It's argued that the government somehow has an interest in regulating you from activities which you otherwise consent to doing: suicide, not wearing a seatbelt, doing drugs or, having someone else chop you up and store you in a freezer. These are activities which primarily only affect your own person, and, as such, gov't regulation seems like an intrusion into personal autonomy.
Under what principle can the government do this?
One, is it because some of these activities have negative social externalities? That is, they affect other people in their indirect consequences? E.g. not wearing a seatbelt results in more serious injuries and thus more burden on the public health system.
Yet this argument fails insofar as you would then have to weigh the strength of those externalities against the individual's autonomy. For seatbelts, if the person pays for his own health insurance, perhaps the externalities are minimal. Suicide, too, may not be that bad if you had no family to get depressed over you.
Two, alternately, is it because policy makers believe that individuals have limited rationality, and do not know what is in their best interests? Certainly the German cannibalism case, or suicides in general, apply here. But so does doing drugs or not wearing seatbelts. Government here is being paternalistic, perhaps in a good way, in saying that somethings, while pleasurable in the short run, are bad in the long run. And certainly cognitive psychology shows that people are extremely bad at making the "pleasure now versus pain later" cost-benefit calculations.
Or finally, is it just because the gov't, as some sort of guardian of societal mores, finds some activities so morally reprehensible that it feels itself as having a duty to prevent them?
It seems to me a lot of the law on pornography turns on which one of these three explainations you take: Is it bad for society? Bad for the individual consumer? Or just bad in general?
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The email convo w/ prof about it. Read from bottom up.
Very good. Your conclusion about the different possible considerations for constitutional and political decisions is important. I look forward to pursuing it, but not by email, as my hand injuries limit my typing. So let's sit down and talk about it sometime.
Good night! Philip Hamburger
> Prof. Hamburger,
>
> Thanks for the quick reply. To answer your concluding question, I wonder
> if
> such rules protective of individuals are always justifiable, or whether
> they
> should be subject to some higher level of scrutinty. Let me take seatbelt
> laws and suicide laws to illustrate:
>
> For seatbelt laws, disregarding any externalities argument, governments
> may
> justify it as a minor infringement on individual autonomy, which is based
> on
> verifiable data of higher survival rates. This is a behavioral psychology
> argument: people don't fully appreciate the risks of not wearing the
> seatbelts, so tend to engage in unnecessarily dangerous behavior of not
> wearing seatbelts. Government steps in, and more people end up objectively
> alive and happy.
>
> For suicide laws, the opposite applies. Individuals may have perfectly
> good
> reasons for wanting to committ suicide, whereas the government has
> virtually
> no data about any benefit to either the individual or to society. Think
> for
> instance of assisted suicides: the individual knows exactly how much pain
> he's in and his chances for survival, yet the government steps in to make
> an
> a priori decision banning suicides. Another legitimate reason, a bit of a
> stretch, might be the Japanese custom of hari kari - ritual suicide. It
> may
> be perfectly reasonable for that individual to desire death, however
> objectionable it is to our Western thinking.
>
> I'm not sure that the line is always so clear cut as I've made it to be,
> but
> I do wonder whether the government power for protective behavior should be
> merely a political matter, subject to the mores of the majority, or
> whether
> there should be some Constitutional limitation.
>
> Cheers,
> Chang
>
>
> Dear Mr. Liu,
> Many thanks. Your comments are very thoughtful. You are right
> that
> there is more than one possible layer of analysis here. The
> constitutional
> analysis could rest on the Court's doctrines, but more substantively it
> might get to the different roles of the state and federal governments.
> The
> former may have a broad range of power, but what power or interest can the
> federal government have in speech or the press, other than in the Post
> Office, proprietary and secret information, and government support for
> various viewpoints. Surely, to use the commerce clause to treat speech
> and
> the press as trade subject to federal regulation is a dubious enterprise,
> whether historically or more abstractly.
> In addition, as you note, there is a philosophic point about
> individuals in relation to government. This is very appealing, and yet
> how
> can it be reconciled with the wide range of legislation protective of
> individuals--most clearly, suicide laws? If you accept these, must one
> give
> way to a wide range of intrusions on individuals?
> Best wishes,
> Philip Hamburger
> Cannibal
>
>
>> Prof Hamburger,
>>
>> Thank you for your answer!
>>
>> At least for the Federal gov't, I would think its powers to regulate are
>> limited by the justifications it gives. If we take the commerce clause's
>> substantial effects test seriously, the Federal power to regulate only
>> extends to actions that have inter-state externalities. Under the broad
>> construction that that tests has, of course, just about everything has
>> some
>> externality or other, and nothing is prohibited, but it does illustrate
>> the
>> proposition that justifications matter.
>>
>> Hence, many of the pornography cases we've studied are concerned with the
>> mailing of pornography, or the advertisement, or the sale, or perhaps the
>> production (in the case of child pornography). But government for the
>> most
>> part has refrained from regulating consumption, which, to me, is a very
>> private and individual act.
>>
>> But I actually was thinking, on a deeper level, when one thinks about the
>> rationale of a liberal government, namely the maintenance of social order
>> among otherwise autonomous individuals, and also the idea that the people
>> did not delegate all control of their autonomy to government, it makes
>> less
>> sense for government to regulate matters that affect "only" the
>> individual.
>>
>> It may make sense, for instance, for a smoker to say "here, government,
>> please regulate smoking because I can't control my own addiction and I
>> need
>> a law to restrain me." But if one is to go that step and say that people
>> have ceded autonomy over those types of private actions to the
>> government,
>> then perhaps that is a rationale for government that we need to be more
>> explicit about. (I think here of the Singaporean "nanny state".)
>>
>> Cheers,
>> Chang
>>
>>
>>
>> Thanks! Very good questions! Might a legislature have a general power
>> to
>> regulate--the particular justifications for any particular regulation
>> being
>> matter for it to evalualate? If so, are the questions of justification
>> really matter of constitutional law or legislation? Moreover, which
>> governments would have the general power? The states? The federal
>> government?
>>
>> Philip Hamburger
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