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.