On Little Liberties
An interesting news clip from the 1980s has been making the rounds showing initial reactions by Californians to the implementation of a law that reduced the legal maximum blood alcohol content for operating a motor vehicle from 0.15 to 0.10 (still well above today’s 0.08). In the clip, we are treated to people with hillbilly accents telling us that we are on our way to full-blown communism if we allow the state to mandate such things as how drunk we can be behind the wheel. It is a quaint artifact of a time when public safety considerations were much different, and it serves the dual purpose of both providing insight into seemingly settled civic debates and allowing viewers to feel superior to the rednecks complaining that Big Brother was coming for their beer. But in a country where the political left and right alike ground their issues firmly in a framework of individual liberty and freedom from harm, a critical question is being ignored: what if the rednecks had a point?
There really is something to be said for the loss of the small, consensual liberties that have been ceded in recent decades. Whether it’s book-banning Ron Desantis or our similarly censorious Democrats, if one looks at the lived experience of your average American — what they can and can’t do, how they can and can’t live — we see an ever-growing list of restrictions that, while not harming anyone, do materially change the way one can live their life without clearly improving the lives of others. And whether these measures protect the individual is largely irrelevant to those pushing them: these are not “nanny state” policies, after all. They are there to protect the larger community. And who wants to harm their community?
One of the clearest (and most generally approved of) examples of this restrictive tactic is the increasing policing of tobacco use in public and shared spaces. In the push against smoking as a social ill, legitimate problems — the nonconsensual harm caused by secondhand smoke, the danger posed to minors through lax enforcement of age requirements, the information imbalance between the lay smoker and the tobacco executive — were capitalized on to bring forth a wave of tobacco restrictions that have far surpassed anything that could realistically be pitched as for the protection of others. It makes sense to ban smoking in places that are likely to be filled with those who do not smoke and do not have a real choice of whether or not to be there — the workplace, the grocery store, the hospital, and so on. But as funny as it sounds, no weight was given to the legitimate right of the smoker to live in a way that is comfortable and reduces friction in their own life. States and municipalities should empower their businesses to decide whether to allow smoking in their establishments — but who realistically benefits when we tell a business owner and their patrons that they are not allowed to make the decision? Who is really being protected here?
If smoking bans are too recent or potentially fraught for you, then let’s consider a set of proposals that are even more widely accepted: mandatory seatbelt and helmet laws.
When seatbelt laws were first floated in the 1970s and 1980s, a discussion quite similar to what we saw during Covid took place: proponents called them lifesaving social measures that helped society as a whole; opponents called them creeping government authoritarianism and accused their proponents of being neofascists; and regular Americans pinballed between new and developing regulations until both sides could agree to a Goldilocks-like policy that was just restrictive enough. Today, only one state does not have some form of seatbelt requirement on the books, and an estimated 255,000 lives have been saved due to the enactment of these laws. Similarly, a review of motorcycle accidents from 2002 to 2017 showed an estimated reduction of 25,000 crash fatalities thanks to the use of motorcycle helmets, despite opponents of said laws also decrying them as government overreach. In these cases, the data actually is clear: requiring seatbelts and helmets has a direct, massive impact on the number of traffic fatalities.
And yet these restrictions still contain one fundamental problem: the legitimacy of their claim of social benefit from the imposition of these laws. Similarly to the case of tobacco use, there is clearly an argument to be made for restrictions aimed at those who are not legal adults: we generally agree that minors ought to have their actions restricted until reaching the age of majority, and it is fair to say that they cannot reasonably decide whether they are willing to take the risk associated with not buckling up. Additionally, there is a legitimate question around the addition of passengers to a car: if one unbuckled passenger causes harm to others who themselves were buckled, then have those buckled passengers not been legitimately harmed? It follows then that we ought to place requirements upon the use of seatbelts in vehicles with more than one occupant for exactly this reason.
For those individuals driving or riding alone, however, the immediate harm is entirely their own. If I wrap my car around a pole and am thrown through the windshield, I will almost certainly die — but I will not be clearly harming anyone else. If I refuse to wear my helmet and shatter my skull in a mid-speed crash, then I am the victim of my actions. It speaks volumes that the attempts to find social harms caused by noncompliance with seatbelt and helmet laws lean so heavily on “lives and costs” or immaterial harms rather than clear harm experienced by those outside of the individual driver or rider. Similar language is used when trying to argue against the social ills of obesity and poor nutrition, pointing out the economic burden we shoulder as a result of the poor decisions of the overweight. Some enterprising liberals have pounced on this cause, proposing bans or taxes on unhealthy food and drinks, and it is unsurprising that conservatives have picked up the language of social harms to pitch scrapping food support programs altogether. Everyone agrees that the lay American ought to be restricted, it’s just the particulars that get messy.
The above argument feels, of course, kind of silly. Even most conservatives wouldn’t pitch the rolling back of smoking bans to be a major win for individual liberty. But the smuggling in of larger restrictions by state and non-state actors with less offensive measures has become the logic used to justify legitimate material social harm.
Taken to it’s extreme against the left, this idea that we can restrict the actions of individuals to protect some vague social “other” in the name of ultimate freedom gets us the Janus v. AFSCME case: a gutting of the power of labor unions to allegedly protect the collective rights of anti-union workers. Under the guise of protecting workers from some vaguely harmful elements of collective bargaining agreements, the union as a body is banned from enacting policies that it believes to be in the best collective interests of those it represents, even if the employer and employees agreed to the terms. The anti-labor right successfully pitched consensual work agreements between a worker, their union, and their employer as a social harm that ought to be rolled back.
As for pet issues of the right, the continued tightening of firearm restrictions sees legitimate social safety measures being packaged with arbitrary exactions of state power in a way that makes serious discussion of any particular measure almost impossible. It is a meme at this point that most Americans support “gun control,” but what exactly does that mean? It is reasonable to say that people want fewer mass shootings and fewer casualties from mass shootings. So what are we doing to reduce these instances and their lethality? And who is being protected by what we do?
In my own home state, a complete ban on the sale and transfer of “assault weapons” recently went into effect. This was lauded as a way to reduce gun violence — and especially the instances of mass shootings — and came roughly a year after a ban on “high capacity magazines.” These were hailed as brave steps by our government to finally do something to protect citizens from the scourge of gun violence. This is, of course, despite the fact that there has been no clear connection established between general access to assault weapons or “high capacity magazines” and the rates of homicides committed with firearms. The things that have been found to reduce these rates, however, are the things that almost everyone already agrees with: universal background checks, selective prohibitions on (and potential confiscation of) firearms for those with criminal records, and the ability to restrict carry permits for those also considered high risk for violence. Yet in the shadow of laws with a proven potential to reduce death and suffering, we are implementing more and more restraints on the ability of random Americans to own and operate firearms in ways that, categorically, will not harm others. The cancer that is gun violence has been capitalized upon to create another point of restriction, without even an attempt to seriously justify itself.
All of these impositions rely on a fundamental belief that the state has the right to restrict individual actions that have unclear (or no) external consequences. This belief is required to make sense of bans on smoking in adult-only restaurants that would otherwise permit it, and the same belief is required to attempt bans on drag shows or library materials to protect some ethereal “youth.” If the government is truly a Millian organism, responsible for protecting particular citizens from direct harm imposed by other particular citizens, then this belief contradicts its entire purpose. Even if we allow the expanded harm principle into the discussion, considering how the state ought to protect individual citizens or citizens as a whole from the indirect harm caused by other citizens (e.g. pollution, unsafe working conditions, etc.), this would only take one as far as, say, passenger-dependent seatbelt laws, or bans on smoking in buildings without sufficient ventilation. But if we want to move into the realm of restriction of the individual for the protection of the individual, then we must move away from this concept of liberty altogether.
Which brings us back to our Californian friends from the start of this piece. We may scoff at the statement that “it’s kind of getting communist when a fella can’t put in a hard day’s work . . . and at least drink one or two beers.” We know that drunk drivers account for a massive chunk of those killed (and causing death) in traffic accidents, but at the same time we’ve also seen that merely reducing the legal BAC slightly does not necessarily reduce the amount of traffic accidents. The levels of impairment that generally lead to accidents are clear, but for those who get behind the wheel at 0.09 BAC and receive a ticket for driving under the influence, what social good do they feel in reducing their legal limit from 0.10 to 0.08? They did not crash, so for the reality they are living in, all this is is another government imposition on the way they are living. If we are legitimately concerned about the social costs of individual actions, then the policy proposal around drinking and driving becomes clear: reduce the legal limit to 0.0. But we will not. And when the state begins to pass seemingly arbitrary restrictions on the life of it’s citizens, the legitimacy of the argument has been forfeited. The state is no longer acting to protect it’s people in a way that it can meaningfully explain. It has abandoned the need to justify itself to itself. It is no longer helping to protect us from our neighbors: it is telling us we can’t even be safe with ourselves. We have given up the right to live as we want, and it is unclear what we’ve gotten in return.
Jitter 