Monthly Archives: October 2014

Doesn’t the Constitution Guarantee Me The Right To Do Whatever I Want? Not Quite.

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Without some rules, these two might kill each other.

My three year old really, really, likes to annoy her five-year old sister. While this often takes the usual route of stealing a favorite doll or knocking down Cinderella’s Lego castle that just took an hour to build, sometimes things get a bit more, um… violent. I don’t know the laws of physics that allow it, but somehow Annie can pin her older sister to the ground, sit on her chest, and yank the bejeezus out of Olivia’s hair. Inevitably the tears flow from both. Olivia as she stares at a clump of her own blond hair on the ground, and Annie as she gets hauled off to time out. Listen: We are pretty lenient parents, but we’ve got some basic rules. “No hurting, maiming or trying to kill your sister,” is one of them.

Our home-based legal system is sort of a microcosm of real life. While, I don’t usually fine or imprison my kids when they break a rule, they do get punished in some way – even if it just means sitting out a round of a game. The way we govern grown ups isn’t all that different.   There are some basic rules of order we all agree to abide by (mostly). In order to be allowed to work and play as a member of society, and to reap the benefits of being part of a community, we each give up some individual rights. I may think your new dog is a nuisance but I’m not going to kill him. For one thing, it’s probably not legal and for another, word might get out and then I will be the pariah of the neighborhood. I’ll have to sit out of the game.

Rules are necessary to ensure the good –even the survival – of society. Our actions are constantly being subject to various rules and regulations, without which we would soon be in a state of chaos. If we all tried to drive through the light, regardless of whether we had a green or red light, we wouldn’t get very far because we would all be piled up in the intersection. We put age and ability limits on driving for the same reasons – we simply cannot let anyone who wants to drive go out on the road. Not only are they a menace to themselves, but to you and me as well.

As a lawyer, I hear about dumb laws all the time. I get it. In some places in Ohio, you can’t buy wine on Sunday. But you can buy beer… because beer never gets anyone drunk on a Sabbath? It is a law that doesn’t make any sense. On the other hand, I pretty much never hear complaints about laws against murder. Or theft. Or kidnapping. If anything, most people want those laws, just even stronger than they already are. Laws keep people in order. And most of us agree that it’s fair to exclude murderers from the proverbial ball game. We send them to jail to punish and prevent future bad conduct.

A lot of us have no intention to commit murder, so there is less complaint against those rules. It’s the laws that impact our own individual freedom that tend to get people riled up. (Hence, my anger at the Sunday wine sales.). Take mandatory motorcycle helmet laws, for example. In states with these laws, no one, who otherwise qualifies, is prohibited from riding a motorcycle – you just have to wear a helmet in order to do so lawfully. Oh, now my motorcycle- riding friends are mad. I am an awesome biker. Why should the government get to ruin my fun and freedom by making me wear that stupid helmet? It’s a violation of my constitutional freedoms!

Actually, it is not. Contrary to some oft-cited beliefs, there is no constitutional right to do whatever you want. The 1st Amendment doesn’t promise you the right to cause mayhem and injury by yelling “Fire!” in a crowded theatre and inciting panic. You may have a constitutional right to “assemble,” but that doesn’t mean anywhere and in all places. Our judicial system has long given states permission to create laws that protect the health, safety ands welfare of the community – even at the expense of our individual rights.

Mandatory motorcycle helmet laws are just one example of this type of state “police power” to regulate public well-being. Even though a motorcycle rider may feel its just him, his his bike, and the open road, his decision not to wear a helmet hurts everyone else. When an SUV plows into Mr. Biker, his un-helmeted head is far more likely to be seriously injured than a helmeted one. And who comes and picks him up? The ambulance services – the ones paid for by your local or state government (ahem…your tax dollars). His weeks or months long hospital stay might be at the public expense. And if he is now permanently disabled from his head injury, he will be taking public assistance for years.   He had his moment of freedom, but all of us are now paying the price.

Mandatory vaccination laws are no different. Except in some very rare situations, no one is forcing anyone to submit to vaccination. I know of no (legitimate) claims of an individual being tied down and forcibly injected (hello? There are laws against that). But the state can make a person’s participation in some activities – school, employment – contingent on having up to date immunizations, or at the least, valid exemptions to those laws. It’s really and truly not about punishing the unvaccinated family. It’s about protecting the rest of us.

When Mr. Biker chose to ride without his helmet, his decision impacted lots of people but mostly from a financial standpoint. The state’s right to protect against vaccine preventable disease is even more pronounced. Like a helmet, the vaccine is intended primarily to protect the individual. But the failure to vaccinate can impact more than finances (though there is that too). People who choose not to vaccinate are freeloading immunity off the rest of us who are vaccinated. But if enough kids in a community aren’t vaccinated, and even one heads off to school with the measles, now you have a potentially serious health situation. And because vaccines are not always 100% effective, even the kids who are vaccinated are now at risk. This is what the state is trying to head-off with mandatory immunization laws.

My point is this: we need some laws in order to keep functioning as a society. When it comes to certain personal decisions – helmets, vaccines – your individual choice affects more than just you. You can make the choice – that is your right – but then don’t be surprised if you get asked to turn in your cleats or sit out a game.

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