California Governor Jerry Brown vetoes ski helmet mandate, language bill, and higher cell phone fines: “Not every human problem deserves a law”


Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at

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73 Responses

  1. Avatar Tod Kelly says:

    I’m still not sure I think both issues are comparable, but this is a very good point.Report

  2. Avatar Scott says:

    Moonbeam makes sense for once. I wonder how long his moment of sanity will last?Report

  3. Avatar Katherine says:

    Yes, I agree with his veto of the bills. None of them seem particularly necessary. Considering the proportion of domestic help that is low-income and vulnerable to abuses, requiring that they be paid minimum wage and provided workers’ comp does seem both reasonably necessary and useful.

    My principle is not “the state should intervene in all matters” but that the state should intervene to prevent abuses by the powerful against the powerless. Making sure that workers are decently paid and treated is absolutely part of that, although the bill in question would certainly benefit from some alterations (eg, a differentiation between part-time babysitting and full-time childcare).Report

    • Avatar Tim Kowal says:


      Skiing and snowboarding for children is dangerous without a helmet. Many children do not have the means to purchase appropriate headgear apart from their parents. More importantly, most of them do not appreciate the danger of the activity and rely on their parents to look out for them. There is a strong case that parents who let their kids engage in activity where their heads can come into contact with trees, rocks, ice, buildings, poles, other fixed objects, or other people, at a very high rate of speed and without any head protection whatsoever, are neglectful and derelict of their most basic parental duties. And there is most assuredly a disparity of power in the parent-child relationship by which children bear the consequences of the parents’ abdication of duty. Moreover, in the helmet case, we are dealing with mortal danger. The babysitter law only deals with money.

      Thus, I’m not sure I understand your case that the government should step aside and let parents abuse their children’s mortal well-being, and instead step in only to ensure parents don’t underpay the babysitter. I also note that you do not cite any evidence that the ski helmet law doesn’t “seem particularly necessary,” but that the babysitter law apparently does. Instead, it seems your conclusions on these laws arise from a principle something along the lines of “the state should intervene in all economic matters because otherwise employers as a general matter will tend toward unacceptable abuse against employees.” Is that a mischaracterization?Report

      • Avatar Katherine says:


        I’ve been skiing. It’s expensive. $100-per-person lift ticket expensive, plus ski rentals. If you don’t have money, you don’t go skiing. (Maybe cross-country – but you don’t need a helmet for that). In general, I think that parents are responsible for their childrens’ safety, and that it’s hard to legislate every individual thing that may affect that safety. I am not strongly for or against a helmet law.

        Yes, my view is generally more in favour of state intervention on economic matters than on social matters.Report

        • Avatar Tom Van Dyke says:

          Health/safety becomes an economic issue very quickly when the state subsidizes health care.

          Skiing is racist, BTW. Like tanning beds, it should be taxed.Report

          • Avatar Katherine says:

            Less economic that specifically fiscal, but that’s true, and I understand it as a reason why conservatives in the US would oppose health care. Things like preventing smoking, promoting healthy diets and exercise, and discouraging dangerous behaviours become much more important to the government when they’re directly paying for the consequences. I still think the benefits of public health care outweigh the downsides, though.Report

      • Avatar Kim says:

        I disbelieve that the government should be responsible for Insurance Industries profit margins. Particularly by legislation.Report

  4. Avatar Creon Critic says:

    What do you think of motorcycle and bicycle helmet laws and seat belt laws? In principle, the skiing/snowboarding helmet law seems in line with those to me. Unless the penalties were disproportionately severe, I’d approve of a skiing/snowboarding helmet safety law.

    I gather the language bill stems in part from a (withdrawn) 2008 proposal in the LPGA to suspend players who did not speak English adequately (Chron). A law sensitive to the potential abuses you claim are taking place in the ADA area would pass muster with me.

    As for cell phone fines, I’m in favor of linking fines to wealth like in Switzerland (BBC).Report

    • Avatar trizzlor says:

      My understanding was these laws were passed because the state was spending a lot of money on medical and clean-up services for people who were uninsured and getting into needlessly damaging accidents. This way, the fines are a deterrent and also go into a pool to cover any remaining incidents.

      I would actually be comfortable with a law that fines those who do not wear a helmet/seatbelt only if they are uninsured for the potential accident. Although the obvious criticism is that this type of law would hit the poor the hardest. Though with a health-care mandate it seems like these kinds of recovery laws are no longer needed?Report

      • Avatar Creon Critic says:

        Given the recent post on logical rudeness, I’ll have to admit I support certain kinds of preventive public health measures on their own terms, without reference to the medical costs associated with treating victims. So even given national healthcare, I’d still favor these public health measures. The level of inconvenience to the individual, penalties attached to violations, and disease burden would be the key factors for me in assessing the worthiness of these laws on protective measures like helmets and seat belts.

        But to your point, the California Psychological Association, a group that had been lobbying for the skiing/snowboarding helmet law, references an American Medical Association study on traumatic brain injuries: “the lifetime cost is as high as $9 million for those with severe brain injuries.” (CPA pdf) Unfortunately CPA doesn’t cite the specific study they’re referring to. I’m not sure if that dollar figure convinces you of an ongoing need for these types of laws or not.Report

        • Avatar Tim Kowal says:

          Creon Critic,

          One of the intrinsic problems with freedom is that people will use that freedom to make ill-advised, economically inefficient decisions. Without some limiting principle, then, there will be some conceivable economic-based rationale for the practice of paring back freedom until, finally, it disappears altogether. This has always been the problem with the infringement of economic liberty: there will never be any shortage of economic theories, or any limit to the depth of abstruse economic analysis, such as to obliterate the freedom to engage in any economic transaction whatsoever. Yet I have not seen anything in your comments, whether explicitly or implicitly, that you hold any limiting principle in that respect.

          Is that an accurate observation?Report

          • Avatar Creon Critic says:

            Are we talking about economic transactions here? I had in mind public health concerns. One limiting principle I think I’ve been mentioning has been the proportionality of the penalties incurred for violations. So, setting aside my preference for fines linked to wealth for a moment, a $20 fine for a 16 year old not wearing a bicycle helmet doesn’t seem like such a severe encroachment on freedom to me.

            In addition, I’d add, freedom to do what? Freedom to put oneself at higher risk for costly, life altering traumatic brain injury? Freedom to not wear a seat belt, a potentially life saving measure in accidents? Like I said earlier, the inconvenience to the individual, level of penalty, and disease burden all factor into my perspective on where to draw the boundaries.

            So take helmets, low inconvenience, with a low penalty, and a disease burden that I can’t calculate off the cuff, but your brain being a delicate thing and the risks of mortality/morbidity, time recovering etc… add up to ok to legislate by me. Were the penalty something outrageous, 12 months in jail, a caning, and a $50,000 fine, I’d say that society has gone a bit far for the level of harm incurred. Altogether, I’m not averse to nudging people into doing what’s best for their health (and I’d argue better for the community’s health too).Report

            • Avatar Tim Kowal says:

              I was talking more specifically about your support for laws that limit economic freedom. The “proportionality” principle you offer seems to suggest that, yes, there ought to be a law for every human problem, so long as each of those laws is proportional. If that’s your position, I won’t argue with you. I just wanted to know what it is.Report

              • Avatar Creon Critic says:

                A law for every human problem is not an accurate description of my outlook. I’m comfortable with the state examining the domain you’ve marked off as economic freedom, scrutinizing it for power imbalances, information asymmetries, market failures, human rights violations, and the like. If certain thresholds of harm are met then I think the state should legislate. My bar for state action is clearly lower than yours (and Jaybirds). Unlike the libertarian analysis you linked to in the domestic workers law (the Summers piece at Reason I believe), I don’t think voluntary exchange means privileged from the kind of scrutiny I describe. In my view, voluntary economic exchange is embedded in a broader social context that isn’t absent history and structural features that can do real harm to the vulnerable.

                “Every human problem” gives the impression the state can solve your romantic woes, or tie your shoelaces, or identify where you should find meaning in your life. It is an overbroad description of the state paying close attention to what’s going on in the economic sphere and ensuring that all sorts of abuses and mischief-making aren’t occurring.Report

              • Avatar Tim Kowal says:


                You say, “If certain thresholds of harm are met then I think the state should legislate.” This by itself is not an objectionable statement. The problem is that I haven’t seen any indication that a threshold of harm was met in the babysitter case. You linked to a case study of a woman in New Jersey ten years ago, but there was no connection drawn to any widespread abuse of economic power or human rights in California that would meet any serious “threshold” warranting legislation. This is not to say that none exists, only that it does not seem to have been provided. This is why it seems that many legislators, and folks like yourself, favor lawmaking based on merely hypothetical or imagined abuses, with the apparent objective of ensuring a certain level of nice-ness in society, rather than responding to concrete problems.

                The kid helmet law is indeed a different analysis. Seems to me it would require an even higher threshold to warrant state action, since it intrudes into the parent-child relationship. Do you agree?Report

              • Avatar Creon Critic says:

                I think we’re going to continue to disagree on interpreting the meaning of that Human Rights Watch report. I acknowledge(d) the age of the report and that the methodology means I can not point to a certain percentage of domestic workers being abused. The scale of the problem is difficult to quantify, but I’d say we should not be prevented from using our imaginations. Is California so different from New Jersey? Has the elapsed time resolved the employer-employee power imbalances? (I think I brought this up in response to another commenter in that thread, but if everyone was so kind-hearted and forthright in their dealings we’d need no laws at all.)

                You make a leap from the limitations of the evidence I presented to “lawmaking based on merely hypothetical or imagined abuses”, but we both agree that the abuses Human Rights Watch document did happen. They are not in my imagination or hypothetical cases I plucked from the sky. You would like me to provide evidence of ongoing widespread abuses. I can not meet that bar. I was already satisfied with the evidence of the past (1990s), quite horrendous abuses. (I also brought up a more recent case that was resolved in the courts, which is the method you said you prefer.)

                the apparent objective of ensuring a certain level of nice-ness in society

                That’s probably a really good description of a human rights advocate. I want to set a floor beneath which we do not fall. My conceptualization of human rights is heavily influenced by the post-WWII international human rights regime. It is expansive compared to libertarian or conservative visions.

                intrudes into the parent-child relationship.

                I have tried to distinguish the rationales operating across the different cases we’re discussing, so power-imbalance was the focus of domestic workers, and public health was the focus of the helmet laws. Here, I ask to measure the scope and aims of the intrusion into the parent-child relationship. Like my questions earlier about freedom to be helmet free: Freedom to put oneself at higher risk for costly, life altering traumatic brain injury? Freedom to not wear a seat belt, a potentially life saving measure in accidents?

                Do child car seat laws intrude on the parent-child relationship? I can’t think of a meaningful way that they do. Do you have something broader in mind when referring to this intrusion?Report

              • Avatar DensityDuck says:

                “The scale of the problem is difficult to quantify, but I’d say we should not be prevented from using our imaginations.”

                And there’s that Moral Majority again.Report

            • Avatar Jaybird says:

              We are okay with seat belt laws, right?

              Therefore I don’t see the big deal with mandating salads instead of cheeseburgers, tubby.

              Or are you okay with the idea of five year old children going through the windshield?Report

              • Avatar Creon Critic says:

                Jaybird, I didn’t expect you to read so uncharitably. What here or in my blog post demonstrates my support for mandatory salads.

                From my blog, “Proportional sanctions means that blanket bans need evidence commensurate with their wide scope; severe sanctions, like mass incarceration, require even more evidence to support the argument that severe harms are being prevented.”

                Written here, “The level of inconvenience to the individual, penalties attached to violations, and disease burden would be the key factors for me in assessing the worthiness of these laws…”Report

              • Avatar Jaybird says:

                Creon, in response to a question asking whether you held any limiting principle your answer discussed seatbelt laws.

                We’re discussing where the line ought to be drawn and there are people out there who are talking about how forcing skiers to wear helmets are on this side of it… going to seatbelts isn’t discussing why asking adult skiers to wear helmets is okay.

                Instead of sliding back towards seatbelts, I moved forward to a substance that kills 800,000 Americans every year.Report

              • Avatar Creon Critic says:

                Jaybird, you slipped into my (eminently reasonable, ahem, to me) three part test state mandated salads in place of cheeseburgers. Here are the policy options I’ve read about that public health types have advanced: requiring more information on menus, public health campaigns, taxation, like a minimum price per unit, stopping certain restaurants from opening near to schools, restricting advertising, to children, to certain hours, limiting sponsorship of sporting events, prohibiting toys in children’s meals. I can see some or all of these applying to some particularly unhealthy foods depending on the public health context.

                You prayed in aid the humble cheeseburger, so I must bring up KFC’s 1,228 calorie Double Down burger with buns made of chicken. Do you think the public health authorities should be paying attention to what Americans are consuming, in what quantities, and the longer term health implications? For a broad range of products beyond tobacco? Or is tobacco too part of this, my body, my completely unfettered choice construct as well?

                Creon Critic: Altogether, I’m not averse to nudging people into doing what’s best for their health

                Jaybird: Therefore I don’t see the big deal with mandating salads instead of cheeseburgers, tubby.

                Also when did nudging as I’ve described it become mandating as you’ve described it?Report

              • Avatar Creon Critic says:

                That’s what I get for trusting the Daily Mail who report Double Down at 1,228 calories. The LA Times says 540 calories. In any case, not the healthiest option out there.Report

              • Avatar Tim Kowal says:

                The (probably warranted) disgust registered against the KFC Double Down indicates that we might still be capable as a people of wielding the shame principle to achieve “nudge” away from bad behavior rather than writing legislation for every instance.Report

              • Avatar Jaybird says:

                Do you think the public health authorities should be paying attention to what Americans are consuming, in what quantities, and the longer term health implications?

                I believe that health is a privacy issue.

                It’s one of the reasons that I think that abortion should be none of the government’s business.

                Now a thought experiment for someone who does not believe that health is a privacy issue:

                In the 1980’s, there was a particularly nasty virus that was going around.

                What response do you think is appropriate on the part of the government to contain this nasty, and often lethal, virus? (Note: This virus killed more people than just a Kennedy and Sonny Bono. It killed more people than the entire Kennedy Clan and the Sonny and Cher show combined.)Report

              • Avatar Creon Critic says:

                Jaybird, there’s a privacy dimension, sure. Disclosing health records unauthorized is a serious breach of trust and the law. But is there even such a thing as “public health” in the perspective you outline? Are communicable diseases also privacy issues? What do you think about the Centers for Disease Control and World Health Organization, my understanding is they have staffs devoted to disease surveillance. An unwarranted invasion of patients’ privacy?

                I’m not an epidemiologist, I couldn’t tell you what’d be appropriate for containing HIV/AIDS in the 1980’s. But I’d certainly turn to the epidemiologists for advice about making public policy. I’d imagine there’s some public policy that’d be worthwhile to make – public health campaigns about safe sex, needle exchange programs, and so on. If the disease we’re discussing is beyond HIV/AIDS and epidemiologists said, Governor-for-a-Day Creon Critic we believe this is an emergency and need a quarantine of such and such area now I’d be hard pressed to hold up my hand and say: No can do, health is a privacy issue.Report

              • Avatar Jaybird says:

                So wearing a helmet is a public health issue but wearing a hat* is a privacy issue?

                * this is a slang termReport

              • Avatar wardsmith says:

                Don’t never goin to do it without the fez onReport

              • Avatar Kim says:

                I maintain that the state should not be responsible for keeping insurance premiums low, or ensuring insurance companies bottom lines.
                It is perfectly reasonable for an insurance company to insure people based on whether or not they actually wear seatbelts.
                Am I okay with 5yrolds going through windshields? No, but if your parents are that stupid…Report

              • Avatar trizzlor says:

                Kim, it’s not always the insurance company that comes to scrape someone off the pavement because they didn’t click it; nor is it always an insurance company that pays for the skin grafts. We’ve accepted the role of the state in providing emergency medical care and cleaning bodies off the highway. If this is a service you benefit from then it’s perfectly reasonable for the state to charge you extra (via a fine) when you choose not to perform basic tasks that would minimize their costs. If it’s really significant, the market would spawn an insurance variant that covers these fees as well.Report

              • Avatar Kim says:

                … last I checked, it was for profit or “not for profit” (see UPMC) hospitals paying for emergency medical care. Do they get reimbursed by the government?Report

              • Avatar North says:

                Either they get reimbursed or they pass the costs of deadbeat patients on to all of their paying patients via higher bills.Report

              • Avatar Kim says:

                North, yes, indeed, passing it on to the paying patients. Therefore people who don’t use the medical system at all, don’t see the cost.Report

              • Avatar Patrick Cahalan says:

                > If this is a service you benefit
                > from then it’s perfectly reasonable
                > for the state to charge you extra
                > (via a fine) when you choose not
                > to perform basic tasks that
                > would minimize their costs.

                Only if you agree with the premise that the service ought to be provided in the first place, and many people don’t.

                I actually don’t have much of a problem with nanny-statism of the type, “We will provide emergency medical care to everyone who needs it.”

                I’m not terribly fond of the corollary you put here.

                If you think that emergency medical care is a common good, all well and good. If you think emergency medical care cost correction is a common good, that’s another issue altogether.

                You rapidly get to the case where anything is a common good.Report

              • Avatar Jaybird says:

                When we have reached the point where a can of Coca-Cola is under the umbrella of “products that give you a benefit partially provided by government subsidy”, we may have gone too far.Report

  5. Avatar Robert Cheeks says:

    I need a good Cohiba, two or three fingers of Maker’s Mark on ice, a Double Whopper with super sized fries and any commie-dem who tries to stop me needs/requires two rounds of wadcutters in the chest, in the name of freedom and liberty.Report

  6. Avatar Burt Likko says:

    I remain somewhat amazed at Brown’s comments. Not at the vetoes, but rather, the idea that the government is not a vehicle to assist people in preventing or resolving problems nor ought it to be.

    And at the brevity of the veto message. It’s a remarkably efficient and effective use of the language.

    Good for you, Governor Brown.Report

  7. Avatar Alan Scott says:

    A few things:

    I certainly appreciate Brown’s sentiment that not every human problem deserves a law.

    I don’t actually find the helmet law objectionable. Assuming it mirrors the terms of the bike helmet law (warning on first offense, $25 fine subsequently), it doesn’t represent an unreasonable imposition by the state.

    Ultimately the question of “Where do you draw the line?” isn’t one with an easily articulated answer. Instead, it’s a “I know it when I see it” kind of thing. Is anyone actually outraged by seat belt laws or helmet laws? Or do we just dislike them abstractly when they fail to conform to our principles of the proper role of government?

    Contrast that to the proposed cellphone law. I strongly suspect that–for a variety of reasons–the fines in question fall disproportionately on the young and poor. As someone who fits relatively well into that category, I can look at the proposed fines and say “hey, that’s a bit harsh”. But that’s the same sort of gut reaction “I know it when I see it” response that says a $25 snowboard helmet fine is okay.Report

  8. Avatar trizzlor says:

    Tim, your threshold for government regulation has been the evidence of substantial abuse – if abuse surpasses X it is reasonable to curtail it. The alternative presented here (if I’m reading CC correctly) is that this threshold should also be dependent on all of the costs associated with punishment – if abuse surpasses X and/or punishment is less stressful than Y it is reasonable to curtail it. Both positions are essentially empirical and don’t seem all that different in spirit. They do, however, differ significantly from what Gov. Brown is saying: that certain problems should not have a government solution regardless of their impact on society. Is Brown a fellow-traveler because he’s walking next to you or because you’re walking together?Report

    • Avatar Tim Kowal says:

      Gov. Brown’s terse veto statement cannot be taken as a full statement of his political philosophy. But I would reject the suggestion that my position is essentially empirical. I cannot subscribe to a theory of government in which all our choices are reduced to a crib sheet and then regulated, penalized, mandated, or outlawed based on the conclusions of government actuaries. Man is not a sprig in an organ vat, as Dostoyevsky said. Law should not be made to replace the need for virtue and social norms and good sense, and if once we’ve come to depend on it for such, we will have already ceased to be a republic.Report

      • Avatar DensityDuck says:

        One man’s good sense is another’s foolish recklessness.Report

      • Avatar trizzlor says:

        I don’t see in your argument any explanation for how you are not an empiricist. Rather, it seems like you’re uncomfortable with the worst-case scenario and simply declare yourself not to be one. Am I misreading your position that regulation requires a significant pattern of abuse? Can you imagine the converse where abuse is demonstrated and significant but is still off-limits to regulation (let’s avoid abuse of one’s self for now)?

        If your position is – abuse surpassing X can be curtailed except for some classes of abuse {a .. z} – then certainly you are closer to Gov. Brown than to the Creon Critic. Otherwise it seems like you prefer his terminology but not his methods.Report

      • Avatar Creon Critic says:

        Tim Kowal, the original post framed the discussion in terms that guided it along certain lines – given some commenters’ support of domestic workers laws, what do they make of these three recent vetoes? Asking the decision rules and later what theory underlies them – is the underlying theory “a law for every human problem”? The original frame contributed to a discussion centering around regulations and mandates, or as you put it “our choices [as] reduced to a crib sheet and then regulated, penalized, mandated, or outlawed based on the conclusions of government actuaries.”

        I’m curious about your decision rules now, because you didn’t reveal them, though this comment definitely touches on them. You’re hoping for (and counting on) “virtue and social norms and good sense” to guide society away from the abuses and public health problems. But I’m still left wondering how that idea applies to the topics we’ve been discussing.

        So skiing/snowboarding child helmet laws are out. What do you think of seat belt laws – buckle up or get a ticket? Motorcycle/bicycle helmet laws – wear one or get a small fine? Is your view any different if the helmet law is aimed particularly at children? What do you think of child car seat laws? Also intruding on the parent-child relationship? The argument over the HPV vaccine, should the state require vaccination for 12 year old girls with an aim of reducing cancer in later life? Or also an intrusion into the parent child relationship?

        Do all these public health cases (and all my fretting about disease burdens) fall under the freedom you described earlier as “freedom to make ill-advised, economically inefficient decisions”? What would you say to the proposition that the US is both a republic and a 21st century welfare state*? Is the disagreement about boundaries or whether the US should be a welfare state at all?

        * welfare state in the precise sense, “concept of government in which the state plays a key role in the protection and promotion of the economic and social well-being of its citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth, and public responsibility for those unable to avail themselves of the minimal provisions for a good life. The general term may cover a variety of forms of economic and social organization”Report

  9. Avatar David Cheatham says:

    I think what a few people have failed to notice is that small fines and taxes are how we, as society, registers disapproval. Society is not small enough that we can give people a ‘good frowning’. Instead, we have the police stop you and give you a ticket. (And some people have also failed to notice that skiing is an activity that almost entirely takes place inside of a specific business set up for that purpose, so requiring helmets will simply mean you get handed a helmet when you show up at the ski lodge, and they won’t let you on the lift without it.)

    There seems to be some sort of disconnection in libertarian thinking about the purpose of misdemeanors. Their purpose is not to punish people, or to protect other people, their purpose is to say ‘We, as society, think you need to stop doing that.’. Aka, you do need to wear a helmet, you do need to buckle your seatbelt, you do need to stop parking in handicap places. We will keep annoying you until you do.

    This is a _replacement_ for how the world used to work, in small villages, where people used to know who you were.

    And, admittedly, abuse of police powers makes me hesitant to give them any more authority. But the correct solution is to stop them from abusing their powers.

    Likewise, some stuff isn’t really any of society’s business. It’s not really anyone’s business whose sexual partner is whose, or what color bookcases you have in your house. This is a great advantage of having the shaming ‘formalized’, we can actually change it, instead of waiting 60 years for all the old busybodies to die off.

    And there’s a specific problem of misdemeanor creep, where we take misdemeanors and turn them into felonies when they almost certainly shouldn’t be. For a random example, public indecency laws should be misdemeanors, not the ‘sex felony’ we’ve turned them into, which is worse then normal felonies. Likewise, drug use should be a misdemeanor, if that.

    But, again, the correct solution something else, specifically to stop this ‘tough on crime’ nonsense. We need to be tough on _assailants_, tough on people who run around hurting others. We don’t need to be tough on misdemeanors, which is _supposed_ to be how society wags its finger at people.

    (Incidentally, I know there’s a problem with misdemeanors and the level of punishment for the rich vs. the poor. But that’s an issue for another day.)Report

    • Avatar DensityDuck says:

      So what you’re saying is that everyone who says “this is in the interest of public safety” is a damn liar, because they really should be saying “this is how the public thinks you ought to behave”.Report

      • Avatar David Cheatham says:

        I am confused as to how ‘public safety’ and ‘how the public thinks you ought to behave’ can’t be the same thing.

        The public is opposed to all sorts of things that endanger it, and thinks you ought not do them. (In fact, that’s the most consistent thing the public opposes!)

        I was just making the point that ‘Ought’ is just less than ‘must’. Felonies are things you ‘must’ not do, so we oppose them very much, and will lock people away for them. Misdemeanors are supposed to be simply things you ought not do, and basically are public disapproval.Report

        • Avatar Jaybird says:

          Like gay marriage?

          Or is that one of those things that is obviously a privacy issue and we should not allow “what the public thinks” to get in the way of the Human Rights that The People Ought to Retain in the face of Moral Scolds?Report

          • Avatar David Cheatham says:

            Well, yes, we could stop gay marriage as a way to frown on homosexual relationships. (Although this point in time, it is questionable whether society is generally against them.)

            Except that part where we passed a law decades ago banning discrimination based on sex. You know, the law that should have instantly remove any sort of gender requirement for anything, including marriage.Report

            • Avatar Jaybird says:

              Well, yes, we could stop gay marriage as a way to frown on homosexual relationships.

              Every time it has been put up to popular vote, “we” *HAVE* frowned upon gay marriages.

              Except that part where we passed a law decades ago banning discrimination based on sex.

              Every time a (State) Constitutional Amendment has been put up for a popular vote, “we” have voted it in. A Constitutional Amendment cannot, by definition, be unconstitutional. A law certainly wouldn’t trump the Constitution. The Constitution would trump the law.

              Additionally, there were plenty of laws passed decades ago. Tons. Tons and tons. I’m pretty sure that I could cherry pick a handful that would get you to point out how disgusting the laws are and how we have Constitutional Amendments protecting the Human Rights of the individuals involved. (And good for you!)

              I’m just wondering how you’ve squared this particular circle.Report

              • Avatar North says:

                I’m working on it in MN Jaybird. I’m earnestly hoping we can put a stop to it here.Report

              • Avatar Jaybird says:

                Watch out for the people who argue that Rights are seated in the Individual.

                They ruin everything.

                Just yell stuff about returning to a gold standard at them until they go away.Report

              • Avatar David Cheatham says:

                Erm, not only would Federal law trump both state constitutional amendments and state law, there’s actually a pretty clear Federal Constitutional argument it’s unconstitutional.

                Specifically, the Supreme Court has argued that ‘Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival’ in Loving vs. Virginia. Laws that effect a ‘fundamental right’ are under strict scrutiny. Ergo, the law must:
                1) Be justified by a compelling governmental interest.
                2) Be narrowly tailored to achieve that goal or interest.
                3) Be the least restrictive means for achieving that interest

                It pretty much automatically fails all those tests.

                However, let’s be charitably and pretend marriage isn’t actually a fundamental right. It’s still gender-discrimination, so is under ‘intermediate scrutiny’. And thus, it must simply:

                1) further an important government interest in a way that is substantially related to that interest.

                Remember when I talked about ‘shaming’? Yeah, that’s not an ‘important government interest’. The government doesn’t get to shame some people and not other people based solely on their gender.Report

              • Avatar Jaybird says:

                There was, once, a bunch of argument over whether Federal Law did, in fact, trump State Law.

                Something something interstate commerce.

                The people who believed in that sort of thing are all dead now, though. Dead or senile.Report

              • Avatar DensityDuck says:

                “A Constitutional Amendment cannot, by definition, be unconstitutional.”

                Except in California.Report

        • Avatar Burt Likko says:

          Misemeanors can and do result in incarceration. Loss of liberty is qualitatively different than public disapproval.Report

          • Avatar David Cheatham says:

            Misdemeanors usually have the option of paying a fine or jailtime, and that entire system needs to be changed, as that is pretty clearly set up to let the rich do whatever they want, and send the poor off to jail. So the problem isn’t ‘jailtime’, the problem is that that’s only the problem for the poor.

            I’m tempted to recommend we ditch both fines and jailtime, and bring back putting people in stocks. No throwing things or harsh positions, but people who commit misdemeanors should have to sit under a sign saying what they did, in the courthouse, for a specific number of hours. But a lot less hours than they’d spend in jail. (In fact, an off the cuff ratio would be an hour a day. Instead of 30 days in jail, thirty hours sitting at the couthouse.) We can have it to some extent where people can work it around their job if they have only a few hours.

            This is sorta what community service is supposed to be, but that’s more ‘paying back’ instead of ‘shaming’.

            And a lot of stuff would be almost trivial. Having your kid ski without safety equipment? An hour to sit there and think about what you did. It’s almost more work for you to set the thing up and go there then to do it. The point is to say ‘Yeah, don’t do that anymore, you idiot.’.Report

        • Avatar DensityDuck says:

          “The public is opposed to all sorts of things that endanger it, and thinks you ought not do them.”

          Yes, like drug use.Report

    • Avatar Kim says:

      … you assume society no longer functions in a small village sort of way. I postulate that is not a homogenous feature of our society, and that it depends on where you are. (I also postulate that republicans and democrats vary to some degree based on this, and the fundamental efficiencies of scale inherent in properly designed cities).Report

      • Avatar David Cheatham says:

        No, I presume that people _can function as if_ they are no longer in a small village. Whether or not most people operate in this matter, or what the distribution is, I have no idea.

        All I know is that people can arbitrarily decide they will not, or will no longer be, operating within their previous small village, so can utterly escape any harmful repercussions to their behavior.

        If people can ‘opt-out’ of punishment, it doesn’t work so well. It keeps punishing the people who act in good faith and do minor things, but doesn’t do a damn thing about the person who doesn’t actually live there, or perhaps does live there but is sustained by out-of-area employment and shopping and whatnot, so doesn’t care what anyone local thinks about him.Report

  10. Avatar DensityDuck says:

    It does kind of seem to me that the insurance companies are the ones who should care whether or not you wear a helmet when you ski. But we’re apparently supposed to think that insurance is an entitlement and not, y’know, insurance.Report