A reader of this blog recently asked me why Americans seem so confused about whether individual “choice” is an essential element of freedom. Why, for example, do many Americans see reproductive choice as a critical human right, but oppose school choice, or the individual’s choice to own lethal weapons? Why did people during a pandemic oppose rules requiring them to wear masks, claiming their right to choose? Can we make sense of these differences?
I think we can.
I have frequently alluded to the libertarian principle that underlies America’s constitutional system. Those who crafted America’s constituent documents were significantly influenced by the philosophy of the Enlightenment, and its then-new approach to the proper role of the state. They endorsed the principle that Individuals should be free to pursue their own ends–their own life goals–so long as they did not thereby harm the person or property of another, and so long as they were willing to accord an equal liberty to their fellow citizens.
The principle seems straightforward, but it requires a measure of consensus about the nature of harm to others.
To use a relatively recent example, lots of folks were enraged when local governments imposed smoking bans in public places. They insisted that the choice to smoke or not was an individual one. The bans, however, resulted from medical research documenting the harms done by passive smoke. The ordinances were based upon lawmakers’ agreement that individuals should retain the choice to smoke in their homes or cars or similar venues, but not where they would be polluting the air of non-consenting others.
Essentially, the libertarian premise asks: What is the nature of the “harm to others” that justifies government intervention? When may government disallow a seemingly personal choice? How certain does the harm have to be? Does harm to others include harms to non-persons (fetuses)?
Most sentient Americans understood that a rule requiring people to wear masks in public places during a pandemic was essential to preventing harm to unconsenting others, just as the ordinances against smoking in a local bar protected non-smokers from the hazards of passive smoke, and laws against speeding protect against potentially deadly accidents.
When we get to issues like gun ownership and educational vouchers, there is considerably less agreement–although survey research suggests that most Americans favor considerable tightening of the laws governing who can own weapons, given the daily evidence that lax regulation is responsible for considerable and often deadly harm to others.
What about allowing “parental choice” in the use of tax dollars to send one’s children to private and religious schools? Or, for that matter, “parental choice” to control what books the local library can include on its shelves?
The evidence strongly suggests that “educational choice” is harming both civic cohesion and the public school systems that serve some 90% of the nation’s children. (Given the large percentage of voucher users who choose religious schools, there is also a strong argument to be made that these programs violate the First Amendment’s Separation of Church and State.) There is also a significant difference between exercising choice with one’s own resources–which parents can absolutely do–and requiring taxpayers to fund those choices.
With respect to libraries, parents can certainly choose to prevent their own children from accessing books of which they disapprove, but efforts to keep libraries from offering those books to others is a clear violation of the portion of the libertarian principle that requires willingness to accord equal liberty to others.
Whether to impose on an individual’s right to choose a course of action will often depend upon a weighing of harms. With respect to a woman’s right to choose an abortion, even people who claim that a fertilized egg is a person should understand that an abortion ban demonstrably harms already-living women–physically, emotionally and economically. (It has become abundantly clear that very few of the “pro life” activists really believe that a fertilized egg is equivalent to a born child; they are far more likely to favor a return to a patriarchal time and a reversal of women’s rights. But even giving them the benefit of the doubt, a weighing of the harms clearly favors women’s autonomy.)
Bottom line: a free society will accord individuals the maximum degree of individual choice consistent with the prevention of harm to others. There will always be good-faith debates about the nature and extent of the harms justifying government prohibitions, but those debates should start with a decent respect for–and understanding of– the philosophical bases of our constitutional system and the relevant credible evidence.
A good society chooses wisely.
Sheila, you always do a great job of untangling sticky issues and making them understandable. I really appreciate all of your efforts! Thank you!
I take issue with one matter in your post. Several reasons have been advanced for the ban of smoking in public places. One that is not valid is the physical harm to non-smokers of second-hand smoke (SHS). The principal support for that has been from epidemiological studies. There are two numbers and ranges of numbers that can establish that cancer and/or emphysema. One is the risk factor. To establish causation, that number can be no less than 1.95. The range of numbers is the confidence interval. One “end” of that number (as I recall; I haven’t looked at my notes in about a decade) cannot be less than 0. The studies cited by the City, when we argued here in District Court and, later, at the 7th Circuit, never “hit” 1.95. Nor did the confidence interval clear any hurdles. If more recent studies pass muster, then there is the support for the argument. Otherwise there was no statistical significance to the studies cited by the City.
Remember when seat belts were made mandatory, saving countless lives while at the same time infuriating some who thought it to be a violation of their individual rights? For a brief time some vehicles were equipped with automatic belting but that proved too intrusive I think, and it has since become the law to buckle up of course. I think most Americans have come to realize their potential life-saving benefits. What about drinking and drug use? Excessive use of either potentially puts others in danger, while behind the wheel of an automobile for instance. Prohibition didn’t work, and wouldn’t ever, I don’t believe, but the danger remains. The greatest danger is to the user, with so many alcohol-related accidents and 70,000 or so yearly deaths from fentanyl. It’s complicated.
The masking issue was always going to be a culture war issue, but it constantly frustrated me that wearing a mask was promoted as a safety feature for the person wearing it, rather than a safety feature for everyone else. I imagine this was on purpose because they figured personal selfishness would help get people to wear masks more than an empathetic desire to help others. In any case, the _primary_ point of the mask is to stop an infected person from spreading their germs so easily.
As an example, around Vancouver, BC, there is a large Asian population, and for a couple decades now, it has been common to see individuals from this community wearing a mask in public. In these instances, the person isn’t “germ-phobic;” they simply have a cold, or cough, or other illness and are helping prevent its spread. It’s a very decent and neighbourly thing to do.
This misunderstanding occurs with vaccines as well. There are certain people that cannot take a vaccine, often related to an existing health issue. These people are made safe by everyone else getting vaccinated, which makes it difficult for the bad biogen to spread. This understanding regarding vaccines is what led to our concept of herd immunity.
Conservatives in the 1950s and 60s opposed personal photos on drivers’ licenses as a government “Big Brother” attempt to get information and an intrusion on their privacy.
John H.,
Except for the fact that Dr. Aaron Carroll, former Chief Medical Officer of Indiana University, said in a university-wide webinar that I attended that they are no studies that he has seen that make a valid claim that masks do anything to stop the spread of COVID (or any other virus or illness).
Want to talk about choice?:
“NEWS: Court Rules Teaching Evolution Isn’t ‘Forcing’ Students Toward Atheism.
As a recent feature recapping political assaults on science education across the United States put it: ‘Scientific theory has had a rough time in America’s public schools.’ Fortunately, an effort to ban teaching the theory of evolution was dismissed by a federal judge in Indiana. The plaintiffs claimed that teaching evolution required their children to accept the ‘religious myth of evolution.’ Judge Sarah Evans Barker disagreed, quoting a 1982 case that found ‘it is clearly established in the case law, and perhaps also in common sense, that evolution is not a religion and that teaching evolution does not violate the Establishment Clause.'”
All too many people think that choice is only about their personal one!
Ironic that these religious folks call evolution a “religious myth.”
the first admendment, for those who want to dimminish that right.they
will be the end of the conversation. then we become the forgotten under the thumb of someone else. all the topics here, and all that are endless in a free society. those who want to silence us for keeping them alive and well at our/their expense. in a free society,one becomes the keeper of all others. those who oppress will soon find they to,will be oppressed. conversation today is limited, ite been bastardized by social media with many hiding in the shadows with out face to face conversation. one should look into the others eyes to see where those words and ideals enlighten,and distroy. in 1984, it was wordspeak, today its social media. stand your ground should mean, equal/equality an oppertunity for all. this november is 1932 nazi germany.
we are at a cross road like in 1932 where the industrialists and banks will support a candidate like trump to fulfill a take over of America as we know it.
we have for centuries defended it,and died for it. all those who have died for this freedom,s will be forgotten and the reason why.remember,hitler was no one til the rich backed him..hey elon,KMA.
Mathew,
I believe you misrepresent Dr. Carroll’s position. Of course, masking didn’t stop the spread but still reduced it. Now that we have an effective vaccination, most people no longer need to mask.
Perhaps, you can provide everyone with a link to the webinar. As an IU grad, I’d like to hear what Carroll said.
Well done. Thanks. The fact that our governor is participating in a group called “Governors’ Coalition for Energy Choice” to push back against clean energy by removing regulations on oil and gas companies and limiting investments in clean energy is one of those activities parading under the label of “choice” that seems to me to affect the wellbeing of all of us who inhabit this planet. It is not about choice, but about advancing a certain viewpoint on all.
This bit best illustrates why our children are increasingly less prepared for the coming future. Oh, they’re plenty smart, but the politicians and churches keep slamming the brakes on real learning:
The evidence strongly suggests that “educational choice” is harming both civic cohesion and the public school systems that serve some 90% of the nation’s children. (Given the large percentage of voucher users who choose religious schools, there is also a strong argument to be made that these programs violate the First Amendment’s Separation of Church and State.) ”
Vouchers are code for religious idealism. Having taught science/evolution in Texas (Required at the time as state-mandated curriculum), I saw how churches absolutely deluded children and parents irrespective of the good science that any responsible teacher would include in the lessons. Backward, closed minds are the result of bad parenting and backward church-related philosophy.
It should be noted that there is nary a mention of anything related to evolution in the Bible, the Quran or the Talmud. Just sayin’… Ideologues are just making stuff up as they go.
There are good reasons why we are the safest, most comfortable humans ever to live on the planet.
The main ones are our Constitution and our mixed economic system. Additional ones are our education system, natural resources, and diversity due to our country being mainly a country of immigrants.
Internal propaganda financed by individuals began eroding those collective advantages several decades ago by convincing some individuals that they were not adequately safe and comfortable. In essence, the words propagated the concept that we are not individually safe in our homes due to the collective economic advantage of diversity, but we could be if we redistributed more wealth from makers to takers.
Politics began eroding governance.
Can we pull out of conditions that cause consequences that could develop into a death spiral in time to save our safety and comfort and ensure a successful economic system?
Possibly.
Mark Small, I must take issue with what you stated about second-hand smoke: While it may not be a discernible cause of cancer for nonsmoking bystanders, it can have serious impacts. I can’t be near smokers, even outdoors, without having asthma attacks. While not necessarily life threatening (yet), it causes considerable discomfort and difficulty in breathing, requiring use of an inhaler. For that matter, if I get within a few feet of someone who reeks of smoke, my bronchials start closing drastically, and I will have trouble breathing for several hours afterward. It’s so nice nowadays to be able to go to a restaurant or bar—or any public venue—without having to worry about breathing.
If I remember correctly, barkeeps were the most prominent opponents of the non-smoking ban. They thought, wrongly, that making bars non-smoking would kill their businesses. It turned out that their dwindling smoking patrons were keeping new non-smoking patrons away. We humans hate change!
Many of the public safety laws make me wonder about humans and their choices. For instance, why did it take the government so long to force drivers to wear seat belts? Cars always had them available, but individuals could choose to wear one. Why did the government remove that choice?
Every time the government considers making motorcycle helmets a requirement rather than a personal choice, lawyers take over and kill it. Just like with seat belts, I know the risk of not buckling up or not wearing a helmet, and it doesn’t impact other people one iota. So, why does the government want to negate our own free will?
I just looked this up yesterday; riding a motorcycle is safer than being a pedestrian. Should the government force pedestrians to wear safety helmets?
I also posted yesterday an article out of Florida where DeSatan has prohibited the teaching of sex education and examples of how to put on a condom and prevent teachers from using the word “fluids” in any public school class. Abstinence is their only solution. Get ready for teen pregnancies to skyrocket in Florida.
“A good society chooses wisely.” Your last sentence begs the question, ” Are we a good society? ” I would say we can be and have been, especially when we have had a disaster that impacts all of us. Currently, our culture consists of one side intimidating the other and members of their own tribe who have been disloyal to the Orange Jesus.
The republican party understood decades ago that “creating issues” and using the media to make people angry about “those issues” was a sure-fire way to get their voters to show up to the voting booth. It has worked wonderfully for them while the democrat party just continues to try to get people to focus on, understand and cast their votes based upon the “real issues” that actually positively or negatively affect our daily lives.
It seems that the only way we democrats could try stop the republican lies is to counter them by spreading lies of our own in the media and hope it would anger republican voters enough to make them question what the republican politicians have told them.
marc small –
I must take issue with your claim that second-hand smoke doesn’t cause physical harm to people. As a person that suffers from asthma I can assure you that second-hand smoke causes severe breathing stress for me.
Until the IN legislature decided there could be no smoking in establishments that served food, there were millions of us that had stopped patronizing most restaurants. After smoking was prohibited, those establishments were pleasantly surprised by how much their revenue increased with additional customers.
Mark Small, let’s ignore the fact that the medical cause and effect of second hand smoke might be hard to prove with ethical experiments. Let’s ignore the fact that you might deny entrance to people that happen to suffer from other lung ailments. But you’ve ignored the other costs smoking has beyond medical effects. If we went to a restaurant and sat in the “non-smoking” section, when we went home, the clothes would go straight to the laundry and often had to rinse our hair to get rid of the smell. As a non-smoker, I still have my sense of smell, and in a smoking restaurant, I seldom ever said the food coming out of the kitchen smelled good because the only thing you can smell is cigarette smoke! Last time I was in Vegas, we had a “non-smoking room”. After I complained about the smell of cigarette smoke, they brought an ionizer to the room and even after several hours, the room still stunk. Those are minor inconveniences but it is a cost that I wish others didn’t impose on me.
I’d much rather see a sign that says “no peeing in the pool” than one that says this is the “non-peeing section”.
I’ve read that Tim Snyder author of “On Tyranny” has just released his new book “On Freedom”. He said in the framework of U.S. democracy our freedoms are shifting from being protected from negatives to our freedoms to do/ build our lives. I plan to read it.
Matthew Radican,
No one has done any conclusive studies because there are ethical issues that would require people to knowingly be exposed to potential pathogens. The IU president, and you have cherry picked an out of context fact and here we are 4 years later repeating half truths.
Among the fact based community there was general agreement that people were dying in much higher numbers than usual and that COVID was the reason. A botched response by the US government meant that masks that really could protect the wearer (N95’s) were impossible to get. The next best thing was something that could possibly protect other people from that time a person was infected until they came down with symptoms and then they knew they should stay away from other people. To the people in 1918 (yes they were masking then) to the rest of us that paid attention to the science, this seemed like a small sacrifice to make to keep from killing someone’s grand parents. This seemed like a reasonable restriction of personal liberty to prevent harm to others.
Since smoking has already been dealt with, let me address three other issues.
1) Motor cycle helmets affect insurance rates because risk is pooled. I would favor “I don’t wear a helmet” riders on policies and let people decide for themselves to pay extra — more organ donors.
2) As a retired scientist who has read the literature, the “meta-data” studies are, in my opinion, flawed. Most studies look to see if virus-sized molecules are blocked by masks. Viruses are “sticky” particles which will stick to cloth more avidly than the organic molecules studied. The one study that I found that tested viral transmission put infected animals in cages next to uninfected animals, with or without a cloth barrier. There was a 95% reduction in infections with the barrier. There are also epidemiological results from 1918 when some cities mandated masks and others did not. Masking helps. Part of the government’s wishy-washy attitude on masks may have been fear that low risk people would take all of the masks, leaving none for high-risk individuals and medical personnel.
3) On education, for too many people, the purpose is missed. The purpose of public education is E Pluribus Unum, trying to create an “American” polity, educated with shared understanding of our country and a baseline of knowledge, under the belief that an educated polity “should” lead to our choosing better leaders. Businesses also preferred workers who could read. Religious education can be provided by after school and weekend classes. If you want to “shield” your child you are free to send your child to a private or religious school, but don’t expect me to pay for it. I don’t want to pay to educate people like Gary Bauer’s daughter who told her young Jewish playmate that she couldn’t play with her any more because she was going to hell (a friend of my niece was the target). I am not interested in paying for any private schooling, even a more benign variety.