the purpose of the law is to promote the good, a law which lacks a claim to effect the good is superfluous at best and potentially an abuse of the trust placed in government as the culture’s custodian.

    Oh, and tough break with Nate Kaeding. Everyone gets bit by injuries sooner or later. You guys have got a backup kicker in Longwell, so you should be able to get by until the supplemental draft in week 5 when someone good will surely be available.

    • Yeah, we came out of the gate with some miserable luck. Not that anything short of a miracle would have caught us up to you guys this week. A right good drubbing, you gave us.

      I’m not sure exactly where we disagree, given your analysis. I’ll point out that my rubric is not meant to suggest that these are the primary, defining principles of any of the three ideologies; perhaps they are only corollaries, for example. Thus, I don’t think I disagree with your characterization of modern liberalism, as I think both your explanation and mine concerning the approach to the helmet laws are plausible and consistent with that theory.

      I think I understand your take on conservatism, but again, I’m not sure it’s inconsistent with what I’ve staked out. I’m sure you’ll let me know if I’m missing something.

  3. The public burden argument is flawed in two ways. First, it is assumed that motorcycle accident victims are different than auto accident victims in terms of representation. While riding a motorcycle is indeed riskier than driving a car, there are far fewer motorcycles. To put it another way, about half of all traumatic brain injuries come from auto accident victims, while motorcyclists account for less than one tenth. Pedestrian strikes are about equal motorcycle accidents and deaths. So with that in mind, would anyone care to require helmets for cars and crosswalks? Of course not, since freedom is indispensable … unless it belongs to someone else.

  4. The second way the public burden argument falls apart is in terms of hidden costs and benefits. While it certainly costs money to care for a serious injury, it also costs a lot to administer and enforce a helmet law. As an example, there is a movement among motorcyclists to intentionally get tickets, fight them in court, and appeal when they are fortunate enough to get a conviction. (Prosecutors often dismiss charges upon appeal because it’s too expensive.) Additionally, there is a lot of money that flows against helmet laws in terms of motorcycle tourism. Harleys are expensive, and are a favorite of well-heeled travelers. So when a state repeals its helmet law, riders flock to their shores. And they bring their wallets.

    • Prosecutors might be less willing to dismiss charges if they know that getting the charges is an intentional strategy.

    • Just to be clear, for my part I had put costs of treating victims as only one amongst several factors. The key variables in assessing these public health oriented laws to me were: the level of inconvenience to the individual (how difficult is compliance?), penalties attached to violations (are penalties proportionate?), and the disease burden (what consequences for cost, mortality, morbidity, and such?)

      I don’t see how administering helmet laws or seat belt laws breaks the bank. We have traffic enforcement measures in place now. I envisaged these laws as being grafted onto those measures already in place.

      As for getting into the epidemiological aspect, I am no expert. In the contexts we are discussing the CDC favors helmets, seat belts, and children’s car seats. The original question posed by Tim had been, roughly, “Given your thoughts on the domestic worker law, what do you think of these measures?” If the CDC advised helmet use in cars and helmet use for pedestrians, strictly following the rationale I’ve outlined, I’d have to take a look at their evidence. Altogether, I don’t think this is a case of freedom for me and not for thee.

      • I don’t see how administering helmet laws or seat belt laws breaks the bank.

        Motorcycle helmets run anywhere from $30 – $300+ (you don’t buy used helmets unless you know for certain the helmet has never been hit hard enough to compress the interior), and you truly get what you pay for. So while the low income 20 year old looking to save some money on gas & insurance buys a $200 bike for getting around, he’ll probably only be able/willing to buy the $30 helmet so he’s in compliance with the law, while a more seasoned rider, one who believes in helmets, will not think twice about dropping $300 for a helmet.

        The problem is, from a physics standpoint, that $30 helmet is about as protective as a hat, especially above 25-30 mph. That $300 helmet will keep your skull in one piece at 100+ mph impacts (I speak from experience). Ideally, if a helmet law is to truly be effective at reducing injuries & death, it should mandate the $300 helmets, which raises the question:

        Are helmet laws truly for public protection, or just so society feels better?

        • Since Douglas had brought up high costs to prosecute, I was thinking of the costs incurred by the state for enforcing the helmet law. In terms of the cost to the individual, if requiring the $300 helmet is what is necessary to successfully accomplish the public health goals then I don’t see a problem with requiring helmets to meet that standard. (Though I’d hope that prices would come down and the more protective helmets would become less expensive.)

          Are helmet laws truly for public protection, or just so society feels better?

          Perhaps both.

          • It’s practically impossible to establish a legal helmet standard.

            Most folks who haven’t studied up on the subject don’t know that there is no such thing as a “DOT Approved” helmet. That’s because DOT doesn’t approve helmets. What they have developed is a test that manufacturers use to design their helmets. Then the manufacturer puts a DOT on the helmet to attest to it (like a USDA stamp on your rump roast … it only proves there’s blue ink in the stamping machine).

            The legality problem arises where you look at the standard itself. It’s what they call a “destructive” test, where the helmet has to be destroyed to find out whether it passed. In practical terms, you can’t tell whether any helmet meets the standard without ruining it.

            Here’s the rub: State laws are written as though DOT maintains a list of approved helmets. (They don’t.) State laws are also written as though a DOT sticker proves a helmet is legal. But there are a lot of DOT stickered helmets that have been recalled because the make/model failed the test. So the way the law is written, nobody can tell for sure if their helmet is “legal.” And that certainly includes law enforcement officers, who are rarely trained on helmet standards, and repeatedly fail to qualify in court as “expert witnesses.”

            So even though all of my description falls well within the realm of nit-noid trivia, the court of law is very particular about what’s in the details. Conversationally, it’s wordsmithing. In court, however, it makes all the difference.

            Bottom line is that a drive-by visual inspection of a helmet fails to meet the threshold for establishing probable cause. If a police officer pulls me over for wearing a little beanie, he’s guaranteed to waste a lot of police and court resources since the charges will never stick.

            I’ve been to court six times in multiple jurisdictions, and I’ve won every time. I expect the trend will continue, and I know the public helmet law debate will never have an impact on the outcome in court.

            Anyway, I appreciate the thoughtful and intelligent comments from the folks who are following this blog. This article was a lucky find for me, and I look forward to more great articles and comments across the political spectrum.


  5. Thanks DensityDuck

    This is currently the case in Nevada, where the helmet law violation was adjudicated in a “court of non-record” in a city court. Upon appeal to a court of record, the charge was promptly dismissed. This dismissal prevented the defendant from establishing there was no probable cause for the traffic stop based on an officer’s inability to visually determine whether a helmet meets DOT standards. (If a prosecutor proceeds knowing there is no probable cause, it’s called “malicious prosecution,” which is a serious offense.)

    Then the defendant successfully sued to recover fees and costs from the city, despite the prosecutor’s defense of his dismissal as conserving scarce resources for “real crimes” (NV helmet violations are a misdemeanor crime, not a mere civil infraction).

    During the lawsuit (after the judge stated prosecutor was preventing the defendant from having his “day in court” to test the helmet law) the prosecutor vowed not dismiss future helmet cases.

    Other tickets are now pending (with more to come) in that city to see how deep the prosecutor’s pockets are. The end result will likely be similar to directive issued BY the California Highway Patrol to no longer enforce helmet violations based on what is commonly referred to as an “illegal” helmet. You can wear anything as a helmet and they won’t stop you. It’s unenforceable once it hits the courthouse steps.

    This California precedence was established by the same folks who are taking the fight to Nevada (and elsewhere). Once prosecutors decline to ever prosecute, the law is essentially null and void in their jurisdiction. And if they do, it will be appealed as far as it will go. Since all helmet laws are unenforceable within the “four corners” of the state law as written, they will succeed. They already have prevailed in Virginia, where the state supreme court ruled helmet standards are “unconstitutionally vague.

    (Good luck trying to wrap your noodle around what “DOT approved means … DOT doesn’t actually approve anything. It’s a standard applied to manufacturers, no different than than little tag hanging off your mattress. And there are plenty of recalled helmets that have a DOT sticker.)

    The higher the court, the greater the jurisdiction. Then any helmet, no matter how silly it may look, will be perfectly legal. I know it sounds stranger than fiction, but I have been following these cases for years.


    • Welcome, Douglas! Always a pleasant surprise to have a fresh, new perspective on these matters. Warning though–Conservatives are outnumbered by a 23-2 ratio and that’s on a good day.

      You’ve heard it all. You’ve read it all. Boiler plate, tedious. trite Liberalism reigns here and if you so much express even the slightest disagreement on the same-sex marriage issue then you better be attired in formal knight’s armour because they’ll be coming at you like a pack of banshees on LSD!

      That said, they’re all pretty much good guys here–gone adrift, yes–irretrievably adrift, possible.

      You’ll have fun, and am looking forward to reading your comments.

  6. Thanks Creon Critic

    While the debate is … well, debatable, it really only matters when it comes to the opinion of those in positions of power. Water cooler discussions have no weight, despite our democratic beliefs that everyone’s opinion counts. If prosecutors decide it costs too much to prosecute, case closed … no matter what other people may think (and they usually don’t).

    We’ve also taken the “Repeal It or Feel It” game plan to the executive and legislative branches as well. While most of that activity is privy only to activists fighting the helmet law, I can say that there is a cost to all three branches that is unsustainable, whether court costs, administrative costs, or election costs. With our approach, which has a solid string of successes to back it up, outright repeal is inevitable. We found their weak spots, and concentrate our forces where it has the greatest impact.

    So while I totally understand both sides of the “freedom vs safety” debate, I don’t worry about who’s right or wrong. (They’re both right, for all it matters.) But any and all debate is trumped by the principle of “might makes right.” Our current crop of politicians didn’t get on top by having better ideas and by being genuinely altruistic. They developed political machines (which advertise ideas and altruism like beer commercials advertise bikinis and athletes), and their sole purpose is to produce and maintain political power. Only through power are they able to call the shots.

    We are now producing power, too. The only difference is that we are restoring the republic once we get there. And get there, we will.


  7. I reject the standard you propose for deciding when to regulate as arbitrary and not linked to any real moral or intellectual ground. If you are a conservative (as opposed to a libertarian) you believe there are certain circumstances where the markets or freedom will not work because there are insufficient incentives or information. Under that standard, I don’t think you can justify helmet laws.

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