Lessons in Liberty (Part 4)

By Merrill Ring

Reasons must be given for restraining the exercise of our freedom.  Case:  what justifies the requirement that people be vaccinated against infectious diseases?  

Gliding over many important details, the upshot of the previous essays in this sequence is that this country’s commitment to freedom (what is typically called ‘negative freedom’) requires that the burden of proof rests upon those who would restrict freedom in specific ways and cases.  It is not that we are committed to freedom in such a way that no restrictions on it can be justified, as the libertarians (see Senator Rand Paul) attempt to hold.  There are many justified restrictions, which can be recognized without in the slightest surrendering a commitment to freedom as a central value.  

The serious question concerns the considerations that enable us to properly defend restrictions on people’s freedom to do as they wish.

I won’t be trying to work out a complete list (if that is possible) of possible lines of justification for restricting freedom.  Rather what I shall be doing is to consider some of the prominent reasons for holding that in certain kinds of case, someone’s freedom must be restrained in this or that way and to this or that degree.  For instance, I mentioned previously that to accept freedom in the market place does not mean that we can accept discrimination against some minority at the lunch counter. If you are to engage in a business, in a market activity, your freedom to discriminate against possible customers (or employees) can rightly be denied since that exercise of your freedom amounts to an unjustified interference with the freedom of those discriminated against.  It does not follow, however, that you must serve a drunk or hire a drunken employee.

As I write this a case of a similar sort is roiling American political discourse.  It is the issue of vaccinations, in this case against measles.  Some people are refusing to have their children vaccinated against measles and are thus contributing to the spread of a serious infectious disease.  

Now of course it is possible to think that what ought to be done, given our commitment to an individual’s liberty (and in this case that of a parent’s freedom to see that their children are properly treated), is to convince each of the disbelieving parents that they are mistaken about the efficacy of the vaccination and the absence of serious harm that the children might run if vaccinated.  Or, differently, to convince them by argument that they are also causing a serious problem for others by this exercise of their freedom.  

But those solutions would all take substantial time to accomplish and, moreover, are not even as efficacious as the vaccinations would be, given the ability of some people to resist rational persuasion.  So the strategy is to require vaccinations of all the relevant children: pass a law that restricts the freedom of the parents by making them have their children vaccinated, subject to penalties for non-compliance.

Now can that solution be accepted, not just in panic but rationally, upon reflection, by we who are committed to freedom?  Surely it can.  Crudely put, the case correctly concludes that the public welfare, the public good, is such that it outweighs, in the relevant circumstances the parents’ freedom to do what they think best for their children.

Below are some passages from the decision of the Supreme Court, way back in 1905 incidentally, on the twin issues of whether an individual’s freedom can be restricted for the welfare of society and whether required vaccination is Constitutionally permissible.

Freedom – and Vaccinations

A man named Jacobson filed suit in opposition to a Massachusetts law requiring vaccination against smallpox.  The case made its way to the Supreme Court where it was decided in 1905 by a 7-2 vote with Justice John Marshall Harlan writing the decision.  The Court’s conclusion was that the state did have the power to require vaccinations for the common good.  From the decision:

“The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best, and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.

“But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that "persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State, of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made so far as natural persons are concerned." [The court has previously said] "The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law."….

"Smallpox is known of all to be a dangerous and contagious disease. If vaccination strongly tends to prevent the transmission or spread of this disease, it logically follows that children may be refused admission to the public schools until they have been vaccinated. The appellant claims that vaccination does not tend to prevent smallpox, but tends to bring about other diseases, and that it does much harm, with no good.

"It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession. It has been general in our State and in most civilized nations for generations. It is generally accepted in theory and generally applied in practice, both by the voluntary action of the people and in obedience to the command of law. Nearly every State of the Union has statutes to encourage, or directly or indirectly to require, vaccination, and this is true of most nations of Europe.

"A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts.

"The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive, for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action; for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does, in fact, or not. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a republican form of government. While we do not decide and cannot decide that vaccination is a preventive of smallpox, we take judicial notice of the fact that this is the common belief of the people of the State, and, with this fact as a foundation, we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power.

“Since, then, vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because, in its or their opinion, that particular method was -- perhaps or possibly -- not the best either for children or adults.”

Note:  The entire decision can be found at https://supreme.justia.com/cases/federal/us/197/11/case.html

This decision (which happens to be about the present concerns with vaccination) presents a powerful argument that even in the United States freedom can be properly restricted for specific reasons.  What is further interesting about it, given that the theme of this essay concerns reasons for restricting freedom, is that it employs along the way a variety of (seemingly) different reasons why freedom might be restricted in such a case as was being considered.  

Let me note what reasons are mentioned:  “for the common good”, “injury to others”, “general health, comfort and prosperity of the State”, ‘safety, health, peace, good order and morals of the community”, “common welfare”.

Now some of those probably mean the same thing, are probably just linguistic variants of one and the same reason.  But there are just as likely differences also.  As I said earlier I do not intend to examine the entire (?) set of reasons that may be employed to justify opposition to the exercise of freedom in various kinds of case.

What I do want to point out is that each different reason can be subjected to critical examination to see whether it is a sufficient reason for restraining someone’s freedom to act in a particular kind of case.  The first reason mentioned in the Court’s decision above, and one that frequently is employed in similar contexts, is that the restriction is “for the common good”.

That has been rejected as a reason for government action by some thinkers.  Next time, I will examine the reasons why it has been rejected and offer a defense of its employment.

Notice that a new question comes up at this point.  Suppose someone were to attack that line of argument which involves an appeal to the public good, the public welfare, by holding that there is no such thing as the public good.  

Let me jump to a much less important case.  The Congress not long ago passed standards for light bulb efficiency that in effect will prevent the sale of incandescent bulbs for general lighting purposes.  There was a huge outcry against that act (and there remains opposition.)  There were/are several grounds for that opposition - e.g. fears of mercury poisoning, greater cost of the new bulbs, inferior lighting quality of the new bulbs and others.  The only ground for complaint that is relevant here has to do with freedom:  many who opposed the new law did so because it interfered with the freedom of consumers to purchase whatever kind of light bulbs they wished.  The government had, on this complaint, wrongly interfered with  freedom.

There is no doubt that it was a restriction on freedom.  The question of course is whether it was/is a justified restraint on people’s ability to pursue what they want.  

Well, what did the Congress and other advocates of the law have in mind as the reason for phasing out old style bulbs and setting standards that broadly require elimination from the market and thus from places where general lighting is used of incandescent bulbs?