On Liberty: Required Vaccinations, Calorie Counts, & Food Pimping

            In 1970 or thereabout — anyway, sufficiently long ago for the relevant statute of limitations to have run out — I told the truth to an agent of the US Federal Bureau of Investigation and probably misled him.

            I told the agent, "Mr. N__ is a very patriotic young man," which indeed he was. When he entered the University of Illinois, he didn't just take ROTC in the standard varieties most of us took, since required to, but entered Marine ROTC and had every intention to go off to Southeast Asia to fight for his country. As time and the war wore on, and as Mr. N__ studied US warfare in Vietnam and environs, he came to believe first that the war was ill-advised, then that it was wrong, and finally that it was an unjust war and immoral — and Mr. N__ became a highly active participant of the anti-War movement.

            Indeed, Mr. N__ was more active in the movement than I and, let's say, unfanatical in his devotion to nonviolence. He also rendered important services that I got to observe when he and I were marshals at a demonstration and one of our local Anarchists or outside provocateurs needed to be kept moving along and called Mr. N__ and me "Peace pigs."

            (Yes, we had our troublemakers in the Movement, and the Powers that Were supplied provocateurs, and even the Peace Movement occasionally needed some muscle. And Mr. N__'s mere assertive presence was enough to keep the moment peaceful.)

            Mr. N__ loved America and served it, so he was a patriot.

            And so I affirmed to the FBI guy, in full knowledge that I spoke the truth but probably not a truth that the FBI leadership, at the time, would accept.

            A lot of that was going on 1970 or thereabouts: some really serious disagreements on definitions of words like "patriot" as in whether a patriotic young American man resists his government when his government does evil or keeps his mouth shut, submits to the draft, and fights when he's told to.

            I state the matter as I would have back then and will state it even more emphatically now. America lost the Vietnam War. We're still here. We've got problems, but we're doing okay, and we'd be doing better if we had told the French to go to hell in 1946 and never fought in Indochina. Therefore no vital interests of the United States were involved in the war: had vital interests been involved — some "existential threat" as politicians say nowadays, there would have been horrible consequences when we lost. Q.E.D.

            So Mr. N__ was a patriot because he acted out of love of his country, and he was right.

            You do not, however, have to believe that to accept the point of the story for this blog post; you may indeed believe that Mr. N__ and I and the other peaceniks were traitors. The point is that argument over key words was and remains important, words like "patriot" and "traitor."

            A decade and a bit before I talked to the FBI agent — before the 1960s and "the Movement" and the US forms of "The Troubles," William Arrowsmith of the University of Texas suggested that defining key terms was crucial during periods of stress in ancient Athens and that the great Greek tragedies could be analyzed as each defining a key term contested (as we'd later say) in Athenian culture. So Sophocles's Philoctetes was about defining timē ("price," "worth," someone's value) and Euripides's The Bacchae was an examination of sophia, "wisdom."

            There's a brief shtick I heard among country-western singers that starts with the rhetorical question, "'Imitation is the sincerest form of flattery?'" and responds to it, "Shee-ut! Not while there's outright theft." And I flattered Arrowsmith and a tradition of Shakespeare scholars in writing a dissertation in the late 1960s into 1971, mostly on defining "wisdom" and "folly" in Shakespeare's major mature tragedies, with glances at other key words like "Nature" with a capital and "nature" without, "man" and "manly," and "traitor."

            Recently, I've been re-listening to Albion's Seed by David Hackett Fischer (1989) and Colin Woodard's American Nations: A History of the Eleven Rival Region Cultures of North America (2012). Woodard's work stems from Fischer's, and both look at competing cultural values, including meanings of some key words such as "order" and, what I've finally arrived at, liberty.

            When we were looking over the "unalienable rights" part of the US Declaration of Independence, one of my students noted that Thomas Jefferson, slave owner, was "a simple hypocrite!" I thought for a moment and said, "Not simple." Jefferson, as a well-educated and very bright person, was a hypocrite, if a complex one, in claiming liberty while owning slaves, but his contemporaries in the Virginia 1% ca. 1776 weren't hypocrites, at least not on this issue.

            It's safe to assume that most Virginia aristocrats didn't think enough about political issues to be hypocrites, and those who did think thought in terms of "republican liberty" of the old Roman sort, where owning slaves was part of aristocratic liberty. Owning slaves gave the elite freedom from servile manual labor — significant word, servile — and embodied the independence and power to order about one's inferiors, plus the authority where those inferiors usually obeyed and the power to coerce them when they got uppity.

            Liberty meant elite independence from interference from above, and the ability to enforce one's will on those below oneself in the hierarchical order of things.

            "Liberty" (libertas, classic liberty) was not a simple word.

            "Liberty" still isn't simple, although aristocrats nowadays usually have the brains not to call themselves aristocrats and to condescend more politely to people they consider their inferiors. Nowadays liberty gets most contested in claims of freedom from government regulation in such matters as sex, religion, commerce, and dealing with children.

            Dealing frequently in blog posts with sex and religion, I'm going to restrict myself to a couple issues on commerce and kids, and I'm going to start with a statement on liberty that's become pretty standard for traditional American liberals, conservatives, and libertarians. Indeed, when I first read it at age eighteen — as soon as I'd puzzled out the old-fashioned language — it seemed to me a commonsense statement of the obvious. This is from John Stuart Mill's classic 1859 essay "On Liberty," where, he says,

The object of this Essay is to assert one very simple principle [….], that the sole end for which mankind are warranted […] in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any [adult] member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. […] The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. […] Over himself, over his own body and mind, the individual is sovereign. ("Introductory," paragraph 9)

         The principle was paraphrased to me as a child as "Your right to swing your arms starts at the next kid's nose," and there is a good chance you'll agree with it. The challenge for Mill was applying his elegant principle in the messy real world, bringing his full "Essay" to over 110 pages; and application remains a challenge. To begin with, Mill was a laissez faire, "leave it be," hands-off libertarian radical when it came to commerce. He wanted the government to stay out of the marketplace. But: but Mill was a laisse-faire, "leave it be," hands-off libertarian radical when it came to commerce on the grounds of "utility," what we might call pragmatic grounds. In advanced commercial societies it was usually better, he believed, to just leave the market do its thing; but commerce is necessarily a social activity in which people's conduct definitely "concerns others" — and therefore could be regulated "to prevent harm to others."

         Also, Mill excludes children from his principle of liberty and, unfortunately, "those backward states of society in which the race itself may be considered as in its nonage." Hey, he was radical for 1859, but that allowed for a heavy dose of what we'd call ethnocentrism and condescension for the "wogs" of the Earth: "Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end." As we used to joke, "As H. Rap Brown would say" — a Black Power activist — "'Damn White of him to say that ….'"

            Anyway, it's still relevant that Mill would have State and society protect children and young people below the age of majority even from themselves; and he goes on to insist that "There are also many positive acts for the benefit of others" that any full adult in a society "may rightfully be compelled to perform" in various kinds of "joint work necessary to the interest of the society" that offers us protection" and "to perform certain acts of individual beneficence, such as saving a fellow creature’s life, or interposing to protect the defenceless against ill usage," concluding that "whenever it is obviously a man’s duty to do," something he may "rightfully be made responsible to society for not doing." This follows from the Principle of Liberty because, clearly, "A person may cause evil to others not only by his actions but by his inaction […]" — although he had of be careful with trickier cases of making people do something positive to help others as opposed to just forbidding them to hurt others.

            I clearly don't have a right to swing my arms randomly into some other guy's nose, but things get tricky in cases were I may have an ethical obligation to try to stop him from beating on some third person. Those fictional corporate "persons" the US Supreme Court has been much concerned about can clearly be stopped from doing harm, such as selling tainted meat, but can they be made to reduce harm or even do some good?

            There is also the problem when people profit by encouraging and/or arranging for other people to do that which society thinks will harm those others, even if Mill's principle would have them free harm themselves. If an adult is free is sell his or more often her sexual services and other adults are free to purchase those services, it may still be permissible to forbid someone to act as a pimp.

            Which brings us to some issues in our time.

            By Mill's principle, it would be tyrannical for State or Society to prohibit an action if it hurts some adult individual if that hurt is completely and entirely confined to the individual acting and suffering the action. If you want to ruin your health in one way or another, that, in itself, is something an adult "you" is free to do. But if State and society may only act "to prevent harm to others," we have often acted "to prevent harm to others" in the area of public health.

            If you've got a serious contagious disease, the State can order you to stay home, and the State and your neighbors are justified in enforcing a quarantine, even if quarantine blatantly and seriously restricts your liberty.

            But what about a positive action like inoculations against contagious diseases, especially diseases of children?

            Back when I was doing summer work in the bio-science and medical biz, I was taught, "There is no such thing as an absolutely safe procedure," and that theory was reinforced for me when I drove home a colleague with a high fever from our inoculations at Illinois Public Health — the bubonic plague shot probably — and when I myself almost got a vein torn just getting blood drawn. Some kids are going to get bad reactions from inoculations, and, given the great law of Nature, "Shit Happens," a small number of those reactions will be dangerous and a very small number will be deadly. The safest thing for your kid would be to live in an area where just about everyone else has had inoculations or a childhood bout of some disease, avoid the shots, and depend on "herd immunity."

            Can the State coerce people to forego that game and get their kids inoculated; and can Society, as in the neighbors, act on our own to shame "Goddamn freeloaders!"?

            Uh, yeah. The answer to the question is "Yes." Carefully and reluctantly, we can so act; it is the obligation of State and Society to protect kids generally, not just yours, and it's a right and obligation of State and society to compel "positive acts for the benefit of others" in protecting public health.

            A more problematic situation involves commerce and speech and the somewhat paradoxical idea that society might have to allow people to act as whores and johns (and janes?) — in the interest of liberty — but could, without injustice, forbid pimping.

            And, of course, there can be regulation of commerce when there are good utilitarian (and for Mill, Utilitarian) reasons for regulating, especially when, again, public health is involved.

            So: Even in the midst of an obesity "epidemic," Carl's Jr. is free to make obscenely fattening burger combinations — 1230 calories in one Half-Pound Mile High Bacon Cheeseburger — and adult customers have the liberty to buy and eat them (although I shouldn't, since one of those Mile Highs delivers the calorie allowance for an inactive day for a man my size). But Carl's Jr. has had some fun, and apparently a good deal of success, coming close to literalizing the expression "food porn" in their 2014-15 commercials. What are their rights, using John Stuart Mill's approach, for commercials and marketing?

            Even adding in the US First Amendment so beloved by aging dissidents such as I (Life Member, ACLU) — even adding free speech, there's a fairly simple solution here.

            You have the right to stuff yourself at Carl's Jr. or more sufficiently with a Denny's Grand Slamwich, with Hash Browns (1528 calories), but they have an obligation to tell you the calorie count, and not just on their websites or a smartphone app.

            Those brilliantly produced TV ads can have a slow-moving crawl across the bottom in a readable large font and clear colors giving the calorie count of the food pushed by those gorgeous models. Ditto for the menus, as some jurisdictions have already required.

            Mill's principle of liberty was paraphrased by one of my students as "Freedom is the right to screw yourself," and I have asserted the right of people to "Go to hell in our own manners, so long as we don't seriously annoy the neighbors." There is no absolute right, however, to encourage people to screw themselves or grease too much the road to perdition, or to obesity.

            "Sex workers of the world, unite! Solidarity forever! Form unions and free yourselves of pimps!" And even before the unionization of sex workers, the pimping of other vices, like gluttony, can at least be rationally regulated.

            Obesity isn't an epidemic, but it is a problem in American public health, and other places penetrated by American "food ways." Pushing fast food (etc.) is commerce, and especially when commerce affects public health we can at least demand disclosure and helping to ensure people's informed choice is buying a product.

            I want to see calorie counts on all menus for any food-pusher operations bigger than a pushcart or a mom-and-pop corner dive. And Carl's Jr.: If you stick with those models, better put the calorie count on the bottom and in a large diagonal band across the screen, with the numbers where people's eyes go when checking out the models.