Helmet laws, cycling laws, and the nature of precedent
Topics: Misc
11 Oct 1990
From:
One of Chau-Wen's contentions, as I understand it, is that the
government, other than the judicial branch, does not function by precedent
to any significant degree. And to the trivial extent that it does, we
should not quell from passing good legislation for fear of bad legislation
to follow from those who (mis)use an argument of precedent.
I think the first point is wrong and second dangerously deceptive.
Let me address the first point with a couple of examples. The Texas
legislature is considering a bill to ban cyclists from roads without
shoulders (apparently this doesn't apply to city streets). The reason is
not that cyclists interfere with traffic, a true statement, but that it is
for the safety of cyclists, an irrelevant statement. With helmet
laws and seat belt laws, presumably good things because they save taxpayers
money, the principle of denying certain uses of the roads was created.
These uses are not denied in the interest of assuring the smooth operation
of highways but solely in the interest of 'protecting' someone from
himself. The legislature has slowly slipped from protecting the taxpayers
via helmet laws into using the precedent to deny someone the right to risk
their own health. Why stop there? Let's ban motorcycles. Let's ban small
cars (they are more dangerous than large cars). Let's ban sport cars.
Let's lower the speed limit to 35, blah, blah, blah. We won't, not because
the former things are reasonable and latter not, but because the latter
will offend enough people to generate significant political opposition.
The second example is drug testing. Initially drug testing was only
permitted for safety critical jobs (whatever that means). But it didn't
take long before the precedent was used to extend testing to everyone that
could be covered. As a student at a university where someone else
receives money from a government agency, I'm in principle subject to
testing. I remember clearly when the Houston Post whined about how we must
make an exception [to the Fourth Amendment] and test police officers since
their job was *so* important. It wasn't a year later until the same
editorial column said that since police officers were being tested, all
city employees should be, it was the same thing after all. The government
works by the same reasoning, it just isn't as clearly exposed in print.
The third example is minority/civil rights legislation. We started with
the idea of giving blacks some measure of equality, but it wasn't long
before everyone jumped on that bandwagon and demanded a handout for their
special group for its special reason. Let me quote from something going up
on the bulletin board from the University of Michigan "any behavior, verbal
or physical, that stigmatizes or victimizes an individual on the basis of
race, ethnicity, religion, sex, sexual orientation, creed, national origin,
ancestry, age, marital status, handicap, or Vietnam-era veteran status..."
is forbidden.
Comparable worth for women, though it probably won't become law, is being
argued from the precedent of quota laws which were argued from the
precedent of anti-discrimination laws which were argued from the precedent
of removing discriminatory laws. Each of these steps seemed or seems
perfectly reasonable to the legislators considering them.
I have even heard religious kooks trying to use the reasoning of
civil rights to keep people from publicly saying what a bunch of
idiots the fundies are. To the extent that speech is prohibited
in the interest of civil rights, I'm sure these people will get
protection too. Under the implied principle in this sort of
law, these people actually should be covered. That is the
ridiculous conclusion. They are deserving of much criticism.
At the same time, we should let people criticize blacks.
Let me address the second half of Chau-Wen's statement. I would agree with
it as simply stated, but that would obscure two very different
interpretations of what it means. Chau-Wen would judge the law on its
face value when making this decision. I would judge it based on a full
application of its reasoning, even when that it isn't originally intended.
The problem is that by passing a law one often passes far more than was
intended. The inclusion of specific language does not limit the
implication of the law. Once new philosophical ground has been
breached, the deed is done.
When the first employment related anti-discrimination law was passed, it
did not say specifically (for instance) that 'because blacks are unique in
American society for having once been enslaved and they are readily and
trivially identified and segregated and they do not have means at their
disposal to change this, it is appropriate to attempt to remedy ...'
Instead it said (in effect) 'blacks have lower socioeconomic status than
whites and that should be corrected.' Such a law doesn't say just blacks
but it implicitly says that lower socioecomonic status is something that
should be corrected. Such a prinicple once established can't be limited
to simple race issues.
Similarly, in the motorcycle helmet law case, the law did not say (for
instance) that 'helmet-less motorcycle riders impose a direct tax cost on
society of $10 million / year and the amount that riders would pay to
maintain this right is only $5 million / year; therefore helmets are
required.' Instead it said (in effect) 'helmet-less riders sometimes hurt
themselves and indirectly cost taxpayers more money; therefore helmets are
required.' Again, this law says more than it appears to. It says the
government can protect people from themselves if their behavior could
somehow cost society money. This logic could just as easily and correctly
be applied to the other examples that I gave (e.g. sports car).
Some would say that this absurd conclusion would not be reached because
society would reach some democratic consensus as to what was reasonable in
terms of trade-offs and that society should work that way. I don't agree.
What is happening is that the majority is abusing a minority that is not
sufficiently large or well organized enough to enter the lobby fray. There
is nothing reasonable about these sorts of extensions. The logic is just
as good in the large case, sports cars, as it is in the small case,
bicycles. The fallacy can simply be overlooked in the small cases. We
should take every law to its logical conclusion so that its flaws can be
clearly seen. We seem to have the worst of both worlds where we apply
precedent far enough to do real damage but not so far as to see the
absurdity of the original law.
Before you respond, I want to point out that I agree with some of the
issues I have used above and disagree with others. Except for the
penultimate paragraph, I'm simply trying to address the issue I raised in
the first paragraph.
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