July 5, 2020

by Steve Stofka

Am I my brother’s – or sister’s – keeper? If I am, what is the extent of that care and concern? We’ve been discussing this issue for a few thousand years, and this pandemic brings several issues to a sharp focus. On this Independence weekend, how independent are we? How do we view the social contract?

Writing in the 1840s, Ralph Waldo Emerson distinguished between “direct” and “reflex” recognition of duties (Emerson, 1841). A direct type is one based on principles that we respect and embrace. A reflex type is one we recognize simply because others hold it as a duty. The second type is like wearing an uncomfortable style of shoe because it is a popular style. Who decides what my duties are?

There was a video of Florida protesters chanting, “My body, my choice.” Sound familiar? No, it wasn’t a pro-choice rally. It was a protest of the governor’s requirement that people wear masks. Is my freedom more important that your health? Let’s say that it is. It’s a soccer match and the team “My Freedom” with green uniforms beats the team “Your Health” in blue uniforms. Should choices about priorities be a dualistic – win or lose – debate? We are often forced to make such choices when we vote.

This past week two women in their twenties walked out of a clothing store. One hurriedly took off her mask and said, “God, I can’t stand these things.” Her friend was calm and kept her mask on as they walked to their car. Some people may protest “My Freedom” when it’s just a matter of being uncomfortable. Chanting “My Freedom” sounds like a principle. It’s noble. Chanting “My Comfort” sounds like an 18-year old who wants to wear sandals and surfer shorts to a job interview.

Most hospital employees who have contact with patients must wear masks or they are fired. Businesses serving the public may require that their employees wear masks as well. So why the objection to being told to wear a mask at the park or beach? Several decades ago, many people had this same debate about seat belts and being forced to wear helmets while operating a motorcycle. Does the government have a right to require people to wear safety equipment?

NO) It’s my body and I have a right to not wear a seat belt or a helmet.
YES) We don’t have a constitutional right to drive. It is a state-issued license.

In 1972, the Supreme Court settled the legal question, concurring with many state Supreme Courts that people did not have a constitutional right to drive a vehicle (Jones & Bayer, 2007). The case was about helmet laws for motorcycle drivers but the decision threatened car manufacturers who did not want to be forced to install seat belts in cars. Federal legislation was passed that exempted states who wanted to repeal helmet laws. Three states still don’t have helmet laws. Despite more than a decade of legal battles and lobbying, Congress passed legislation that required seat belts to be installed in new vehicles (Wolinsky, 1985).

What is a license and what is a right guaranteed by the Constitution? In 2012, the Supreme Court heard a legal challenge to the ACA, or Obamacare. Does the government have a right to require a person to buy health insurance?

YES) The government requires that people buy auto insurance. Same thing.
NO) Health insurance is our health, the act of simply being alive. That is a right protected by the Constitution. The government cannot require you to buy health insurance.

In 2012, the Supreme Court agreed with the No argument. “The federal government does not have the power to order people to buy health insurance,” Chief Justice Roberts wrote (Norman, 2012). However, the government can charge a person a tax for not buying health insurance. The penalty was a tax. With that understanding, Obamacare was allowed to stand.

Wearing a seat belt or motorcycle helmet protects us. Wearing a mask protects others. Don’t we have a duty to others in our community? Isn’t that part of the implied social contract? This debate is similar to the one about vaccines, especially those given for childhood diseases. Getting a vaccine helps protect others. Can a public school require my child to be vaccinated?

The Yang Gang is a group of supporters named after former Presidential candidate Andrew Yang. He proposed a Universal Basic Income program that would send money to most households every month. The program recognizes human dignity and provides a minimum threshold of financial support. Members of the Yang Gang recognize a broad social contract that includes a duty to help support others. Their motto is “not left or right, but forward.”

Some recognize two forms of the social contract. The first is an involuntary participation in society that is regulated by a coercive government. This is the reflexive form of duty that Emerson wrote about. We accept the rules, duties and principles even if we don’t agree with them. We make a bargain to ensure some security of our freedom and property. The second type of social contract is voluntary, or at least non-coercive, akin to what Emerson called a direct duty. This includes our family, our church, civic groups and the people we mingle with.

We feel strongly about our opinions, and weigh the various aspects of an issue differently. Emerson thought each person’s synthesis of experience was unique and that each of us formed “a new classification” of the world. A democracy requires consensus. In a nation that prides itself on its independence, we have chosen a form of government that makes us dependent on each other to create the rules for our society. On July 4^th , we declared our independence from Britain, and our in-dependence on each other.

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Photo by Scott Graham on Unsplash

Emerson, R. W. (1841). On Self-Reliance. American Transcendentalism Web. Retrieved July 04, 2020, from https://archive.vcu.edu/english/engweb/transcendentalism/authors/emerson/essays/selfreliance.html

Jones, M., & Bayer, R. (2007, February). Paternalism and its discontents: Motorcycle helmet laws, libertarian values, and public health. Retrieved July 04, 2020, from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1781413/

Norman, J. (2012). Supreme Court Upholds Health Care Law in 5-4 Decision. Retrieved July 04, 2020, from https://www.commonwealthfund.org/publications/newsletter-article/supreme-court-upholds-health-care-law-5-4-decision

Wolinsky, L. (1985, February 19). Big Lobbies Clash in Fight on Seat Belts : Hearings Open Today as California Joins Auto Safety Debate. Los Angeles Times. Retrieved July 04, 2020, from https://www.latimes.com/archives/la-xpm-1985-02-19-mn-546-story.html.