Health Law Arrogance

There’s so much to talk about, but let’s go out for a walk or step into a shop. Unfortunately, some people pugnaciously claim the freedom to ignore health laws.

In 1824, the earliest discussion I know of by the U.S. Supreme Court, Chief Justice Marshall delivered the Court’s opinion that states have the power to protect the health of the people with “Inspection laws, quarantine laws, health laws of every description….” He added that the constitutionality “of the quarantine and health laws … has never … been denied.” And he continued that they “flow[] from the acknowledged power of a State, to provide for the health of its citizens.” Some states do that well and some badly, but Marshall’s point was that they have the power to protect their people.

The freedom to behave in ways which violate health laws and risk the health of our fellow citizens is purely selfish and unsupported by anything our forefathers fought for or wrote in our constitutional documents. Chief Justice Marshall’s decision nearly two centuries ago remains the law of this country.

Too many people corrupt the notion of freedom into the freedom to do whatever they want, no matter the risks to others. It has never meant that. That corruption survives only as an index of some Americans’ lack of public spirit.

Americans have lost an understanding of the seriousness of freedom. It was never about trivialities when government has a reasonable basis for regulation. Could you claim that you should have the freedom to risk your own life by ignoring a red light? Should the engineer have the right to nap in the cabin with the train in motion? Even if he wanted to commit suicide or didn’t care if he were killed in his sleep?

Republicans used to talk about responsibility. They were talking mostly about social conventions, particularly sexual ones. Responsibility to others lost its appeal to Republicans as law began to impose obligations in the Progressive Era at the end of the 19^th century. Law made corporations take responsibility for working conditions. Law allowed regulation of monopolies like telephone and power utilities.

Responsibility to others certainly involves costs – costs to spot and deal with poison in the waste and garbage dumped by companies; costs to deal with dangerous equipment in their shops. Protecting people from behavior that could cause damage or injury can certainly feel like a nuisance to the companies.

But with that kind of attitude at the top, no wonder that ordinary people claim the same privilege of ignoring harm to others. So-called “free marketeers” claim that privilege for their companies although their economics has long since been discredited. But now lots of people claim the right to behave without concern for the consequences for anyone else. I think Steven Pinker’s book The Better Angels of Our Nature: Why Violence Has Declined, was premature because it looks like we’re going backwards. Violence may have declined, but the Court has now authorized us to carry guns and, though still with limits, backed the ideology of the free-marketeers, the Tea Party, and the guns rights lobby that they can do a lot of what they want.

Liberalism was always about a world where everyone is free, but it was never about irresponsibility. Republicans once believed that we all have responsibilities. Being an American is about more than waving flags; it’s about showing up and helping out.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on August 25, 2020.

Outdated Legal Doctrines

The law of contract, based on the consent of the parties, and the law of torts, based on our obligations when no agreement covers what happened, are fundamental to American law. There is only one problem. Both fields are hopelessly out of date.

Environmental liability

Let me suggest a solution to the fracking problem. The self-styled energy companies want to draw natural gas out of the shale deposits deep below the earth’s surface. Environmentalists like myself believe that fracking will foul the drinking water, damaging a much more crucial resource than the gas they’ll extract.  We also think that if gas is so valuable, they wouldn’t be burning it off where it already comes up alongside oil wells. But that’s another story. Let’s stick to safety. 

The Cost of Non-Regulation

The debate over pipelines in New York, and from Canada through the midwest, has been cast as the value of the natural gas versus the value of the environment, particularly water supplies. We can have one or the other. But not both. Either the environment or the gas.