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Liberty, the public interest, and mandatory helmet usage legislation

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Liberty, the public interest, and mandatory helmet usage legislation an application of John Stuart Mill
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Wheeler, Robert C
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vi, 88 leaves : ; 29 cm

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Helmets -- Law and legislation ( lcsh )
Motorcycles -- Law and legislation ( lcsh )
Helmets -- Law and legislation ( fast )
Motorcycles -- Law and legislation ( fast )
Political and social views ( fast )
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Includes bibliographical references (leaves 85-88).
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Submitted in partial fulfillment of the requirements for the degree, Master of Arts, Department of Political Science.
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by Robert C. Wheeler.

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Full Text
LIBERTY, THE PUBLIC INTEREST, AND MANDATORY HELMET USAGE
LEGISLATION: AN APPLICATION OF JOHN STUART MILL
by
Robert C. Wheeler
B.A., University of Northern Colorado, 1976
A thesis submitted to the
Faculty of the Graduate School of the
University of Colorado in partial fulfillment
of the requirements for the degree of
Master of Arts
Department of Political Science
1985


This thesis for the Master of Arts degree by
Robert C. Wheeler
has been approved for the
Department of
Political Science
by
Date uuvImA


Wheeler, Robert C. (M.A., Political Science)
Liberty, the Public Interest, and Mandatory Helmet
Usage Legislation: An Application of John Stuart
Mill
Thesis directed by Associate Professor Michael S. Cummings
Is there an arena of individual behavior which
should be immune to State interference? John Stuart
Mill, in his classic work On Liberty, maintained
there is such an arena. This thesis examines Mill's
principle of liberty to find what value, if any, it
holds in determining the legitimacy of what is often
referred to as "paternalistic legislation." Specif-
ically, the thesis applies Mill's principle to mandatory
helmet-usage legislation.
Other questions are addressed along the way. How
far should the State reach in order to insure personal
safety? What criteria should be used to determine what
individual behavior becomes the legitimate concern of
others? Is Mill's two-sphere model of individual
behavior, consisting of self-regarding and other-
regarding behavior, a worthwhile model for analyzing
paternalistic legislation?


Chapter I lays out the relevance of this work,
arguing that Mill's essay raises very important issues
that presently exist in our society. Chapter II
examines On Liberty, concluding the two-sphere model of
Mill's is a beneficial model for analyzing such legisla-
tion. Chapter III is an overview of the history of
mandatory helmet-usage legislation. Chapter IV is the
application of Mill's principle to the helmet-usage
legislation, along with a summation of the specific
strengths and weaknesses of his argument. I conclude
that Mill would likely oppose such legislation, and is
correct in doing so. Thus, Mill's principle of liberty
is found to be a valid tool for examining the limits of
State interference in "paternalistic" matters. Finally,
Mill's principle is found wanting, for it is ultimately
based upon certain fundamental assumptions, specifically
those supportive of a market economy, which promote the
extension of the State into the very arena Mill said
should be immune to interference.


V
CONTENTS
CHAPTER
I. INTRODUCTION.................................... 1
II. CRITIQUE OF ON LIBERTY............................14
III. MANDATORY HELMET USAGE LEGISLATION:
AN OVERVIEW ..................................41
IV. MILL. AND PATERNALISM: SPECIFIC
IMPLICATIONS AND FAILINGS ..................... 63
BIBLIOGRAPHY
85


VI
TABLES
Table
111.1. Motorcycle Fatalities and
Registrations, 1958-1979 42
111.2. Numbers of States Implementing
Helmet Laws by Year......................... 45
111.3. Status of Helmet Requirements
in Repeal States by Year of
Repeal...................................... 46
111.4. Fatal Head Injuries per 1,000
Crash-Involved Riders (Pre-
Repeal vs. Post-Repeal)..................... 48
111.5. Most Severely Injured Body
Location per 1,000 Crash-
Involved Riders............................. 49
111.6. Fatal Head Injuries per 1,000
Crash-Involved Riders
(Helmeted vs. Nonhelmeted) ................. 50
111.7. Preliminary Results From a
Survey of 95 Accident-Involved
Riders in South Dakota .......... 51
111.8. Hospital Data for Motorcycle
Accidents Which Occurred
During 8/28/76 Through
8/28/78 ................................ 51
III.9. Seventy-One Motorcyclists'
Hospital Bills ....
53


CHAPTER I
INTRODUCTION
What individual behavior, if any, should be
immune to State action? Should the State be allowed to
mandate individual behavior designed for the primary
purpose of self-protection? How far should the State
reach in order to insure personal safety? What criteria
should be used to determine what individual behavior
becomes the legitimate concern of others? Specifically,
is the State using legitimate power in implementing
legislation requiring motorcycle riders to wear protec-
tive headgear?
These questions are important enough to investi-
gate, and therein lies the focus of this thesis. The
thesis will consist of four chapters. The first is this
introduction, which offers a brief summation of John
Stuart Mill's general argument presented in On Liberty,
a case in favor of the relevance of his argument to
mandatory helmet usage legislation in particular, and to
paternalistic legislation in general. I will also
address Mill's place in the history of classical liberal
thought, and provide a preview of the rest of the thesis.


2
Chapter II will be an analysis of Mill's argument
presented in On Liberty. There will be included various
interpretations and critiques of his argument. The
analysis of Mill's work will consist of five central
questions. What was Mill's view of human nature? To
appreciate or understand any great political theorist,
we must examine the theorist's most fundamental assump-
tions concerning human behavior. Why did Mill place such
great value upon individuality, and does individuality
deserve such prominence? Why did Mill place great value
upon liberty, as he defined it? Next, can human behavior
be so divided into the self-regarding and other-regarding
spheres Mill presented to us? Finally, why did Mill seek
to restrict State authority?
Chapter III will be an analysis of mandatory h :
helmet usage laws for motorcyclists. Included will be
an overview of the political history behind such legis-
lation, as well as the consequences of its implementation,
and subsequent repeal in many states. Chapter IV will be
an application of Mill's principle of liberty to the
mandatory helmet usage laws. Does his principle, or
some amended version of it, call for such legislation?
John Stuart Mill set forth an argument in his
classic On Liberty that there is a sphere of human
behavior which deserves immunity from State action.


Mill maintained human behavior can be divided into two
separate spheres: that which concerns others, and that
which concerns only oneself. The State has the right to
enter the former, but must be prohibited from entering
the latter. The primary purpose of this thesis is to
investigate the validity and relevance of this argument
by one of the most important political thinkers of
classical liberalism. To evaluate the applicability of
his argument to the existing conditions of American
society, I will use his theory to examine the mandatory
motorcycle helmet usage laws that presently exist in
twenty-two states. This particular type of legislation
directly addresses many of the issues Mill raised in his
argument.
This thesis will focus on two essential compo-
nents of Mill's argument. First, he placed a value of
primacy in individuality, and argued that a society is
only as good as the individuals in it. Second, Mill
maintained that the most essential condition in which
the individual and society can grow and prosper is
liberty. He defined liberty as the freedom to choose
one's life plan in a manner which does not harm others.
The only freedom which deserves the name, is that
of pursuing our own good in our own way, so long
as we do not attempt to deprive others of theirs,
or impede their efforts to obtain it.-*-


4
It was Mill's contention liberty was becoming
increasingly threatened during his time, and the forces
of public opinion, as well as the growth of State
authority, were the primary culprits. Thus, Mill set
out to establish limits of State authority in the area
of individual behavior.
Mill divided human behavior into two general
spheres. One sphere is that which Mill called "self-
regarding." This sphere consists of all individual
behavior which concerns only the agent. The other sphere
is usually referred to as "other-regarding" behavior.
This is behavior which does affect persons besides the
agent. The major contention of On Liberty is a "simple
principle": the State should never enter the self-
regarding sphere in a coercive fashion. The only
occasions in which State coercion is justified are times
when the agent's actions affect others. Mill began his
essay stating precisely this point.
The object of this Essay is to assert one very
simple principle, as entitled to govern absolutely
the dealings of society with the individual in the
way of compulsion and control, whether the means
used be physical force in the form of legal penal-
ties, or the moral coercion of public opinion.
That principle is, that the sole end for which
mankind are warranted, individually or collectively,
in interfering with the liberty of action or any of
their number, is self-protection. That the only
purpose for which power can rightfully be exercised
over any member of a civilised community, against
his will, is to prevent harm to others.^


5
Protection from coercion is essential to promot-
ing liberty, and it was Mill's contention that such
protection was more necessary than ever before: "...
the worth of a State, in the long run, is the worth of
3
the individuals composing it. ..."
How relevant are the issues addressed in Mill's
essay to present American society? Is there a trend
toward less individual liberty, as Mill maintained? Is
individuality increasingly threatened by public opinion,
as well as State coercion? Mill asserted the threat of
tyranny by the majority is very real, even in a repre-
sentative government. How accurate was this assertion?
It is my contention that these issues, and others
presented in Mill's argument, are quite relevant to our
present society.^
It is not necessary to determine whether the
threat to liberty and individuality is greater today
than in Mill's time, or to evaluate the relative
restrictions of life in nineteenth century Europe, and
twentieth century America. It is sufficient to state
there is much evidence to assert individuality and
liberty are encroached upon, by the forces of both
5
private and public institutions.
Mill was quite concerned about the degree of
conformity he witnessed in his time. In fact, he stated


6
the mere act of non-conformity is of such value that it
is to be admired and supported, simply because it has
become so rare a commodity. The pressures of conformity
in present America can be witnessed in numerous ways, but
only two will be presently addressed. The influence of
a consumption-oriented capitalist society upon indi-
viduality expresses itself in a variety of ways. The
constant bombardment of advertising places great pres-
sure, much of it successful, to consume the identical
products, in order to achieve identical results. Thus,
to a large extent, how we actually define individuality
is through the clothes, food, or other consumer goods we
obtain.^
Second, the State systematically promotes and
protects the two-party system: through restrictive
ballot requirements, incumbent privileges, and shared
federal fundings, there exist many barriers for indi-
viduals with different viewpoints from those of the
mainstream Republican and Democratic parties. Thus, an
obvious homogeneity of political leaders emerges in the
form of white, well-to-do males with fundamentally status
7 ...
quo ideologies. The few exceptions to this political
mold do not alter the point that individuality is
actively opposed by the present two-party State.


7
Mill was not only concerned with the lack of
individuality. He was also alarmed at the degree of
encroachment upon individual liberty. Once again it is
not important to determine whether Americans have more
liberty than did Mill's English citizens. We need only
present evidence that liberty is being restricted and
threatened, and such evidence is not difficult to find.
We can begin with the obvious examples of encroachment
upon freedom of speech, religion, and the press which
is part of the daily news report. Individual civil
liberties are being constantly threatened, by both the
g
private sector and the State. The abuse of governmental
wiretaps, the increase of legislative mandates, and the
sheer number of court actions brought against the press
and individuals who challenge the status quoall these
examples support the argument that individual liberties
are in jeopardy.^
This thesis will investigate a piece of legisla-
tion that can be placed in a category which concerned
Mill in his argument: paternalism. Paternalism is the
idea of restricting (or mandating) certain behavior
deemed not to be (or to be) in the best interests of the
person so directed. We are seeing this type of legisla-
tion being passed in ever-increasing numbers. Mandatory
helmet usage for motorcyclists is required in twenty-two


8
states. New York, New Jersey, and Illinois have just
passed a mandatory seat-belt usage law, and other states
are considering similar legislation. It is the purpose
of the thesis to examine Mill's theory, and to determine
whether it is worthwhile to apply his theory to such
paternalistic legislation. Mill's argument is certainly
relevant to present American society, not because it is
flawless, but because the issues it addresses exist, and
are deserving of investigation.
Liberalism developed from a variety of historical
conditions, not all of them economic. The ideological
roots of liberalism were founded in the Revolutionary
Era of the eighteenth century. The political ideals of
this era were freedom of thought, of expression, and of
association. Also included in the ideology were the
security of property and the control of political insti-
tutions by an informed citizenry. What means were neces-
sary for these ideals to be realized? A society had to
establish a government that would work within limits set
by law. It was necessary to adopt a form of constitu-
tional government. Furthermore, the political authority
should include some form of representation. Signif-
icantly, these political ideals were posited as self-
evident natural rights.


9
Though rooted in these political ideals, classi-
cal liberalism was not a revolutionary ideology. The
fear among its proponents, caused in part by the excesses
of the French Revolution, resulted in a more moderate
strategy for implementing these ideals. The growth of
empiricism, including utilitarianism, eventually over-
shadowed the belief in self-evident natural rights.
Perhaps most importantly, as the position and influence
of the commercial and industrial middle class became
more assured, revolution became less desired. George
Sabine states:
This class everywhere formed the spearhead of
liberal political, reform in the nineteenth
century, and the trend of industrial and commer-
cial development made the expansion of its politi-
cal power a foregone conclusion.-^
The emergence of this new political base coin-
cided with the decline of the landed gentry, and the
growth of unorganized wage earners. As time went on,
liberal political reform passed out of the region of
ideology, and into that of pragmatic reform. The
liberal reformers sought administrative reorganization,
reforms in legal procedures, and regulations in areas
of commerce and social welfare. Its philosophy tended
to become utilitarian instead of revolutionary.
Liberalism transformed itself into an intellectual
bridge between the individualism of its earlier
period, which was its heritage from the philosophy


10
of the Revolutionary Era, and a recognition of the
reality and the value of social and communal inter-
ests, which tended in general to put themselves
forward in anti-liberal forms.H
Finally, the economic theory of liberalism was
based upon the works of Adam Smith and David Ricardo,
and most liberal theorists supported the ideological
assumptions of market capitalism. Certainly, beginning
with John Locke, laissez faire economic freedom provided
a solid foundation for promoting political freedom for
individuals, primarily those of property. The liberal
thinkers expanded and transformed the ideology, which
C. B. MacPherson has labeled "possessive individualism,"
and the relationship between capitalism and liberalism
12
is both intimate and dynamic.
Johm Stuart Mill's position in liberal thought
can be viewed as one of transition. His theories were
important for liberalsim, for he helped lead liberalism
from the egoism of utilitarianism towards a theory that
assumed social welfare is a matter of concern to all
citizens. Mill also presented freedom, integrity, self-
respect, and individuality as intrinsic goods apart from
their contribution to utilitarian happiness, though he
never fully acknowledged this departure from Benthamite
utilitarianism. According to Sabine, Mill's contribu-
tions to liberal philosophy can be summed up in four


11
general statements. First, Mill rescued utilitarianism
from its dead-end calculation of pleasures and pains.
Second, Mill accepted political and social freedom as
intrinsic goods, not because they contributed to an
ulterior end, but because freedom is the proper condi-
tion of a responsible human being. To pursue one's
life in one's own way is not a means to happiness, but
is a substantive part of happiness. Next, Mill argued
that liberty is not only an individual good, but a social
good as well. The claims of individual right and public
utility are closely connected. Finally, the function of
a liberal state in a free society is not negative but
positive. It cannot make its citizens free merely by
refraining from legislation or assume that the conditions
of freedom exist merely because legal obstacles have been
erased.^
Mill's On Liberty is his most characteristic and
most lasting contribution to political thought. It can
be argued that it represents the noblest statement of
liberal thought, for it successfully argues that
individuality is not only to be a vice tolerated by an
enlightened society, but to be given a positive value
and be viewed as an essential ingredient of a good
society.


12
NOTESCHAPTER I
1
John Stuart Mill, Utilitarianism, On Liberty,
and Considerations on Representative Government, ed.
I H. B. Action (New York: E. P. Dutton & Co., 1972), p. 75.
^Ibid., p. 72.
^Ibid., p. 170
4
Bertrand Russell, "John Stuart Mill," in Mill:
I A Collection of Critical Essays, ed. J. B. Schneewind
(Garden City, N.Y.: Anchor Books, 1968).
5
See, for examples: Ivan D. Illich, Deschooling
Society (New York: Harper and Row, 1971); Hannah Arendt,
The Human Condition (Chicago: University of Chicago Press,
1958); Erich Fromm, The Sane Society (New York: Holt,
Rinehart and Winston, 1955), Chapter V; and Ken Kesey,
One Flew Over the Cuckoo's Nest (New York: Vikinq Press,
1964).
! ^See, for examples: Milton Friedman, Capitalism
! and Freedom: Problems and Prospects (Charlottesville:
[ University Press of Virginia, 1975), Chapter I; John
Downing, The Media Machine (London: Pluto Press, 1980);
j and Michael Parenti, Democracy for the Few (New York:
} St. Martin's Press, 1983), Chapter III.
1
7
See, for examples: Charles Wright Mills, The
Power Elite (New York: Oxford University Press, 1956)
and Mark Green and Michael Calabrese, Who Runs Congress
(New York: Bantam, 1979).
g
See, for Examples: Mark DeWolfe Howe, Cases
on Church and State in the United States (Cambridge,
Mass.: Harvard University Press, 1952), Chapter IV;
0. Carroll Arnold, Religious Freedom on Trial (Valley
Forge: Judson Press, 1978), Chapter IV; Dean M. Kelley,
ed., Government Intervention in Religious Affairs (New
York: The Pilgrim Press, 1962); Robert E. Cushman,
I Civil Liberties in the United States: A Guide to
Current Problems and Experience (Ithaca, New York:
Cornell University Press, 1956); William Zelermyer,


13
Invasion of Privacy (Syracuse, N.Y.: Syracuse Univer-
sity Press, 1959); and Norman Dorsen, ed., Our Endangered
Rights: The American Civil Liberities Union Report on
Civil Liberties Today (New York: Pantheon Books, 1984).
9
See, for examples: Lucuies J. Barker and
Twiley W. Barker, Jr., Freedoms, Courts, Politics:
Studies in Civil Liberties (Englewood Cliffs, N.J.:
Prentice-Hall, Inc., 1965), Chapters II, III, and IV;
Richard C. Cortner, The Supreme Court and Civil Liberties
Policy (Palo Alto, California: Mayfield Publishing Co.,
1975); Michael J. Arlen, An American Verdict (Garden
City, N.Y.: Anchor Book, 1974); and Peter Schrag, Test
of Loyalty: Daniel Ellsberg and the Rituals of Secret
Government (New York: Simon and Schuster, 1977).
^George H. Sabine, A History of Political
Theory, 3rd ed. (New York: Holt, Rinehart and Winston,
1961), p. 671.
1;LIbid., p. 674.
12
C. B. Macpherson, The Political Theory of
Possessive Individualism: Hobbes to Locke (London:
Oxford University Press, 1962) .
15
13
Sabine, A History of Political Theory,
pp. 714-


CHAPTER II
CRITIQUE OF ON LIBERTY
There will be five general aspects of On Liberty
addressed in this chapter. First, what was Mill's view
of human nature? Second, why did Mill place such
importance upon individuality? Next, why did Mill
assign primacy to his own brand of liberty? I will also
investigate the validity of Mill's two-sphere model
concerning human behavior. Finally, the concluding
part of this chapter will examine Mill's assumptions and
attitude towards State action.
What was Mill's view of human nature? Mill
definitely believed in the capacity of human beings to
be rational, but not equally or perfectly so. A
component of his argument opposing State action rests
on the assertion that an individual best knows his own
interests. Similarly, Mill's defense of freedom of
thought, and freedom of expression, would be absurd, if
Mill did not view human beings as capable of being
rational creatures. Thus, rationality is a character-
istic Mill assigned to human beings that have reached
what he referred to as a "certain level of development"


15
Utilitarianism assumes at least certain people
are capable of being rational, for the calculations
necessary to determine the maximization of the greatest
pleasure for the greatest number is a form of linear
rationality. Inherent in the utility principle is an
assumption that happiness is somehow achievable and
even calculable. While Mill offered his own unique brand
of utilitarianism, it is evident he also assumed happi-
ness is obtainable for human beings.
Finally, it should not be assumed that Mill's
view of human nature was simple or unduly optimistic.
Indeed, this interpretation of Mill has been the focal
point of criticism of Mill's principle by a number of
scholars. Mill's view of human nature is attacked by
various critics, primarily on the grounds that he
presented a human being with characteristics not found
in the average person. H. J. McCloskey states:
Mill wrote as if members of civilised societies
are completely rational and responsible, and this
although elsewhere he showed often enough that he
knew that they are not.1
Similar criticism is offered by H. L. A. Hart, who
attacks Mill for his conception of a normal human being,
which does not correspond to the real world.
Underlying Mill's extreme fear of paternalism
there perhaps is a conception of what a normal
human being is like which now seems not to
correspond to the facts. Mill, in fact, endows


16
him with too much of the psychology of a middle-
aged man whose desires are relatively fixed, not
liable to be artificially stimulated by external
influences; who knows what he wants and what gives
satisfaction or happiness,.and who pursues these
things when he can.2
Another area of criticism concerning Mill's view
of human nature consists of his emphasis upon individ-
ualism. For example, David G. Ritchie opposes Mill's
concept of "self-regarding action" because he sees Mill
as proposing a "negative" view of human behavior; one
3
in which the "self" is pitted against others. It is
true Mill, like most liberal thinkers, placed great
value on individualism, at the expense, some would say,
of the communal traits human beings exhibit. Certainly,
his emphasis upon individuality is partially based upon
disdain for the judgment of the masses. Mill assumed
the masses would inherently be comprised of conformists,
with a desire to impose their more likings and dislikings
on others. It was this pervasive tendency on the part of
the masses to conform and abdicate the more positive
aspects of human behavior which gave Mill much of the
impetus to establish his liberty principle. He warns
us early in the essay that "majority tyranny" is becoming
increasingly a threat to individual liberty.
It is important, however, not to lose sight of
the general intent of Mill's argument. Mill sought to


17
establish a foundation for restricting social and
political interference. He was certainly aware of the
fallibility of human beings, both individually and
collectively. He presented numerous examples of errors
in judgment made by individuals, society, and the State.
He did not argue most people have an abundance of
rationality, tolerance, wisdom, and independence.
Rather, he seems to say to us that since all of us have
flaws in our character, it is better for us to make our
own errors, according to the life plan we choose, than
to have the errors forced upon us by the flaws found in
others. A major element in Mill's argument was his
belief that the clash of errors freely chosen is more
likely to produce truth than will the enforcement of one
group's errors Upon another group. Mill maintained that
a person generally knows his own interests best, not
because he absolutely knows them, but because he is. more
likely to know what his interests are than is anyone
else.
Ritchie's interpretation presents Mill's concept
of a civilized person in a far too negative and exag-
gerated form. Mill did not attempt to isolate one
person from all others. He readily admitted, and even
advocated, the social aspect of human behavior. In fact,
it can be argued that Mill's liberty principle is a


18
fundamental ingredient in building a society in which
people beneficially interact with one another. Mill
might agree with Ritchie's assertion that one can find
"self" in community, but only if he is allowed to choose
freely his own life's plan. Mill asserted that the
worth of a society can be found in the worth of the
individual. He made no attempt to isolate human beings.
Rather, his concern was how to build a society consisting
of rational, creative, and happy individuals. Recogni-
tion of individual rights is absolutely essential to
the society Mill envisioned.
Why did Mill place such great value upon individ-
uality, and does it deserve such prominence? Let us
remember Mill's assumption concerning the actions of the
masses. He observed a tendency of the masses to adhere
to conformity and blind obedience. In such a society,
Mill asserted "great achievements" are rarely, if ever,
obtained.
Mill presented an elitist, but not aristocratic,
argument in advocating the position that exceptional
individuals should be nourished and supported in a good
society. Mill was an elitist in the sense that he
argued certain people were more rational, intelligent,
and creative than others. Acknowledging such differ-
ences exist among citizens, Mill presented his principle


19
as a means of benefitting society by allowing such
gifted people the liberty to reach their full potential.
Mill's principle does not rest on the assertion that.all
citizens are capable of great deeds, if given a wide
degree of liberty. Rather, the wide range of liberty
Mill proposed will directly benefit the few citizens
capable of great deeds, thereby bettering the rest of
society. It is important to note that Mill did not
support the idea that such gifted people are the exclu-
sive domain of the wealthy class or of a hereditary
aristocracy.
Interestingly, Mill's strongest argument for
individuality lies in his assertion that society ulti-
mately benefits from such individuals. It is to the
benefit of all citizens, not merely the exceptional
individuals, for society to promote a wide range of
individual behavior. In this "free market" of life-
styles and behavior, the great reservoir of untapped
human potential can be explored and uncovered. Citizens
will reap the rewards of unbridled genius. The medi-
ocrity of the majority will be elevated by the tolerance,
and even the promotion, of those exceptional individuals
who have the courage to be different. Mill stated that
in other times, it was necessary for such individuals to
be not only different, but better. For Mill, because of


20
the pervasive trend towards conformity, the mere act of
non-conformity is a service to society. ". .In this
age, the mere example of non-conformity, the mere
refusal to bend the knee to custom, is itself a service."
Mill did more than assert that diversity is
inherently beneficial. He forcefully argued that blind
obedience must be fought against, because it always
destroys character. Thus, individuality is important to
Mill because it builds character. Mill did not abso-
lutely oppose custom or tradition, but it was blind
obedience to them which he absolutely rejected.
Sir James Fitzjames Stephen, among others, has
criticized Mill for assuming diversity in human behavior
is inherently good.^ In general, these critics view
Mill as a proponent of eccentricity, rather than positive
individuality. They interpret Mill as arguing that
differences are better simply because they are differ-
ences. It is evident Mill did place a great deal of
value in individuality and diversity. He believed that
only by exploration and experimentation can man begin to
reach his potential:
It is not by wearing down into uniformity all that
is individual in themselves, but by cultivating it,
and calling it forth, within the limits imposed by
the rights and interests of others, that human
beings become a noble and beautiful object of con-
templation; and as the works partake the character
of those who do them, by the same process human


21
life also becomes rich, diversified, and animating,
furnishing more abundant aliment to high thoughts
and elevating feelings, and strengthening the tie
which binds every individual to the race, by making
the.race infinitely better worth belonging to. In
proportion to the development of his individuality,
each person becomes more valuable to himself, and is
therefore capable of being more valuable to others.^
Does individuality deserve the importance Mill
assigned to it? I think it does, for the very reasons
Mill presents. There is a direct corresponding relation-
ship between the quality of the state, and the quality
of the citizens. It is a dynamic relationship, in which
each side shapes and defines the other. But it is not a
simple "chicken or the egg" riddle. Society is comprised
of individuals, and Mill did not place individuals outside
7
of society. Instead of pitting the individual against
society, Mill stated the rights of an individual have,
primacy over the mere desires of the rest of society.
Thus, he centered the argument around rights and prefer-
ences, rather than individuals and society. This point
is often ignored or misunderstood by those critics of
Mill who attack him for placing the individual above
society. His principle gave primacy to individual
rights, and presents us with a conflict Mill was unsuc-
cessful in resolving: the conflict between the values of
individual liberty and social utility. While Mill can
be rightly accused of being an inconsistent utilitarian,


22
to assign to him the responsibility of advocating selfish
individualism is to make a serious error in interpre-
tation .
Why did Mill place such great value upon liberty,
and does liberty deserve such prominence? Mill is quite
explicit in defining liberty:
The only freedom which deserves the name, is that
of pursuing our own good in our own way, so long
as we do not attempt to deprive others of theirs,
or impede their efforts to obtain it.
This is a negative view of freedom, because it is a
"freedom from" interference, rather than a freedom for
certain rights and benefits. Isaiah Berlin explains this
negative view.
By being free in this sense I mean not being inter-
fered with by others. The wider the area of non-
interference the wider my freedom. This is certainly
what the classical English political philosophers
meant when they used this word.9
The question remains concerning why Mill believed
this brand of liberty was so essential to a good society.
Mill presented a similar argument on behalf of liberty
to that concerning individuality, i.e., there is a direct
relationship between the degree of liberty a society can
be assigned and the degree of liberty the citizens
enjoy:
No society in which these liberties are not, on the
whole, respected, is free, whatever may be its form
of government; and none is completely free in which
they do not exist absolute and unqualified.10


23
Mill was certain liberty is essential to building
good character in people. Liberty promotes independence
of thought and action by requiring people to take more
control over their lives. Freedom promotes a wide range
of human behavior, and thereby creates a conducive market-
place for great achievements. Liberty is also important
to Mill for providing a democratic government, which
ultimately depends upon responsible individual acts.
Liberty will help prevent a passive acceptance of custom,
and will thereby reduce the number of rules based merely
on preference or likings. Finally, Mill presented an
efficiency argument in favor of liberty. He stated that
even if there are certain legitimate reasons for inter-
fering with one's "self-regarding" behavior, it might be
wise not to do so, since one knows one's own interests
best. For all of these reasons, Mill gave liberty great
value.
Mill has been attacked by numerous critics for
placing too high a premium on liberty."^ These critics
argue there are many characteristics essential to a good
society, with liberty being merely one of them, and not
necessarily the primary one. Mill is also criticized
for his negative view of liberty. Ritchie, for example,
argues that men have struggled for liberty on grounds
12
much more substantial than being left alone.
I think


24
this is too narrow a view of Mill's conception. Ronald
Dworkin provides a convincing defense of both Mill1s
13
principle, and his definition of liberty. According
to Dworkin, there are generally two types of liberty:
liberty as license, and liberty as independence. Liberty
as license is the degree to which a person is free from
social or legal constraint to do what he might wish to do
This is an indiscriminate concept because it does not
distinguish among forms of behavior. In essence, every
prescriptive law diminishes a citizen's liberty as
license: good laws, like those preventing murder and
theft,, diminish liberty in the same way, and possibly to
a greater degree, than bad laws. Liberty as independence
is not the same type of indiscriminate concept. It is
the status of a person as independent and equal rather
than subservient. Dworkin maintains Mill is using
liberty as independence, not as license. He is right in
stating Mill did not advocate an absolute freedom or
license; in fact, Mill conceded any act, no matter how
personal, may have important effects on others. Dworkin
explains why liberty as independence was of value to
Mill.
Mill saw independence as a further dimension of
equality; he argued that an individual's inde-
pendence is threatened, not simply by a political
process that denies him an equal voice, but by
political decisions that deny him equal respect.
Laws that recognize and protect common interests,


25
like laws against violence and monopoly, offer no
insult to any class or individual; but laws that
constrain one man, on the sole ground that he is
incompetent to decide what is right for himself,
are profoundly insulting to him. They make him
intellectually and morally subservient to the
conformists who form the majority, and deny him
the independence to which he is entitled. Mill
insisted, on the political importance of these
moral concepts of dignity, personality, and insult.
It was these complex ideas, not the simpler idea of
license, that he tried to make available for politi-
cal theory, and to use, as the basic vocabulary
of liberalism .14
Liberty deserves the primacy Mill gave to it, if
one is constructing a good society. There are, however,
situations in the real world in which it might be neces-
sary to place other conditions ahead of it. Certainly,
in time of crisis, such as war or famine, the freedom
from interference Mill advocated might, out of necessity,
be restricted. This acknowledgment of certain conditions
existing which would preempt liberty does not discredit
Mill's principle. A society,, to be of the sort Mill
desired, must have liberty from interference. I would
not wish to construct a good society without guaranteeing
liberty. It is important to remember, and Mill was
certainly aware of this, that there must also be
guarantees of other characteristics, such as enough food
and shelter, for a society to be considered good. In
fact, Mill should have argued these characteristics are
essential conditions for liberty to flourish. He did


26
this implicitly, because he would have realized starving
persons or those who have no means of sustenance, forfeit
their freedom in a very serious manner.
Can human behavior be placed within the self-
regarding and other-regarding spheres Mill presents?
The issues raised by this question are the essence of
Mill's essay, for if distinctions cannot be made between
the two spheres, then his assertion that the State is
forbidden from entering the self-regarding arena is
meaningless. If the two spheres can be identified as
separate areas of human behavior, then it is possible to
examine the value of Mill1s principle in evaluating State
action.
Mill had no doubt that certain human behavior
can be considered "self-regarding." Throughout the essay,
Mill referred to individual behavior which either
concerns no one but the agent, or concerns others only
in an indirect manner.
The only part of the conduct of any one, for which
he is amenable to society, is that which concerns
others. In the part which only concerns himself,
his independence is, of right, absolute.15
But there is a sphere of action in which society,
as distinguished from the individual, has, if any,
only an indirect interest; comprehending all that
portion of a person's life and conduct which affects
only himself, or if it also affects others, only
with their free, voluntary, and undeceived consent.
and participation.16


27
It is desirable, in short, that in things which
do not primarily concern others, individuality
should assert itself.17
Assuming such self-regarding behavior exists,
what constitutes it? To determine what self-regarding
behavior is, we must introduce here another concept used
by Mill in the essay. Mill's answer to what consti-
tutes "self-regarding" behavior seems to be "that
behavior which does not harm others." Thus, it is
essential that we define what constitutes "harm to
others," before we can determine if Mill's two-sphere
model is of any practical value. It Is obvious Mill
considered such harm to others as more than only
18
physical harm. Certainly, we can be harmed emotion-
ally and spiritually by actions inflicted upon us by
others, either collectively or individually. What
actions beyond physical harm would travel from the
self-regarding sphere into the other-regarding arena?
Mill gives us some helpful, but not extensive, and far
from conclusive guidelines for determining such actions.
I fully admit that the mischief which a person
does to himself may seriously affect, both through
their sympathies and their interests, those nearly
connected with him and, in a minor degree, society
at large. When, by conduct of this sort, a person
is led to violate a [distinct and assignable obli-
gation] to any other person or persons, the case
is taken out of the self-regarding class, and
becomes, amenable to moral disapprobation in the
proper sense of the term Whenever, in short,
there is a [definite damage], or a [definite risk
of damage], either to an individual or to the


28
public, the case is taken out of the province of
liberty, and placed in that of morality or law.-*-9
We are getting closer to defining harm to others,
but we are not quite there. It remains necessary to
define "distinct and assignable obligation." How do we
know what "definite damage" or "definite risk of damage"
consists of? Once again, Mill seems to define these
terms by what they are not, rather than what they are.
What clearly does not constitute harm to others is some-
thing affecting their mere likes and dislikes, what
Mill referred to as "preferences" of the person being
"harmed." Therefore, simply because Mr. Jones may be
offended by the actions of Mr. Smith, Jones has no right
to impede Smith's actions. Mill maintained that no real
harm has been inflicted upon Mr. Jones, because the only
negative consequences which exist are the result of
Jones' likes and dislikes, rather than Smith's actions.
For example, Mill today would argue that one's homo-
sexuality should not be open to State action, because
the only harm it does is to offend certain persons'
likes and dislikes, and according to Mill, this is
insufficient warrant for restricting what he views as
"self-regarding" behavior.
For harm to exist, a person must violate a
"distinct andiassignable" obligation to someone else.


29
What is such an obligation? Certainly, Mill would
include the providing of basic necessities of life for
dependents. Thus, while drunkenness, in itself, may be
purely self-regarding, if it results in failing to
provide food and shelter for one's family, then it
becomes "other-regarding," and thereby open for State
interference. Likewise, if one's individual pursuits,
such as gambling, prevent the agent from fulfilling
contractual or monetary obligations, such action enters
the "other-regarding" sphere. It is essential to note,
however, that the "harm to others" is not the action of
gambling or drunkenness, but the irresponsibility
promoted by them. What causes these acts to be
considered "other-regarding," and thus open to discus-
sion, is the fact they have led to the failure to carry
out certain "distinct and assignable" obligations.
A "distinct and assignable" obligation must be
one that is both direct and verifiable. It can be
determined if bills are being paid, food is being
provided, or contracts are being honored. It cannot be
precisely determined to what degree one is "offended"
by certain actions which might be considered immoral or
improper. Further, there is no "assignable obligation"
among citizens not to offend others, for social mores
and values are continually changing. The first person


30
in town to wear a new hairstyle, or dress in a certain
fashion, will inevitably offend someone's sensibilities,
but this offense is not justification for interfering
with such behavior.
What does Mill mean by "definite damage" and
"definite risk of damage"? It is not possible for Mill,
or anyone else, to list completely all the actions which
constitute "damage," for what is considered harmful in
one society, during one era, might be considered accept-
able and proper in another. The examples of child labor
and slavery come immediately to mind as such actions.
The importance of Mill's terminology lies in the term
"definite," rather than "damage." The term "definite"
implies something measurable and specific. It might be
calculated statistically, such as the number of fatal-
ities caused by drunk drivers. If it can be shown that
drunkenness, when combined with driving, poses a
"definite risk of damage" to others, then Mill would
consider such action as other-regarding. As is the case
with "distinct and assignable obligation," there must be
certain verifiable "harm" inflicted upon "specific"
individuals, for individual action to be considered
other-regarding.
Some of Mill's harshest critics have disputed
the existence of Mill's self-regarding behavior. u


31
According to such criticism, all human behavior, either
directly or indirectly, affects others. Therefore, no
significant distinctions can be made concerning the
right of the State or society to interfere in individual
action. This concept of "Social Rights" emphasizes the
interaction and interdependence of human beings, and
places obligations and duties upon individuals for their
behavior. Thus, if a person drinks too much, he can be
held accountable to others, for he is neglecting his duty
of being a fine citizen. It matters not whether he is
directly hurting others, for his mere example of
drunkenness is cause enough for society to interfere
with his actions.
Mill readily admits self-regarding acts are not
absolutely removed from affecting others.
The distinction here pointed out between the part
of a person's life which concerns only himself,
and that which concerns others, many persons will
refuse to admit. How (it may be asked) can any
part of the conduct of a member of society be a
matter of indifference to the other members? No
person is an entirely isolated being; it is impos-
sible for a person to do anything seriously or
permanently hurtful to himself, without mischief
reaching at least to his near connections, and
often far beyond them. If he injures his property,,
he does harm to those who directly or indirectly
derived support from it, and usually diminishes,
by a greater or less amount, the general resources
of the community. If he deteriorates his bodily
or mental faculties, he not only brings evil upon
all who depended on him for any portion of their
happiness, but disqualifies himself for rendering
the services which he owes to his fellow-creatures
generally; perhaps becomes a burthen on their


32
affection or benevolence; and if such conduct were
very frequent, hardly any offence that is committed
would detract more from the general sum of good.
Finally, if by his vices or follies a person does
no direct harm to others, he is nevertheless (it
may be said) injurious by his example; and ought
to be compelled to control himself, for the sake
of those whom the sight or knowledge of his conduct
might corrupt or mislead.21-
Mill attacked this theory, because it, in essence, gives
the State and society the right to interfere with any
action of the individual. This concept of social rights
correctly implies that we are definitely a product of
our environment, and the individuals we come into contact
with during our lives affect us in many ways. Thus, by
witnessing what is considered to be "wrong" or "evil"
behavior, innocent individuals may be corrupted. The
proponents of such social rights give justification for
questionable actions carried out with either the force
of state action or that of public opinion. For instance,
in certain localities it might be considered by the
majority of the people to be harmful to have an inter-
racial marriage, because of the influence such action
might have upon the majority of citizens. Thus, an
interracial couple would be setting a "bad example" for
the community, and according to the social rights pro-
ponents, action could rightfully be restricted.
Second, this social rights theory ignores the
fact that nearly all individual behavior results in both


33
beneficial and harmful behavior. For example, a person
who consumes a great deal of alcohol might definitely
set a bad example for certain citizens. However, his
consumption of alcohol may very well benefit farmers who
raise grain, or the individuals he might befriend in the
local saloon and buy a round of drinks for. It might .
even be argued that by being of such, character, he
provides an excellent topic for a preacher's Sunday
sermon. The thrust of these examples is to emphasize
the consequences of asserting self-regarding behavior
does not exist. If no such behavior exists, then it
would be permissible for the State to interfere in all
matters of individual behavior. The criteria for such
interference would be relative, and the result of certain
values. Mill's principle is designed to protect against
such prejudicial interventions by making certain behavior
absolutely immune to state interference, beyond the realm
of discussing the possibility of intervention. It might
well be argued that Mill's definition of self-regarding
behavior is insufficient in its specifics. But I believe
his intention was to construct a principle which simply
says to the State and to Society "thou shalt not enter
into this arena." What that arena specifically consists
of is the basis for much debate, but to deny such an
arena exists is to give to the State, or popular opinion,
l


34
whether in a democracy or a totalitarian regime, all it
needs to inflict tyranny, and discriminatory tyranny at
that, upon individuals.
Why did Mill assign such a negative aspect to
State action? His use of the term "interference"
implies the State is going beyond legitimate boundaries
of action. Throughout the essay, Mill placed the State
and the individual in a partly adversarial relationship.
Gertrude Himmelfarb states:
"Society," therefore, was the chief antagonist in
On Liberty, the great adversary of the individual
. . . The threat as Mill conceived it was formid-
able: it came from the total social as well as
legal and political pressure exerted by the collec-
tive whole known as "society." And because that
threat was so massive, because the whole of society
and all the resources of society were ranged against
the single individual, the solution had to be equally
drastic.22
It must be remembered that Mill did not deny the
legitimacy or the necessity of the State in a good
society. He was most definitely not an anarchist, or
even an orthodox laissez-faire theorist. Indeed, he
argued that erroneous arguments opposing state inter-
ventions are as likely to be heard as erroneous arguments
supporting state intervention. What he attempted to do
was to set up guidelines determining what State action
is acceptable. He presented an arena of self-regarding
behavior, into which the State is forbidden to enter,


35
and he offered guidelines on when the State should enter
the other-regarding sphere.
We need to have a working definition of
coercion, for it is this specific type of State action
which Mill sought to prevent in self-regarding actions.
For our purposes, coercion will be considered to be the
exercise of force to obtain compliance. Mill opposed
coercion on two different levels, one theoretical and
the other pragmatic. Theoretically, he opposed coercion
concerning self-regarding behavior because it prevents
individuals from becoming the complete human beings
they should be. Coercion limits spontaneity, and
restricts the choices of the agent. Mill believed
individuals learn and grow in the degree to which they
are independent, self-reliant human beings. By letting
the State make decisions which concern only the indi-
vidual, society denies the individual an important aspect
of life, and the strength of his character will be
diminished.
Once it is determined, however, that one's
actions are not purely self-regarding, but do, in fact,
affect others, then Mill stated the issue of State
interference is open for discussion. Note, that even
in the other-regarding sphere, Mill was still quite
cautious about supporting State action. His criterion


36
for determining if the State should become involved in
other-regarding behavior is utility. The questions
which must be answered affirmatively, in order to
justify State interference, are ones of practicality and
efficiency. Are the proposed means sufficient to
achieve their end? For instance, would a law that is
difficult to enforce, and one in which compliance is
extremely low, justify the degree of intrusion it permits
the State? Mill would argue that State action which has
little or no chance of achieving its stated goals should
be denied.
Furthermore,even if the objectives of the inter-
ference are good, and even if they are obtainable, are
they important enough to justify the degree of restraint
proposed? What legitimate actions should the State
implement to reduce the number of drunk drivers? What
are the guidelines for determining what measures can be
implemented in the name of national security? Mill
provided us with a valuable principle in determining the
legitimacy and efficiency of State action in matters in
which he allowed such interference. Mill presented
three main objections to government interference in
this arena.
The objections to government interference, when
it is not such as to involve infringement of
liberty, may be of three kinds. The first is,
when the thing to be done is likely to be better


37
done by individuals than by the government. Speak-
ing generally, there is no one so fit to conduct
any business, or to determine how or by whom it
shall be conducted, as those who are personally,
interested in it The second objection is
more nearly allied to our subject. In many cases,
though individuals may not do the particular thing
so well, on the average, as the officers of govern-
ment, it is nevertheless desirable that it should
be done by them, rather than by the government, as
a means to their own mental educationa mode of
strengthening their active faculties, exercising
their judgment, and giving them a familiar knowl-
edge of the subjects with which they are thus left
to deal The third and most cogent reason for
restricting the interference of government is the
great evil of adding unnecessarily to its power.
Every function superadded to those already exer-
cised by the government causes its influence over
hopes and fears to be more widely diffused, and
converts, more and more, the active and ambitious
part of the public into hangers-on of the govern-
ment, or of some party which aims at becoming the
government.23
His last point is his most powerful argument
against State interference. Any amount of power the
State is allowed to accumulate runs the risk, a very
great one at that, of feeding an institution inherently
amenable to corruption and abuse. This risk is as
applicable to the most democratic State in existence, as
it is to the most authoritarian. Restrictions must be
placed upon all governments, and that is the intention
of Mill's principle. In self-regarding matters, the
State is forbidden. In other-regarding matters, the
State has the right to enter, but we should be quite
vigilant in allowing it to interfere in even these
matters. We know our own interests best, not because


38
the government is inherently inept and misdirected.
Rather, because all things being equal, it is beneficial
for us to learn about our own interests by making our own
mistakes, or creating our own successes, rather than
submitting to the State. The dangers of collective
coercion, according to Mill, may easily outweigh the
errors committed by individuals.


39
NOTESCHAPTER II
. J. McCloskey, John Stuart Mill: A Critical
Study (London: Macmillan and Co., 1971), p. 114.
2
H. L. A. Hart, "Paternalism and the Enforcement
of Morality," in Limits of Liberty: Studies of Mill's
Liberty, ed. Peter Radcliff (Belmont, Calif.: Wadsworth,
1966), pp. 62-63.
3
David G. Ritchie, The Principles of State
Interference (Patermoster Square: Swan Sonnenschein &
Co. 1891).
4
John Stuart Mill, Utilitarianism, On Liberty,
and Considerations on Representative Government, ed.
H. B. Action (New York: E. P. Dutton and Co., 1972),
p. 124.
5
James Fitzjames Stephen, Liberty, Equality,
Fraternity (Cambridge: Cambridge University Press,
1967; original 1873) .
Mill, Utilitarianism, On Liberty, and Consider-
ations on Representative Government, p. 120.
7
R. J. Halliday, "Some Recent Interpretations of
John Stuart Mill," in Mill: A Collection of Critical
Essays, ed. J. B. Schneewind (Garden City, N.Y.: Anchor
Books, 1968).
8
Mill, Utilitarianism, On Liberty, and Consider-
ations on Representative Government, p. 75.
9
Isaiah Berlin, "The Notion of 'Negative' Free-
dom," in Limits of Liberty: Studies of Mill's Liberty,
ed. Peter Radcliff (Belmont, Calif.: Wadsworth, 1966),
p. 75.
^Mill, Utilitarianism, On Liberty,
atibns on Representative Government, p. 75.
and Consider-


40
See the following sources: James Fitzjames
Stephen, "Liberty, Equality, Fraternity," and Isaiah
Berlin, "The Notion of 'Negative' Freedom," in Limits
of Liberty: Studies of Mill's Liberty, ed. Peter Rad-
cliff (Belmont, Calif.: Wadsworth, 1966), p. 75.
12 .
Ritchie, The Principles of State Interference,
p. 8 5.
13
Ronald Dworkin, Taking Rights Seriously
(Cambridge, Mass.: Harvard University Press, 1978),
Chapter 11.
^Ibid p 263 .
15
Mill, Utilitarianism, On Liberty, and Consider-
ations on Representative Government, p. 73.
^Ibid., p. 75.
17Ibid., p. 115.
18
. Alan Ryan, The Philosophy of John Stuart Mill
(London: Macmillan and Co., 1970), Chapter 11.
19 .
Mill, Utilitarianism, On Liberty, and Consider-
ations on Representative Government, p. 138.
20
Stephen, "Liberty, Equality, Fraternity."
21 .
Mill, Utilitarianism, On Liberty, and Consider-
ations on Representative Government, p. 138.
22
Gertrude Himmelfarb, On Liberty and Liberalism:
The Case of John Stuart Mill (New York: Alfred A. Knopf,
Inc., 1974), p. 20.
23
Mill, Utilitarianism, On Liberty, and Consider-
ations on Representative Government, p. 164.


!
CHAPTER III
MANDATORY HELMET-USAGE LEGISLATION:
AN OVERVIEW
What was the primary force behind mandatory
helmet usage laws in the United States? Why did the
various state governments deem it necessary to require
motorcyclists to wear protective headgear? By the mid-
1960s, there was concern among certain members of
Congress, as well as within the Department of Commerce,
about the increasing number of motorcyclist fatalities
and injuries (see Table III.l). The Highway Safety Act
of 1966 authorized the DOC to set minimum standards for
state highway safety programs.1 The Act also authorized
the DOC to withhold 10 percent of Federal highway con-
struction funds and all Federal highway safety funds
from any state which failed to comply with these stand-
ards. In 1967, the Secretary of Commerce issued
thirteen safety standards, one of which pertained to
2
motorcycle safety. One part of the motorcycle stand-
ard required states to enact mandatory helmet use laws.
There were several reasons for this particular
^irst, only seven states required any special
ior motorcyclists. Educational and


42
TABLE III.l
MOTORCYCLE FATALITIES AND REGISTRATIONS,
1958-1979
Year Fatalities Registered Vehicles Fatality Rate Per 10,000 Registered Vehicles
1958 720 521,290 13.8
1959 850 565 ,308 15.0
1960 790 574,032 13.8
1961 740 595,613 12.4
1962 810 660,517 12.3
1963 940 786,541 12.0
1964 1,240 985,744 12.6,
1965 1,650 1,381,956 11.9
1966 2,230 1,753,178 12.7
1967 2,170 1,953,022 11.1
1968 1,940 2 ,089,060 9.3
1969 1,870 2,315,708 8.1
1970 2,280 2,824,098 8.1
1971 2,650 3,343,695 7.9
1972 3,030 3,759,879 8.1
1973. 3,230 .4,371,011 7.4
1974 3,370 4,966,399 6.8
1975 3,189 4,964,070 6.4
1976 3,312 4,933,332 6.7
1977 4,104 4,881,150 8.4
1978 4,572 4,858,707 9.4
1979 4,850* 4,984,000* 9.7*
*Estimates Registered Vehicles (FHWA) Fatalities (NHTSA)
SOURCE: Registered VehiclesFHWA; FatalitiesNHTSA, Fatal Accident Reporting System;. U.S. Department of Transportation, A Report to the Congress on the Effect of Motorcycle Helmet Use Law
RepealA Case for Helmet Use (Washington, D.C.: National Highway
Traffic Safety Administration, April 1980).


43
training programs on motorcycle safety were either not
available, or not promoted. Next, with voluntary use of
helmets, 25 percent of motorcyclists used helmets. The
United States Public Health Service estimated in 1966
that 100 percent helmet usage would reduce motorcyclist
fatalities by 40 percent. Finally, the voluntary
programs being implemented were deemed by the DOC as too
expensive, and ineffective. After reviewing existing
mandatory usage laws in New York, Georgia, and Michigan,
the newly created Department of Transportation deter-
mined the greatest single measure to produce rapid
short term effects was mandatory helmet laws.
By the close of 1969, forty states had adopted
legislation requiring protective headgear. The following
is the statute passed by Colorado, and it is repre-
sentative of legislation passed by other states.
Colorado Revised Statute 13-5-159
Minimum safety standards for motorcycles and
motor-driven cycles.
I,o person shall operate any motorcycle or motor-
driven cycle on any public highway in this state
unless such person and any passenger thereon is
wearing securely fastened on his head a protec-
tive helmet designed to deflect blows, resist
penetration, and spread the force of impact; nor
shall any such vehicle be so operated unless the
operator and any passenger shall have in place on
his helmet a face shield or shall wear covering
his eyes goggles or eye glasses made of safety
glass or plastic lens. Each such helmet shall be
coated with a reflectorized substance, or have
attached thereto a reflectorized material, on
both sides and the back thereof, with a minimum


44
of four square inches of such coated substance _
or attached material in each of such locations.
The number of states adopting helmet legislation
continued to grow and by 1975, helmet use was required
of all motorcyclists in forty-seven states, the District
of Columbia and Puerto Rico (see Table III.2). In 1975,
the Department of Transportation was considering whether
the three states without such legislation should have
their safety programs disapproved, thereby losing federal
funds. Before final decisions were made, the Congress
4
passed the Highway S.afety Act of 1976. Section 208 (a)
of the Act removed the DOT'S authority to require the
states to adopt helmet laws, thereby preventing the
Department from imposing financial sanctions on any
state that repealed its law. This section also removed
from DOT the authority to withhold 10 percent of a
state's highway construction funds for failing to imple-
ment any of the standards promulgated under the Act.
State legislatures responded quickly to this lifting of
sanctions by Congress. By 1979, twenty-seven states had
either fully repealed their helmet laws, or revised them
so that only motorcyclists under eighteen were required
to wear helmets (see Table III-3).
From 1976 to 1979, the number of deaths from
motorcycle accidents increased from 3,312 in 1976 to


TABLE III.2
NUMBERS OF STATES* IMPLEMENTING**
HELMET LAWS BY YEAR
Year Number of States
1966 1
.1967 20
1968 16
1969 3
1970 1
1971 3
1972 2
1973 1
1974 1
1975 . 1
*Includes the District of Columbia and
Puerto Rico.
**Implementation date of legislation was
usually from one to six months after
enactment and date.
SOURCE: U.S. Department of Transportation, A Report to the
Congress on the Effect of Motorcycle Helmet Use Law RepealA
Case for Helmet Use (Washington, D.C.: National Highway Traffic
Safety Administration, April 1980).


46
TABLE III.3
STATUS OF HELMET REQUIREMENTS IN REPEAL STATES
BY YEAR OF REPEAL*
Year of Repeal Current Helmet Requirement
1976 (9)
Alaska Provisional License Holders
Only (Generally Minors)
Arizona Only under 18
Connecticut None
Iowa None
Kansas Only under 18
Louisiana Only under 18
North Dakota Only under 18
Oklahoma Only under 18
Rhode Island Only passengers
1977 (13)
Colorado None
Hawaii Only under 18
Indiana None
Maine None
Minnesota Only under 18
Montana Only under 18
New Hampshire Only under 18
New Mexico Only under 18
Oregon Only under 18
South Dakota Only under 18
Texas Only under 18
Utah Only under 18
Washington None
1978 (4)
Delaware Only under 19
Idaho Only under 18
Ohio Under 18 and first year novice
Wisconsin Only under 18 .
1979 (1)
Maryland Only under 18
*August 1979
SOURCE: U.S. Department of Transportation, A Report to the
Congress on the Effect of Motorcycle Helmet Use Law RepealA-
Case for Helmet Use (Washington, D.C.: National Highway Traffic
Safety Administration, April 1980).


47
4,850 in 1979. This represents an increase of 46 percent
over 1976 (see Table III.4). In response to this
increase, the Congress required the Department of Trans-
I
j portation to study the impact of the repeals, and issue
a report.^
This report was transmitted to Congress in
early 1980. In summary, it was based on a study of four
states: Colorado, Kansas, Oklahoma, and South Dakota.
These findings were presented in the report. Compliance
with the legislation varied between 95 and 100 percent.
Helmet use following repeal of the legislation ranged
16
between 40 and 60 percent. Head injuries were twice
as great for nonhelmet riders (see Table III.5). Fatal
head injuries ranged from three to nine times greater
for nonhelmet riders (see Table III.6).
'
Furthermore, the report stated that laws requir-
| ing only riders eighteen years or younger to wear helmets
are relatively ineffective. Unhelmeted riders sustain
more severe head injuries, which require longer hospital-
ization. This creates greater medical care costs, which
in turn places a substantial economic burden on society
in terms of insurance, emergency medical care, hospital,
rehabilitation, and welfare costs (see Tables III. 7,
III.8, III.9).


TABLE III.4
FATAL HEAD INJURIES PER (PRE-REPEAL 1,000 CRASH-INVOLVED VS. POST-REPEAL) RIDERS
State Pre-Repeal Post-Repeal Critical Level of Difference (p)
Colorado 16 73 .0001
South Dakota 15 24 .1335
Kansas 6 28 .0091
SOURCE: U.S. Department of Transportation, A Report to the Congress
on the Effect of Motorcycle Helmet Use Law RepealA Case for Helmet Use.
(Washington, D.C.: National Highway Traffic Safety Administration, April
1980).


TABLE III.5
MOST SEVERELY INJURED BODY LOCATION PER 1,000 CRASH-
INVOLVED RIDERS
Colorado Oklahoma South Dakota Kansas
Helmet Non .Helmet Non Helmet Non Helmet Non
Head 64 229* 47 171* 43 100* 61 142*
Face 50 40 15 46 11 6
Neck 9 9 15 14 9 9 12 2
Chest 70 50 32 40 20 32 18 6
Abdomen 24 15 49 37 16 25 14 8
Pelvis 30 19 15 11 13 3 150 79
Extremities 328 274 497 403 186 91
Total 575 636 670 722 298 276 255 237
NOTE: Kansas combines Head and Face, Pelvis and Extremities.
*Difference in head injury rates between helmeted and nonhelmeted riders are statistically
significant at p < .0005 level.
SOURCE: U.S. Department of Transportation, A Report to the Congress on the Effect of
Motorcycle Helmet Use Law RepealA Case for Helmet Use (Washington, D.C.: National Highway
Traffic Safety Administration, April 1980).


TABLE III.6
FATAL HEAD INJURIES PER 1,000 CRASH-INVOLVED RIDERS
(HELMETED VS. NONHELMETED)
Critical Level of
State Helmeted Nonhelmeted Difference (p)
Colorado 9 23 .0146
Oklahoma 11 63 .0001
South Dakota 13 38 .0150
Kansas 6 41 .0038
SOURCE : U.S. Department of Transportation, A Report to the Conqress on
the Effect of Motorcycle Helmet Use Law RepealA Case for Helmet Use (Washing
ton, D.C.: National Highway Traffic Safety Administration, April 1980).


TABLE III.7
PRELIMINARY RESULTS FROM A SURVEY OF 95 ACCIDENT-INVOLVED
RIDERS IN SOUTH DAKOTA
Helmet No Helmet Remarks
Average Temporary Medical Costs $1,947.10 $2,590.69 Consists of costs by doctor, emergency room, initial hospital stay, follow-up treatment for 12 months
Average Temporary Work Costs $1,067,63 $1,249.35 Consists of salary lost due to missing days work from existing job, incapacitation preventing looking for a new job or still unemployed
Motorcycle Repair Costs $619.60 $474.25 Costs of repairing damage resulting from accident
NOTE: It is interesting to note that average medical costs incurred by nonhelmeted
drivers is one and one-third times that of helmeted drivers. Similarly, work
costs for nonhelmeted drivers is about one and one-fourth that of helmeted
drivers.
SOURCE: U.S. Department of Transportation, A Report to the Congress on the Effect of
Motorcycle Helmet Use Law RepealA Case for Helmet Use (Washington, D.C.: National Highway
Traffic Safety Administration, April 1980).


52
I



TABLE III.8
HOSPITAL DATA FOR MOTORCYCLE ACCIDENTS WHICH OCCURRED
DURING 8/28/76 THROUGH 8/28/78
Dallas County Harris County
Item Descriptor Pre-Repeal Post-Repeal Pre-Repeal Post-Repeal
TOTAL 110 156 82 90
Hospital Disposition:
Received treatment and released 46 68 59 36
Hospitalized 45 57 8 24
Dead on arrival 7* 20* 13** 30**
Dead within 30 days 9 10 2 0
Unaccounted 3 1 0 0
Duration of Hospitalization:
Less than 5 days 79 118 76 77
5 days but < 10 days 12 13 2 6
10 days but < 15 days 2 10 2 2.
15 days but < 20 days 5 6 0 1
20 days but < 25 days 2 2 0 1
25 days but < 30 days 3 2 0 1
30 days or more 7 5 2 2
Average Duration (days) Cost of Accident:* 6.8 5.7 3.6 4.4
$ 520 1 0 0 0
2,190 32 39 33 21
4,350 28 50 25 25
8,055 25 28 8 9
86,955 2 4 0 3
192,240 0 2 0 0
Undetermined 22 33 16 32
Statistically significant increase in percent DOA in the post-repeal period at
p = .0359 level.
Statistically significant increase in percent DOA in the post-repeal period at
p < .0001 level.
NOTE: In 1977, the first full year after the mandatory use of motorcycle helmets was
repealed, the Bexar County Hospital in Bexar County, Texas received 28 motor-
cycle patients with head injuries for a total cost of $42,189.31 of which only
$3,353 was collected and the balance remained a debt to the public at large.
This was reported to the NHTSA through the docket 79-07 by the Neurology
Clinic of that hospital.
SOURCE: U.S. Department of Transportation, A Report to the Congress on the
Effect of Motorcycle Helmet Use Law RepealA Case for Helmet Use (Washington,
D.C.: National Highway Traffic Safety Administration, April 1980).


53
TABLE III.9
SEVENTY-ONE MOTORCYCLISTS' HOSPITAL BILLS*
Financial Responsibility Dollars Percentage
Commercial Insurance 17,919 11.0
Blue Cross 37,607 23.1
Medically Indigent Fund 40,942 25.5
Workmen's Compensation 6,530 4.0
Patients 5,591 3.4
Medicaid 1,438 .8
Unpaid 52,436 32.2
*Admitted to Denver General Hospital July 1976-June 1977.
Amounts and Percentage Distribution According to Financial
Responsibility.
SOURCE: U.S. Department of Transportation, A Report to the
Congress on the Effect of Motorcycle Helmet Use Law RepealA Case
for Helmet Use (Washington, D.C.: National Highway Traffic Safety
Administration, April 1980).


54 .
According to the Department of Transportation,
voluntary programs are ineffective and more costly than
mandatory laws. There are no data which support the
argument that helmets cause accidents or injuries.
Finally, the Department of Transportation maintained
these findings are consistent with thirty years of
research. The position of the report was clearly stated
the law is considered to be the single most effective
action that a State can take to reduce motorcyclists'
deaths and serious injuries.
There seems to be little doubt that mandatory
use of helmets for motorcyclists results in a decrease
of the number of fatalities and injuries of riders. The
law does exactly what it was intended to do, which is
make motorcycle riding more safe. The question still
remains, however, concerning the "right" of the govern-
ment to impose such legislation.
An overview of the various court cases concerning
the legitimacy of mandatory helmet usage legislation
reveals the issues raised by Mill's principle to be the
ideological rationale for both the opponents and
supporters of such legislation. In essence, the debate
concerning the legitimacy for such legislation is
centered upon whether riding a motorcycle without a
helmet is self-regarding or other-regarding action. Where


55
the courts determined it was other-regarding behavior,
they concluded the State had legitimate power to pass
such legislation. In all but two instances, the legis-
lation was upheld as legitimate use of State police
7
power. There were two general arguments presented in
support of the statutes: the first will be referred to
as the "flying object" argument, and the second will
concern the direct and indirect "social costs" resulting
from accidents involving unhelmeted riders.
The "flying object" argument can be summarized in
this manner: a motorcyclist is vulnerable to "flying
debris," be it dirt, leaves, sticks, stones, or other
matter, which may adversely affect the control of the
motorcyclist. This, in turn, can result in loss of
control of the motorcycle, and cause "harm to others"
by crashing into other motorists. Thus, the use of
protective headgear protects others by- providing clear
vision and protection from "flying objects." The courts
of Wisconsin and New Jersey presented this argument as a
means of establishing the legislation as a legitimate
exercise in providing for the general welfare and safety
g
of the public, thereby making it constitutional.
The second argument in support of such legisla-
tion concerns the costs inflicted on others by the
9
unhelmeted riders involved m accidents. These costs


56
include the medical costs for victims, who often end up
in municipal hospitals; the increase in insurance
premiums resulting from the increased length of time
spent in hospitals; along with the severity of injuries
incurred by unhelmeted riders, particularly when compared
to helmeted riders. Furthermore, the Wisconsin Supreme
Court presented an additional argument for a state with
comparative negligence.
In a comparative negligence state, with heavy respon-
sibilities as to lookout and control placed upon all
vehicle operators, the very real possibility of being
held at least partially responsible for an accident
gives every user an interest, on other than humani-
tarian concerns, in provisions that lessen the
probabilities of death or disability as an outcome
of a highway encounter. (Bisenius v. Karns 42 Wis
2d 42, 165 N.W. 2d 377, 381-82 (1969)).
Another example of social cost concerns "wards
of the state," which could plausibly include either the
severely injured rider, or the dependents of certain
fatalities. The District Court of Massachusetts extended
the social costs to other functions as well.
From the moment of the injury, society picks the
person up off the highway; delivers him to a munic-
ipal hospital and municipal doctors; provides him
with unemployment compensation if, after recovery,
he cannot replace his lost job,.and, if the injury
causes permanent disability, may assume the respon-
sibility for his and his family's continued subsis-
tence. We do not understand a state of mind that
permits plaintiff to think that only he himself is
concerned. (Simon v. Sargent 346 F. Supp. 277, 279
(Mass. 1972)).


57
Thus, the social costs argument is quite simple
and straightforward: individual behavior resulting in
the use of funds, facilities, and personnel supported by
the taxpayers is, inherently, "other-regarding" behavior,
and becomes subject to legitimate police power.
There is a great deal of irony in reviewing the
legislative history of the legislation. The intention
of the Department of Transportation could not be clearer:
it sought to decrease the number of fatalities and
injuries on the public highways, and determined manda-
tory helmet usage legislation for motorcyclists would
do precisely that. They were correct, for the legis-
lation does just that.
The intent of the various state legislature is
more varied, but it can be argued forcefully that those
which repealed the law were not primarily concerned with
either protecting the motorcyclists or other motorists,
or reducing the impact on the public treasury. Based
upon the quickness of their repeals, following the
lifting of sanctions by Congress, we can conclude that
part of the motivation for passing the legislation
originally was to avoid losing federal funds.
Finally, the courts utilized the argument that
self-protection was not justification for such legisla-
tion. The courts allowed such legislation primarily


58
because they deemed riding motorcycles without a helmet
constituted "harm to others." Therefore, the courts
emphasized the "flying object" argument and the "social
costs" argument as the rationale for such legislation.
What is significant about the rationale of the
courts is it places Mill's principle squarely at the
center of the legislation. The courts acknowledged that
two spheres of behavior do exist.^ They also acknowl-
edged the only justification for restricting individual
behavior is when it affects others in a negative manner.
They therefore developed arguments that went beyond
the obvious self-protection intentions of the Department
of Transportation, in order to justify such legislation
Mill's principle is of primary importance to such legis-
lation for these reasons. The courts acknowledged the
existence and validity of distinguishing between self-
regarding and other-regarding behavior. The courts
overwhelmingly determined the legislation concerned
itself with other-regarding behavior. It is important to
determine if Mill would disagree with this position, and
this question will be one of the issues addressed in the
next chapter.


59
NOTESCHAPTER III
^Highway Safety Act of 1966 (Public Law 89-564,
89th Congress S. 3052), 9 September 1966.
2 .
Highway Safety Programs Standards: Department of
Transportation, July 1967, L.C. 67-62464.
3
Colorado Revised Statutes 1963, 1969 Permanent
Cumulative Supplement, Bradford-Robinson Printing Co.,
Denver, Colorado.
^Highway Safety Act of 1976 (Public Law 94-280,
94th Congress).
5DOT-HS-8 05-312, p. IV-2.
6Ibid., p. IV-5.
7 . .
AMA v. Davids, 11 Michigan. App 351, 158 N.W.
2d 72 (1968). The Court of Appeals of Michigan rejected
the argument of the Michigan Attorney General that the
State has an interest in the viability of its citizens
and can legislate to keep them healthy and self-
supporting. The court maintained this line of reason-
ing could lead to unlimited paternalism. A summary of
the ruling:
"Proceeding requesting a declaration of rights as
to the constitutionality of statutory amendment
requiring motorcyclists and riders to wear crash
helmets. The Circuit Court, Inham. County, Richard
E. Robinson, J., upheld the amendment, and appeal
was taken. The Court of Appeals, Miller, J., held
that amendment requiring motorcyclists and riders
to wear crash helmets was unconstitutional since
it had no relationship to the public health, safety
and welfare."
This ruling was later reversed.
See, e.g., People v. Fries 42 111. 2d 446,.350
N.E. 2d 149 (1969). In this case the Illinois Supreme
Court ruled the mandatory helmet-usage statute violated
the Fourteenth Amendment. A summary of the ruling:
"Defendant was convicted in Circuit Court, Madison
County, A. A. Matoesian, J., of operating motorcycle
without wearing protective headgear and he appealed.
The Supreme Court, Kluczynski, J., held that statute


60
requiring operators of motorcycles and every passen-
ger thereon to wear protective headgear has as its
purpose the safeguarding of the person wearing the
headgear and involves essentially matter of personal
safety is beyond police power of legislature and
is violative of Fourteenth Amendment."
O
Bisenius v. Karns 42 Wis. 2d 42, 165 N.W. 2d
377 (1969). The Supreme Court of Wisconsin offered
support for the "flying object" argument as justifica-
tion of mandatory helmet-usage legislation.
"The very term, 'protective headgear' implies pro-
tection of the head of the wearer. It must be
conceded that this particular statute is intended
primarily to diminish the severity of the accident
upon the victim, himself. But can we say that such
safety requirement does not affect or concern at
all other users of the public highway?
"Anything that might cause a driver to lose
control may well tragically affect another driver'.
If the loss of cyclist control occurs on a crowded
freeway with its fast-moving traffic, the veering
of a cyclist from his path of travel may pile up
a half-dozen vehicles. So, as to the helmet require-
ment law, one question that arises is whether the
presence of a protective helmet would, in some cases
and under some circumstances, make less likely the
diverting of attention or loss of its driver."
A summary of the ruling:
"Declaratory judgment action brought by motorcyclist
challenging validity of certain safety statutes
relating to the operation of motorcycles. The Dane
County Circuit Court, W. L. Jackman, Circuit Judge,
upheld the statutes, and an appeal was taken. The
Supreme Court, Robert W. Hansen, J., held, inter
alia, that sole purpose, effect and result of
safety statutes in question was not to protect the
motorcyclists, riders or both against themselves;
rather, the statutes concerned or benefited other
persons, particularly other users of the public high-
ways; accordingly, enactment of the statutes were not
outside scope of state's police power authority."
See, e.g., State v. Mele, 103 N.J. Super. 353, 247 A.2d
176 (1968). The court agreed with the "flying object"
argument.
"At first glance, a requirement of protective head-
gear seems aimed only at protection of the individ-
ual. However, serious thought indicates otherwise.
The general public has a right to be protected from


61
the accidents which might result from a blow on the
head received from objects kicked up from the high-
way. The blow, however slight, might be just enough
to distract a motorcyclist and cause him to lose
control and become'a menace to other vehicles or
pedestrians on the highway."
A summary of ruling:
"The defendant was charged with operating a motor-
cycle without wearing an approved protective helmet.
The Municipal Court of Jersey City rendered judg-
ment, and defendant appealed. The County Court,
Duffy (Paul.J.), J.C.C., held that statute requir-
ing motorcyclists to wear approved protective hel-
mets bears reasonable, real and substantial relation
to public health, safety and welfare and is consti-
tutional as valid exercise of police power of State."
The ruling was affirmed.
9
Simon v. Sargent 346 F. Supp. 277 (Mass. 1972).
The United States District Court based its support for
mandatory helmet-usage legislation on the fundamental
grounds that the public has an interest in minimizing
the impact upon the public treasury. A summary of the
ruling:
"Action for declaratory judgment that a state cannot
constitutionally require unwilling motorcyclists to
wear protective headgear. The three-judge District
Court held that Massachusetts statute requiring
motorcyclists to wear protective headgear is not
violative of due process, notwithstanding claim
that police power does not extend to overcoming
right of an individual to incur risks that involve
only himself, since public has an interest in mini-
mizing resources directly involved, in that from
moment of injury, society picks the person up off
the highways, delivers him to a municipal hospital
and municipal doctors, provides him with unemploy-
ment compensation if, after recovery, he cannot
replace his lost job, and, if injury causes perma-
nent disability, assumes responsibility for his and
his family's continued subsistence."
See, e.g., State v. Anderson, 3 N.C. App. 124, 164 S.E.
2d 48 (1968). The Court of Appeals of North Carolina
argued that riding a motorcycle without a helmet
adversely affected insurance premiums for others, there-
fore, the statute was valid.
"In North Carolina, by reason of our Motor Vehicle
Safety and Financial Responsibility Act, G.S., Chap.
20, Art. 9A, most operators of motor vehicles in our
State are required to carry motor vehicle liability


62
insurance at a heavy annual premium cost. Any
statute which can reasonably be expected to reduce
that premium cost necessarily affects the welfare
of the public at large. Reducing the number of
deaths and the severity of injuries to riders of
motorcycles on the streets and highways of our
State and the consequent reduction in liability
insurance premium costs does, therefore, affect
not alone that limited class of persons who ride
motorcycles, but also directly and beneficially
affects all operators of motor vehicles in our
State."
See, e.g., Love v. Bell 171 Colorado 27, 465 P.2d 118
(1970). The Supreme Court of Colorado argued in favor
of such legislation, based upon the social costs of
riding motorcycles without protective headgear.
"It is, of course, part of romantic tradition that
an individual ought to be able to lead an adven-
turous and swashbuckling existence without regard
to his own safety and without interference from the
King. But when that individual as a result of
this freewheeling activity seriously injures or
kills himself, the ultimate result is unfortunately
not always borne by him alone. Today our society
humanely accepts as one of its functions the respon-
sibility for relieving the economic suffering of
its members. The evidence in the record here
clearly shows a higher frequency of serious head
injury and death among motorcyclists wearing hel-
mets. Persons often become public charges because
of their prolonged hospitalization for serious
injury, and families are often required to be sup-
ported by public welfare as a result of the death
of their breadwinner. We would point out that this
Court has held that the police power relates not
merely to the public health and public physical
safety, but also to public financial safety, and
that laws may be passed within the police power to
protect the public from financial loss.
^AMA v. Davis, 11 Michigan, App.351, 158 N.W.
2d 72 (1968). See, e.q., Love v. Bell,171 Colorado 27,
465 P. 2d 118 (1970) .
^State v. Anderson, 3 N.C. App. 124, 164 S.E.
2d 48 (1968). See, e.q., State v. Mele, 103 N.J. Super.
353, 247 A.2d 176 (1968).



CHAPTER IV
MILL. AND PATERNALISM: SPECIFIC
IMPLICATIONS AND FAILINGS
We have examined Mill's essay, along with an
analysis of mandatory helmet-use legislation. What
value can be found in Mill's principle in determining the
legitimacy and wisdom of this type of legislation? What
criteria should be used in determining the wisdom of
State interference in behavior which might be regarded
as primarily self-regarding? Finally, does our analysis
of helmet legislation suggest there are certain improve-
ments and amendments which would strengthen Mill's
argument, as it applies to mandatory helmet-use legisla-
tion? These are the primary questions and issues to be
addressed in this chapter.
Does Mill's principle of liberty support
mandatory helmet usage legislation? First, it is neces-
sary to determine if riding a motorcycle without a
helmet constitutes self-regarding behavior, for if it
does, then Mill would certainly oppose such legisla-
Ition.
The mere act of riding a motorcycle without a
helmet, in itself, does not harm others. It can be


64
considered harmful to others only upon the event of an
accident. Because the harm is therefore an indirect
consequence of the initial action, Mill might well
consider such harm as "contingent injury," and therefore
2
immune to interference. Yet, there are other criteria
Mill wanted us to consider. He stated that behavior
which presents a definite damage or definite risk of
3
damage to others can be legitimately regulated.
There is a definite, though numerically undeter-
mined, risk of having flying debris strike the rider,
thereby causing loss of control of the motorcycle, and
creating a real danger for other motorists or pedes-
trians. This being the case, Mill would recognize
the possibility of considering the action of an
unhelmeted rider as other-regarding.
The other manner in which such behavior affects
others is the social costs passed on to the public
treasury. The data presented in Chapter III are con-
vincing enough to conclude that the costs to the public
treasury, while undetermined, do constitute a degree of
harm to others. Based upon the social costs and risk of
harming others, Mill would most likely conclude that
riding a motorcycle without a helmet is other-regarding
behavior, and is properly open for discussion concerning
interference.


65
Having concluded that riding a motorcycle with-
out a helmet is other-regarding behavior, Mill would
then determine the propriety of interfering with such
behavior. In the Applications section of his essay,
Mill presented three main objections to government
4
interference with other-regarding behavior. The first
two objections would not directly apply to the legis-
lation, but the third one does. This third objection
reflected Mill's concern about adding unnecessarily
to the power of the State. I believe Mill would
consider the act of riding a motorcycle without a helmet
to be other-regarding behavior, but be opposed to the
mandatory helmet usage legislation. It would be clear
to Mill that the primary consequence of such legislation
was to protect the motorcyclists from their own willful
action.
Certainly, the arguments concerning "flying
objects," and "social costs" are worth considering,
and they have provided a rationale to the courts for
legitimizing the legislation. The DOT, however, had
one primary intention when it proposed such legislation,
and that was to reduce the number of fatalities and
injuries, not to other motorists, but to the riders of
motorcycles. The legislation does exactly that, and at
a minimal cost to the treasury. The benefits to others


66
I are only secondary consequences of the legislation, but
Mill would acknowledge such benefits, and give them
due consideration.
Mill, however, was quite clear in stating that
5
a person is sovereign over his own mind and body. He
rejected the right of the State to interfere in one's
g
behavior for his or her own good. Mill believed a
person knows his own interests best, and he should have
the right to make errors of judgment.
If the errors adversely affect the public
treasury, does the State have the right to interfere?
Mill would argue the State has the right to interfere,
but should not automatically do so. He would argue it
would depend upon the degree of impact upon the treasury.
For example, Mill would acknowledge that any State has
a limited amount of resources, both human and fiscal.
Therefore, if the costs to the public treasury are
substantial, then a situation might well arise in which
certain basic needs, such as the feeding and housing of
the disadvantaged, are not being met because the
resources are being spent upon less beneficial services.
Thus, it might be argued that by allocating public
resources to injured motorcyclists the "liberty" of
others to enjoy the basic necessities of a decent
living is being restricted.
i


67
This argument is valid, but it is essential to
determine at what point a liberty should be restricted
because of its cost to the public treasury. If the
figure is $5 billion, for example, a strong case can
be made for restricting such behavior. This figure
would exceed the total amount spent by the federal
government in 1984 for mass transportation. It would be
approximately five times the amount the federal govern-
ment spent that same year on the National Cancer Insti-
7
tute. There is no one magic number which can determine
at what point individual behavior should be restricted.
I use this figure only to make the point that social
costs might, on their own, be justification for inter-
ference, for the public resources are limited.
It should be noted, however, that Mill rightfully
argued against what he referred to as the "social rights"
argument. As noted in Chapter II, proponents of the
"social rights" theory maintained no human behavior can
be considered self-regarding, since all individual
action, in some manner, ultimately affects others. Mill
warned that this type of reasoning would give the State
unlimited freedom to enter all aspects of individual
behavior. I agree with Mill's concern, and believe it
equally applies to those who use the public treasury as
justification for passing paternalistic legislation, on


68
the grounds that such laws save the taxpayers money. If
this argument is carried to its extreme, then the State
might well be justified in sterilizing poor people, in
order to reduce the number of children on welfare. It
might well restrict the.consumption of sugar, alcohol,
tobacco, and preservatives, to reduce the medical costs
to the public treasury. It has been acknowledged that
in cases in which the costs to the treasury are substan-
tial, interference might be justified. It should also
be acknowledged that if we are not vigilant about
distinguishing between that action which is substantial
and that which is only significant or even minimal, we
are vulnerable to unlimited interference on the grounds
that it saves tax dollars.
There is no inherent right for citizens to have
their taxes reduced by restricting individual behavior,
especially when the society has decided to provide
certain benefits, which could be influenced, directly or
indirectly, by almost all human behavior. Mill's
criteria for such interference could be posed as a
question. Does the collective harm of such action out-
weigh the collective gain? This is a most difficult
question to answer, for we are often forced to determine
collective harm on monetary grounds, and balance them
with the immeasurable but, Mill would argue, quite


69
substantial benefits society reaps from allowing its
8
citizens the liberty of making errors of judgment.
Mill would maintain that legislation primarily
designed for protecting people from their own actions,
no matter how foolish, should not automatically be
allowed, simply on the secondary grounds that it will
possibly protect the safety of others, or reduce the
impact upon the public treasu.ry. Certainly, if the
costs to the public treasury are great enough, then this
alone might justify interference. It is not clear that
this is the case with unhelmeted cyclists. It would
appear that the twenty-two states which repealed the
legislation did not consider such costs to be so extra-
9
ordinary as to justify the interference.
Mill would be greatly concerned about the danger
of adding to the power of the State, and he would take
a strong stand against this type of paternalistic legis-
lation. He would want us to be constantly on guard
against adding needlessly to the power of the State. He
would probably not be convinced the harm done to others,
through "flying objects" or costs to the public treasury,
outweighs the negative consequences of this addition to
State power, including the denial of cyclists' liberty
to wear or not wear helmets. Specifically, Mill would
examine the primary intent and the primary consequence


70
of the legislation, and he would probably conclude that
it is fundamentally designed to protect the rider. On
the grounds that citizens are sovereign over their own
body and mind, Mill would likely oppose the legislation.
I have concluded that Mill would oppose mandatory
helmet usage legislation. Is he right in doing so? I
agree with Mill's hypothetical conclusion, for I find
value in his criteria for determining the legitimacy of
such legislation. First, as stated earlier, the value
of his two-sphere model is great. We must be constantly
on guard whenever we expand the power of the State,
especially when it is primarily designed to protect one
from one's own actions. Mill's principle provides us
with a workable model, first in determining what behavior
is rightfully considered other-regarding, and then in
determining if that behavior should be interfered with.
Furthermore, it is essential that other criteria
be introduced into the process, beyond a monetary one.
Merely because an individual's behavior costs the public
treasury money, it should not automatically be interfered
with. There are certain benefits to society which cannot
be measured in dollars, such as the enjoyment of liberty.
We must weigh the benefits of diversity and individ-
uality, before the decision is made.


71
How do we determine at what point the behavior
should be interfered with? This is not an easy task,
for the degree of cost is vital. It would be arbitrary
and subjective to determine a specific level of monetary
costs, which would be the determining point for inter-
ference. It is vital, however, that whatever level of
costs is used, it represent a substantial amount, for
there will always be those who argue that any drain on
the public treasury is justification for interference.
What essential principles should be brought
forth in considering such interference? First, we must
address the issue of liberty. What particular liberty
is being restricted? This is important, for not all
liberty is of equal value. For example, the liberty
to enjoy the basic necessities of sustaining life is
more essential than the liberty to act upon a whim or
ride helmetless. Mill forcefully argued that liberty
has intrinsic value and is not only beneficial to
society, but essential to any good society.
The next principle to consider is that of the
general welfare.. To what extent is the welfare of
others enhanced? The emphasis here is upon enriching
the general welfare to a significant degree. How are
others directly benefited by such interference? State
coercion should not be viewed lightly, and any addition


72
to it should be significantly beneficial to the general
welfare of others. The term "enhanced" is used, for it
emphasizes that the erasing of behavior that is merely
inconvenient or somewhat costly is not necessarily wise.
Positive benefits for others should be measurable and
definite, if we are to seriously consider such legis-
lation.
. .The third principle to consider is state
authority. To what degree does the interference expand
the authority of the State and is this authority already
too great? Is the interference a proper, legitimate,
and wise expression of the power of the State? This
is essential to consider, for in helmet legislation we
have already concluded that the state has a legitimate
right to consider interference, but would be unwise to
interfere.
Beyond these three general principles, other
questions should be asked as well. First, we must
closely examine the primary intent of the legislation.
Is it to reduce the social costs to the public? If
so, is mandating self-protection the best means of
doing so? Second, before we pass such legislation,
great care and effort should be put forth in deter-
mining the actual costs to others, resulting from the
individual behavior. Since little individual behavior


73
is purely self-regarding, we must address the complex
issue of individual liberty vs. public interests, on
a case by case basis, with the aid of utilizing these
principles and concerns.
Having established these principles and guide-
lines, we may apply them to mandatory helmet-usage
legislation, in order to provide an example of their
value. What liberty is being restricted with the imple-
mentation of such legislation? The liberty of diversity.
This is the freedom to be different; to choose one's
own path; to, in essence, have the liberty to be
foolish and unwise.
To what degree is the general welfare enhanced
by such legislation? The lives of productive citizens
are saved, and the drain upon the public treasury is
reduced. These benefits are not easily calculable,
for in the former, many of the rewards are intangible
ones assigned to family and friends. The latter, as
noted in Chpater III, are difficult to measure, or at
least have not heretofore been calculated.
To what degree is the authority of the State
expanded? This is most certainly a judgment call, but
there can be little doubt that this type of legislation
is becoming more common, as can be witnessed by the
increase of mandatory seat-belt laws.


74
What is the primary intent of the mandatory
helmet-usage legislation? We have concluded the primary
intent is self-protection of the motorcyclists. If the
primary intent was to reduce the impact upon the public
treasury, then this legislation is not the best means
of achieving the goal. It would be more desirable and
effective to require sufficient insurance for all motor-
cyclists to cover all the medical costs incurred by the
State. This would make the privilege of riding a
motorcycle more expensive, and would discriminate
against those riders with meager incomes. Still, it is
a superior alternative, for it places the cost upon the
particular motorcyclist, rather than upon the public
treasury. This additional cost to the rider is quite
comparable with similar expenses incurred by hunters,
boaters, and other recreational participants.
Finally, as noted in Chapter III, the actual
cost to the State is undetermined. Therefore it is
difficult to judge whether the costs are substantial
enough to justify interference, on social costs alone.
Mill has presented us with a reasonably defini-
tive model for analyzing paternalistic legislation.
He developed a convincing argument on the value of
liberty in a good society. Yet, there remains an
important contradiction, indeed the primary weakness,


75
in Mill's essay that needs to be addressed. Mill had
three assumptions upon which his principle of liberty
was based. The first is liberty, which Mill placed
great value upon. The second is social utility. The
thrust of On Liberty, in fact, lies in Mill's contention
that liberty has greater social utility than does State
authority. Third, Mill, while never being in the
orthodox capitalist camp, basically supported the
market economy. Therein lies the basic contradiction.
The contradictions and forces inherent in
capitalism are often at odds with both social utility
and individual liberty. Capitalism, by allowing the
excesses of certain individuals, creates conditions
under which excessive governmental intrusion and regu-
lation become necessary.'*'^ For example, much of the
growth of government, be it at the local, state, or
federal level, has been in the areas of providing
certain basic goods and services for those who are not
benefiting from the system.^
Likewise, the growth of regulatory agencies
serves as another example of how the forces of capital-
12
ism create the necessity for regulating its excesses.
While it is not exclusive to capitalism to create a
powerful government, certainly the growth of State
13
power has corresponded with the growth of the Market.


76
Mill placed his admirable principal of liberty within
an economic system which is internally at odds with the
very liberty he promoted. Certainly, there is a wealth
of evidence to support the argument that the Market
14
restricts liberty for many of its citizens. There
are countless examples of sexism, racism, and imperialism
15
throughout the history of capitalism. In general,
the market mechanism restricts the life options of the
losers in the economic, social, and political war of
all against all. I do not assert that these forces are
unique to capitalism; rather, they seem to be integral
characteristics of it, and in order to achieve the
degree of liberty Mill sought, we need to recognize
the inherent conflicts within the Market, and develop
a society more conducive to equal liberties for all.
The purpose of this thesis, however, is an
analysis of paternalistic legislation, not a radical
analysis of Mill's principle.
One may ask, what does the Market have to do
with this type of legislation? What is the connection
between paternalistic legislation and the Market?
Paternalistic legislation is often the consequence of
the excessive regulatory government that has resulted
from the development of capitalism. As Mill warned, the
State is an accumulative institution, and as it reaches


77
into our lives to provide basic human needs and services
for those disadvantaged by the Market, it increasingly
feels comfortable to go further and protect its
citizens, not just from the greed and excesses of others,
but from their own foolishness as well. Perhaps more
ominously, the extensive government feels free to go
further to protect and extend its own powers.
Second, the market has made the citizens and
political leaders highly sensitive to social costs and
government spending, particularly since the federal
deficit is so high. Therefore, paternalism is often
justified as a way to cut governmental spending, and to
have us focus on minimal matters, when more fundamental
issues need to be addressed. The amount of money saved
by mandating motorcyclists to wear helmets is a mere
fraction of what we might save, if, for instance, we
explored the savings of conserving our natural resources
or reducing our military expenditures. Yet, it is
easier for politicians to require motorcyclists to wear
a helmet, than to stop the exploitation of our land or
the growth of the military-industrial complex. Like-
wise, it seems easier for the political leaders to
mandate the mandatory use of seatbelts, rather than
mandate.passive restraint systems, such as the air-bag,
which would place the burden upon the manufacturer.


78
In a final analysis, what might we do to utilize
the strengths of Mill's principle, while avoiding the
weaknesses of his argument? First, we can do more
within our existing conditions to achieve more liberty.
Mill gave a strong argument in favor of the freedom of
16
thought and opinion. Not only would this be benefi-
cial throughout all aspects of our society, but educa-
tion programs and information distribution could be
better utilized instead of paternalistic legislation.
If we do not wish for citizens to act foolishly, it is
better, whenever possible, to change their behavior
through education, rather than coercion.
Rather than legislating individual behavior, it
would be more desirable to mandate the safety of
products, and place the responsibility upon the manu-
facturer, rather than the consumer. Obviously, there
will be a limit to the effectiveness and reasonableness
of doing so, for certain products, like the automobile,
inherently contain the risk of death or injury. Still,
in matters such as seat belts or air bags, it would be
better to address the issue of safety at the point of
manufacture, rather than consumption. Why? To mandate
safe products is not restricting the liberty of indi-
viduals to act wisely, or unwisely. It is simply
requiring the manufacturer to sell a safe product. As


79
with any such additional expense, it either reduces
profits if the market is competitive or is passed on
to the consumer if the market is oligopolistic. Upon
occasion, these additional costs to producers or
consumers may be prohibitive. I find no certain means
of escaping this dilemma, but nevertheless, maintain it
is preferable to paternalistic legislation. (More
vigorous regulation against oligopoly would shift the
added cost to the rich rather than the poor or middle
income consumers.)
The education of the citizens about the true
nature of the deficit, and its main culprits, would also
be helpful in slowing the trend towards paternalism.
If the citizens were better informed about far more
substantial means of cutting government spending,
besides making motorcyclists wear helmets, they would
likely be more tolerant of others' behavior, no matter
how foolish it might be. Along with this more clear-
sighted approach to cutting spending, I would add the
need to be constantly vigilant against the "social
rights" proponents. We must not allow social costs to.
be used as automatic justification for restricting
behavior and mandating self-protection. .
There are fundamental changes which must be
implemented, in order to promote the liberty Mill


80
persuasively argued for. Individual liberty will always
be at odds, on occasion, with the general welfare and
the society. To argue that once capitalism is discarded
for some other system, these conflicts will disappear,
would be quite foolish. Yet, it does seem,feasible to
develop a society based upon cooperation and altruistic
characteristics, rather than capitalism, which promotes
selfishness and competition. The areas and points of
conflict between individual liberty and the general
welfare would be substantially fewer than in our present
system. Enough time, over 130 years, has passed since
Mill asserted the benefits to society by the Market
17
outweighed the disadvantages. It is certainly
arguable that not only does everyone not benefit from
the market, in terms of liberty, but the degrees of
liberty enjoyed by those who do derive benefits, are
18
substantially unequal.
Thus, we must take the wisdom of Mill's princi-
ple, complete with the two-sphere model, and place it
within a society more conducive to liberty and the
common good. A society based upon cooperation and
tolerance would be an example of such a society. Such
a society would be more hesitant to restrict individual
behavior, or mandate self-protection, because it would
have less need to do so. It is not unique to capitalist


81
societies to mandate self-protection, but there are
inherent, entropic forces within them which promote
such legislation, and to get the wisdom and benefit
from Mill's principle, it is necessary to go beyond his
own f1awed founda ti on.


82
NOTESCHAPTER IV
John Stuart Mill, Utilitarianism, On Liberty,
and Considerations on Representative Government, ed.
H. B. Action (New York: E. P. Dutton and Co., 1972),
p. 73.
Ibid., p. 138. Mill stated:
"But with regard to the merely contingent, or, as
it may be called, constructive injury which a per-
son causes to society, by conduct which neither
violates any specific duty to the public, nor
occasions perceptible hurt to any assignable
individual except himself; the inconvenience is
one which society can afford to bear, for the
sake of the greater good of human freedom."
^Ibid.
^Ibid., pp.. 164-65.
^Ibid., p. 73. Mill stated:
"In the part which merely concerns himself, his
independence is, of right, absolute. Over.himself,
over his own body and mind, the individual is
sovereign.
"That the only purpose for which power can be
rightfully exercised over any member of a civilised
community, against his will, is to prevent harm to
others. His own good, either physical or moral, is
not a sufficient warrant. He cannot rightfully be
compelled to do or forbear because it will be better
for him to do so, because it will make him happier,
because, in the opinion of others, to do so would be
wise, or even right."
^Ibid., p. 125. Mill stated:
"There is no reason that all human existence should
be constructed on some one or some small number of
patterns. If a person possesses any tolerable
amount of common sense and experience, his own mode
of laying out his existence is the best, not because
it is the best in itself, but because it is his own
mode."


83
7
Budget of the United States Government Fiscal
Year 1986, Executive Office of the President: Office of
Management and Budget, p. 5-68 and p. 8-91.
g
Mill, Utilitarianism, On Liberty, and Consider-
ations on Representative Government, pp. 120-21.
9
For example, in 1977 the legislative hearings
in Colorado to consider repeal of the mandatory helmet-
usage law, contained expert witnesses testifying that
the costs to the public treasury were "substantial."
One witness quoted the social cost of each fatality to
be $225,000. Senator Ralph Cole, agreeing with this
line of opposition to the repeal, stated that the public
has a stake because it picks up the bill. Yet, other
senators supported repealing the law on the grounds.
that, "there is no way you can legislate safety in every
facet of a person's livelihood. Responsibility is going
to have to start somewhere." While no specific reasons
were given by each legislator on the primary motivation
behind his or her vote, it can be assumed, at the very
least, that the social costs were not "substantial"
enough to justify continuing the legislation. The law
was repealed during the 1977 legislative session.
^For examples: Theodore J. Lowi, The End of
Liberalism (New York: Norton,.1969); Francis E. Rourke,
Bureaucracy, Politics, and Public Policy, 2nd ed.
(Boston: Little, Brown, 1978).
11
For examples: Edward S. Greenberg, Understand-
ing Modern Government: The Rise and Decline of the Ameri-
can Political Economy (New York: Wiley, 1979); Michael
Best and William Connolly, The Politicized Economy
(Lexington, Mass.: D. C. Heath, 1976).
12
Barry Commoner, The Closing Circle (New York:
Alfred Knopf, 1971).
13
For examples: William G. Domhoff, The Higher
Circles: The Governing Class in America (New York:
Vintage, 1970); Ralph Milibrand, The State in Capitalist
Society (New York: Basic Books, 1969).
14
For examples: Robert Blauner, Alienation and
Freedom (Chicago: University of Chicago Press, 1964);


84
Walter Weisskopf, Alienation and Economics (New York:
Dutton, 1971).
15
For examples: Zillah Eisenstein, ed.,
Capitalist Patriarchy and the Case for Socialist-
Feminism (New York: Monthly Review, 1978); Sheila
Rowbotham, Women, Resistance and Revolution (New York:
Pantheon, 1972); James Boggs and Grace Boggs, eds.,
Racism and the Class Struggle (New York: Monthly
Review, 1970); Robert Dirsch and Barry Schwartz, White
Racism: Its History, Pattern, and Practice (New York:
Dell, 1970); Richard Barnet and Ronald Muller, Global
Reach: The Power of Multinational Corporations (New
York: Simon & Schuster, 1974); Noam Chomsky and Edward
S. Herman, The Washington Connection and Third World
Fascism (Boston: South End Press, 1979).
*"^Mill, Utilitarianism, On Liberty, and
Considerations on Representative Government, pp. 78-114.
'*'^Ibid., p. 150. Mill stated:
"Again, trade is a social act But it is now
recognised, though not till after a long struggle,
that both the cheapness and the good quality of
commodities are most effectually provided for by
leaving the producers and sellers perfectly free,
under the sole check of equal freedom to the buyers
for supplying themselves elsewhere. This is the
so-called doctrine of Free Trade, which rests on
grounds different from, though equally solid with,
the principle of individual liberty asserted in the
Essay. Restrictions on trade, or on production for
purposes of trade, are indeed restraints; and all
restraint, qua restraint, is an evil; but the
restraints in question affect only that part of
conduct which society is competent to restrain, and
are wrong solely because they do not really produce
the results which it is desired to produce by them.
As the principle of individual liberty is not
involved in the doctrine of Free Trade, so neither
is it in most of the questions which arise respect-
ing the limits of that doctrine."
18
For examples: Samuel Bowles and Herbert
Gintis, Schooling in Capitalist America (New York:
Harper & Row, 1976); Gabriel Kolko, Wealth and Power
in America (New York: Praeger, 1962).


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Full Text

PAGE 1

LIB. ERTY, THE PUBLIC INTEREST, AND MANDATORY HELMET USAGE LEGISLATION: AN APPLICATION OF JOHN STUART MILL by Robert C. Wheeler B.A., University of Northern Colorado, 1976 I I A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment of the requirements for the degree of Master of Arts Department of Political Science 1985

PAGE 2

.1 I ; This thesis for the Master of Arts degree by Robert C. Wheeler has been approved for the Department of Political Science by Date

PAGE 3

I I I I Wheeler, Robert C. (M.A., Political Science) Liberty, the Public Interest, and Mandatory Helmet Usage An Application of John Stuart Mill Thesis directed by Associate Professor MichaelS. Cummings Is there an arena of individual behavior which should be immune to State interference? John Stuart Mill, in his classic work On Liberty, maintained there is such an arena. This thesis examines Mill's principle of liberty to find what value, if any, it holds in determining the legitimacy of what is often referred to as "paternalistic legislation." Specifically, the thesis applies Mill's principle to mandatory helmet-usage legislation. Other questions are addressed along the way. How far should the State reach in order to personal safety? What criteria should be used to determine what individual behavior becomes the legitimate concern of others? Is Mill's two-sphere model of individual behavior, consisting of self-regarding and otherregardigg behavior, a worthwhile model for analyzing paternalistic legislation?

PAGE 4

iv Chapter I lays out the relevance of this work, I arguing that Mill's essay raises very important issues tion. Chapter III is an overview of the history of mandatory helmet-usage legislation. Chapter IV is the application of Mill's principle to the helmet-usage legislation, along with a summation of the specific strengths and weaknesses of his argument. I conclude that Mill would likely oppose such legislation, and is correct in doing so. Thus, Mill's principle of liberty is found to be a valid tool for examining the limits of State interference in "paternalistic" matters. Finally, Mill's principle is found wanting, for it is ultimately based upon certain fundamental assumptions, specifically those supportive of a market economy, which promote the extension of the State into the very arena Mill said should be immune to interference.

PAGE 5

CONTENTS CHAPTER I. INTRODUCTION II. CRITIQUE OF ON LIBERTY . . III. IV. MANDATORY 'HELMET USAGE LEGISLATION: AN OVERVIEW .' . MILL,AND PATERNALISM: SPECIFIC IMPLICATIONS AND FAILINGS BIBLIOGRAPHY . v 1 14 41 63 85

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! I I I I I I I I I I Table 111.1. III. 2. 111.3. 111.4. 111.5. 111.6. TABLES Motorcycle Fatalities and Registrations, 1958-1979 Numbers of States Implementing Helmet Laws by Year . Status of Helmet Requirements in Repeal States by Year of Repeal . Fatal Head Injuries per 1,000 Crash-Involved Riders (PreRepeal vs. Post-Repeal) ... Most Severely Injured Body Location per 1,000 CrashInvolved Riders Fatal Head Injuries per 1,000 Riders (Helmeted vs. Nonhelmeted) 111.7. Preliminary Results From a Survey of 95 Accident-Involved Riders in South Dakota 111.8. 111.9. Hospital Data for Motorcycle Accidents Which Occurred During 8/28/76 Through 8/28/78 ........ Seventy-One Motorcyclists' Hospital Bills ... vi 42 45 46 48 49 50 51 51 53

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i j CHAPTER I INTRODUCTION What individual behavior, if any, should be immune to State action? Should the State be allowed to mandate individual behavior designed for the primary purpose of self-protection? How far should the State reach in order to insure personal safety? What criteria should be used to determine what individual behavior becomes the legitimate concern of others? Specifically, is the State using legitimate power in implementing legislation. requiring motorcycle riders to wear protec-tive headgear? These questions are important enough to investi-gate, and therein lies the focus of this thesis. The thesis will consist of four chapters. The first is this introduction, which offers a brief summation of John Stuart Mill's general argument presented in On Liberty, a case in favor of the relevance of his argument to mandatory helmet usage legislation in particular, and to paternalistic legislation in general. I will also address Mill's place in the history of classical liberal thought, and provide a preview of the rest of the thesis.

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I I I 2 Chapter II will be an analysis of Millis argument presented in On Liberty. There will be included various interpretations and critiques of his argument. The analysis of Millis work will consist of five central questions. What was Millis view of human nature? To appreciate or understarid any great political theorist, we must examine the theoristls most fundamental assump-tions concerning human behavior. Why did Mill place such great value upon individuality, and does individuality deserve such prominence? Why did Mill place great value upon liberty, as he defined it? Next, can human behavior be so divided into the self-regarding and other-regarding spheres Mill presented to us? Finally, why did Mill seek to restrict State authority? Chapter III will be an analysis of mandatory:.' helmet usage laws for motorcyclists. Included will be an overview of the political history behind such legis-lation, as well as the of its implementation, and subsequent repeal in many states. Chapter IV will be an application of Millis principle of liberty to the mandatory helmet usage laws. Does his principle, or some amended version of it, call for such legislation? John Stuart Mill set forth an argument in his classic On Liberty that there is a sphere of human behavior which deserves immunity from State action.

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I Mili maintained human behavior can be divided into two separate spheres: that which concerns others, and that which concerns only oneself. The State has the right to enter the former, but must be prohibited from en'tering the latter. The primary purpose of this thesis is to investigate the validity and relevance of this argument by one of the most important political thinkers of classical liberalism. To evaluate the applicability of his argument to the existing conditions of American society, I will use his theory to examine the mandatory motorcycle helmet usage laws that presently exist in twenty-two states. This particular type of legislation directly addresses many of the issues Mill raised in his argument.This thesis will focus on two essential compo-nents of Mill's argument. First, he'placed a value of primacy in individuality, and argued that a society is only as good as the individuals in it. Second, Mill maintained that the most essential condition in which the individual and society can grow and 'prosper is liberty. He defined liberty as the freedom to choose one's life plan in a manner which does not harm others. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.l 3

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I I I I I It was Mill's contention liberty was becoming increasingly threatened during his time, and the forces of public opinion, as' well as the growth of State authority, were the primary culprits. Thus, Mill set out to establish limits of State authority in the area of individual behavior. Mill divided human behavior into two general spheres. One sphere is that which Mill called "self-regarding." This sphere consists of all individual 4 behavior which concerns only the agent. The other sphere is usually referred to as "other-regarding" behavior. This is behavior which does affect persons besides the agent. The major contention of On Liberty is a "simple principle": the State should never enter the self-regarding sphere in a coercive fashion. The only occasions in which State coercion is justified are times when the agent's actipns affect others. Mill began his essay stating precisely this point. The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action or any of their number, is self-protection. That the only purpose for which power 'can rightfully be exercised over any member of a civilised against his will, is to prevent harm to others.

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Protection from coercion is essential to promot-ing liberty, and it was Mill's contention that such protection was more necessary than ever before: II the worth of a State, in the long run, is the worth of the individuals composing it .... ,,3 How relevant are the issues addressed in Mill's essay to present American society? Is there a trend toward less individual liberty, as Mill maintained? Is individuality increasingly threatened by public opinion, as well as State coercion? Mill asserted the threat of tyranny by the majority is very real, even in a repre I sentati ve gQvernment. How accurate was this assertion? I I I I 1 I It is my contention that these issues, and others presented in Mill's argument, are quite relevant to our 4 present soclety. It is not necessary to determine whether the threat to liberty and individuality is greater today than in Mill's time, or to evaluate the relative restrictions of life in nineteenth century Europe, and twentieth century America. It is sufficient to state there is much evidence to assert individuality and liberty are encroached upon, by the forces of both private and public institutions.5 Mill was quite concerned about the degree of 5 conformity he witnessed in "his time. In fact, he stated

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6 the mere act of non-conformity is of such value that it is to be admired and supported, simply because it has become so rare a commodity. The pressures of conformity in present America can be witnessed in numerous ways, but only two will be presently addressed. The influence of a consumption-oriented capitalist society upon indi-viduality expresses itself in a variety of ways. The constant bombardment of advertising places great pres-sure, much of it successful, to consume the identical products, in order to achieve identical results. Thus, to a large extent, how we actually de.fine individuality is through the clothes, food, or other consumer goods we obtain.6 Second, the State systematically promotes and protects the two-party system: through restrictive ballot requirements, incumbent privileges, and shared federal fundings, there exist many barriers for indi-viduals with different viewpoints from those of the mainstream Republican and Democratic parties. Thus, an obvious homogeneity of political leaders emerges in the form of white, well-to-do males with fundamentally status 'd 1 7 quo 1 eo og1es. The few exceptions to this political mold do not alter the point that individuality is actively opposed by the present two-party State.

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I 7 Mill was not only concerned with the lack of individuality. He was also alarmed at 'the degree of encroachment upon individual liberty. Once again it is not important to determine whether Americans have more liberty than did Mill's English citizens. We need only present evidence that liberty is being restricted and threatened, and such evidence is not difficult to find. We can begin with the obvious examples of encroachment upon freedom of speech, religion, and the press which ,is part of the daily news report. Individual civil liberties are being constantly threatened, by both the private sector and the State.S The abuse of governmental wiretaps, the increase of mandates, and the sheer number of court actions brought against the press and individuals who challenge the status quo--all these examples support the argument that individual liberties are in jeopardy.9 This thesis will investigate a piece of legis lation that can be placed in a category which concerned Mill in his argument: paternalism. Paternalism is the idea of restricting (or mandating) certain behavior deemed not to be (or to be) in the best interests of the person so directed. We are seeing this type of legisla-tion being passed in ever-increasing numbers., Mandatory helmet usage for motorcyclists is required in twenty-two

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I I I states. New York, New Jersey, and Illinois have just passed a mandatory seat-belt usage law, and other states are considering similar legislation. It is the purpose of the thesis to examine Mill'i theory, and to determine whether it is worthwhile to apply his theory to such paternalistic legislation. Mill's argument is certainly relevant to present American society, not because it is flawless, but because the issues it addresses exist, and are deserving of investigation. 8 Liberalism developed from a variety of historical conditions, not all of them economic. The ideological roots of liberalism were founded in the Revolutionary Era of the eighteenth century. The political ideals of this era were freedom of thought, of expression, and of association. Also included in the ideology were the security of property and the control of political insti-tutions by an informed citizenry What means were neces-sary for these ideals to be realized? A society had to establish a government that would work within limits set by law. It was necessary to adopt a form of constitu-tional government. Furthermore, the political authority should include some form of representation. Significantly, these political ideals were posited as self-evident natural rights.

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I I I I I I I I I 9 Though rooted in these political ideals, classi-cal liberalism was not a revolutionary ideology. The fear among its proponents, caused in part by the excesses of the French Revolution, resulted in a more moderate strategy for implementing these ideals. The growth of empiricism, including utilitarianism, eventually over-shadowed the belief in self-evident natural rights. Perhaps most importantly, as the position and influence of the commercial and industrial middle class became more assured, revolution became less desired. George Sabine states: This class everywhere formed the spearhead of liberal political. reform in the nineteenth century, and" the trend of industrial and commercial made the expansion of its politi cal power a foregone conclusion.lO The emergence of this new political base coin-cided with the decline of the landed gentry, and the growth of unorganized wage earners. As time went on, liberal political reform passed out of the region of and into that of pragmatic The liberal reformers sought administrative reforms in legal procedures, and regulations in areas of commerce and social welfare. Its philosophy tended to become utilitarian instead of revolutionary. Liberalism transformed itself into an intellectual bridge between the individualism of its earlier period, which was its heritage from the philosophy

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of the Revolutionary Era, and a recognition of the reality and the value of social and communal interests, which tended in general to put themselves forward in anti-liberal forms.ll Finally, the economic theory of liberalism was based upon the works of Adam Smith and David Ricardo, and most liberal theorists supported the ideological assumptions 6fmarket capitalism. Certainly, beginning with John Locke, laissez faire economic freedom provided a solid foundation for promoting political freedom for individuals, primarily those of property. The liberal thinkers expanded and transformed the ideology, which C. B. MacPherson has labeled "possessive individualism," and the relationship between capitalism and liberalism b h d d 12 1S ot 1nt1mate an ynam1c. Johm Stuart MiLl's position in liberal thought can be viewed as one of transition. His theories were important for liberalsim, for he helped lead liberalism from the egoism of utilitarianism towards a theory that assumed social welfare is a matter of concern to all citizens. Mill also presented freedom, integrity, self-respect, and individuality as intrinsic goods apart from their contribution to utilitarian happiness, though he never fully acknowledged this departure from Benthamite utilitarianism. According to Sabine, Mill's contribuI ( I tions to liberal philosophy can be summed up in four I I

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general statements. First, Mill rescued utilitarianism from its dead-end calculation of pleasures and pains. Second, Mill accepted political and social freedom as intrinsic goods, not because they contributed to an ulterior end, but because freedom is the proper condition of a responsible human being. To pursue one's life in one's own way is not a means to happiness, but 11 is a substantive part of happiness. Next, Mill argued that liberty is not only an individual good, but a social good as well. The claims of individual right and public utility are closely connected. Finally, the function of a liberal state in a free society is not negative but positive. It cannot make its citizens free merely by refraining from legislation or assume that the conditions of freedom exist merely because legal obstacles have been 13 erased. Mill's On Liberty is his most characteristic and most lasting contribution to political thought. It can be argued that it represents the noblest statement of liberal thought, for it successfully argues that individuality is not only to be a vice tolerated by an enlightened society, but to be given a positive value and be viewed as an essential ingredient of a good society.

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! I I I I I I I I NOTES--CHAPTER I lJohn stuart Mill, Utilitarianism, On Liberty, and Considerations on Representative Government, ed. 12 H. B. Action (New York: E. P. Dutton & Co., 1972), p. 75. 2Ibid., p. 72. 3Ibid., p. 170 4Bertrand Russell, "John stuart Mill," in Mill: A Collection of Critical Essays, ed. J. B. Schneewind (Garden City, N.Y.: Anchor Books, 1968). 5see, for examples: Ivan D. Illich, Deschooling Society (New York: Harper and ROw, 1971); Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958); Erich Fromm, The Sane Society (New York: Holt, Rinehart and Winston, 1955), Chapter V; and Ken Kesey, One Flew Over the Cuckoo's Nest (New York: Viking Press, 1964) 6see, for examples: Milton Friedman, Capitalism and Freedom: Problems and Prospects (Charlottesville: University Press of Virginia, 1975), Chapter I; John Downing, The Media Machine (London: Pluto'Press, 1980); and Michael Parenti, Democracy for the Few (New York: St. Martin's Press, 1983), Chapter III. 7see, for examples: Charles Wright Mills, The Power Elite (New York: Oxford University Press, and Mark Green and Michael Calabrese, Who Runs Congress (New York: Bantam, 8 See, for Examples: Mark DeWolfe Howe, Cases on Church and State in the United States (Cambridge, Mass.: Harvard University Press, 1952), Chapter IV; O. Carroll Arnold, Religious Freedom on Trial (Valley Forge: Judson Press, 1978), Chapter IV; Dean M. Kelley, ed., Government Intervention in Religious Affairs (New York: The Pilgrim Press, 1962); Robert E. Cushman, Civil Liberties in the United States: A Guide to Current Problems and Experience (Ithaca, New York: Cornell University Press, 1956); William Zelermyer,

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I I 13 Invasion of Privacy (Syracuse, N.Y.: Syracuse University Press, 1959); and Norman Dorsen, ed., Our Endangered Rights: The American Civil Liberities Union Report on Civil Liberties Today (New York: Pantheon Books, 1984). 9 See, for examples: Lucuies J. Barker and Twiley W. Barker, Jr., Freedoms, Courts, Politics: Studies in Civil Liberties (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1965), Chapters II, III, and IV; Richard C. Cortner, The Supreme Court and Civil Liberties Policy (Palo Alto, California: Mayfield Publishing Co., 1975);. Michael J. Arlen, An American Verdict (Garden City, N.Y.: Anchor Book, 1974); and Peter Schrag, Test of Loyalty: Daniel Ellsberg and the Rituals of Secret Government (New York: Simon and Schuster, 1977). lOGeorge H. Sabine, A History of Political Theory, 3rd ed. (New York: Holt, Rinehart and Winston, 1961), p. 671. llIbid., p. 674. l2C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (London: Oxford University Press, 1962). i3 b fl' 1 Th 714 Sa lne, A Hlstory 0 Po ltlca eory, pp. -15.

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CHAPTER II CRITIQUE OF ON LIBERTY There will be five general aspects of On Liberty addressed in this chapter. First, what was Mill's view of human nature? Second, why did Mill place such importance upon individuality? Next, why did Mill assign primacy to his own brand of liberty? I will also investigate the validity of Mill's two-sphere model concerning human behavior. Finally, the concluding part of this chapter will examine Mill's assumptions and attitude towards State action. What was f4ill' s view of human nature? Mill definitely believed in the capacity of human beings to be rational, but not equally or perfectly so. A component of his argument opposing State action rests on the assertion that an individual best knows his own interests. Similarly, Mill's defense of freedom of thought, and freedom of expression, would be absurd, if Mill did not view human beings as capable of being rational creatures. Thus, rationality is a characteristic Mill assigned to human beings that have reached what he referred to as a "certain level of "development"

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I I l I I I I I i 1 15 Utilitarianism assumes at least certain people are capable of being rational, for the calculations necessary to determine the maximization of the greatest pleasure for the greatest number is a form of linear rationality. Inherent in the utility principle is an assumption that happiness is somehow achievable and even calculable. While Mill offered his own unique brand of utilitarianism, it is evident he also assumed happi-ness is obtainable for human beings. Finally, it should not be assumed that Mill's view of human nature was simple or unduly optimistic. Indeed, this interpretation of Mill has been the focal point of criticism of Mill's principle by a number of scholars. Mill's view of human nature is attacked by various critics, primarily on the grounds that he presented a human being with characteristics not found in the average person. H. J. McCloskey states: Mill wrote as if members of civilised societies are completely rational and responsible, and this although elsewhere he showed often enough that he knew that they are not.l Similar criticism is offered by H. L. A. Ha "rt, who attacks Mill or his conception of a normal human being, which does not correspond to the real world. Underlying Mill's extreme fear of paternalism there perhaps is a conception of what a normal human being is like which now seems not to correspond to the facts. Mill, in fact, endows

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him with ,too much of the psychology of a middleaged ,man whose desires are relatively fixed, not liable to be artificially stimulated by external influences; who knows what he wants and what gives satisfaction or happiness, ,and who pursues these things when he can.2 16 Another area of criticism concerning Mill's view of human nature consists of his emphasis upon individ-ualism. ,Por example, David G. Ritchie opposes Mill's concept of "self-regarding action" because he sees Mill as proposing a "negative" view of human behavior; one in which the "self" is pitted against others.3 It is true Mill, like most liberal thinkers, placed great value on individualism, at the expense, some would say, of the communal traits human beings exhibit. Certainly, his emphasis upon is partially based upon for the judgment of the masses. Mill assumed the masses would inherently be comprised of conformists, with a desire to impose their more likings and dislikings on others. It was this pervasive iendency on the part of the masses to conform and abdicate the more aspects of human behavior which gave Mill much of the impetus to establish his liberty principle. He warns early in the essay that "majority tyranny" is becoming increasingly a threat to individual liberty. It is important, however, not to lose sight of the general intent of Mill's argument. Mill sought to

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.17 establish a foundation for restricting social and political interference. He was certainly aware of the fallibility of human beings, both individually and collectively. He presented numerous examples of errors I I in judgment made by individuals, society, and the State. He did not argue most people have an abundance of I I rationality, tolerance, wisdom, and independence. Rather, he seems to say to us that all of us have I I flaws in our character, it is better for us to make our [ own errors, according to the life plan we choose, than to have the errors forced upon us by the flaws found in others. A major element in Mill's argument was his belief that the clash of errors freely chosen is more likely to produce truth than will the enforcement of one group's errors upon another group. Mill maintained that a person generally knows his own interests best, not because he absolutely knows them, but because he is. more likely to know what his interests are than is anyone else. Ritchie's interpretation presents Mill's concept of a civilized person in a far too negative and exag-gerated form. Mill did not attempt to isolate one person from all others. He readily admitted, and even advocated, the social aspect of human behavior. In fact, it can be argued that MilliS liberty principle is a

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18 fundamental ingredient in building a society in which people beneficially interact with one another. Mill might agree with Ritchie's assertion that one can find "self" in community, but only if he is allowed to choose freely his own 1ife's plan. Mill asserted that the worth of a society can be found in the worth of the individual. He made no attempt to isolate human beings. Rather, his concern was how to build a society consisting of rational, creative, and happy individuals. Recognition of individual rights is absolutely essential to the society Mill envisioned. Why did Mill place such great value upon individand does it deserve such prominence? Let us remember Mill's assumption concerning the actions of the masses. He observed a tendency of the masses to adhere to and blind obedience. In such a society, Mill asserted "great achievements" are rarely, if ever, obtained. Mill presented an elitist, but not aristocratic, argument in advocating the position that exceptional J I I individuals should be nourished and supported in a good society. Mill was an elitist in the sense that he argued certain people were more rational, intelligent, and creative than others. Acknowledging such differI ences exist among citizens, Mill presented his principle

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I I I I 1 I I I 19 as a means of benefitting society by allowing such gifted people the liberty to reach their full potential. Mill's principle does not rest on the assertion that. all citizens are capable of great deeds, if given a wide degree of liberty. Rather, the wide range of liberty Mill proposed will directly benefit the few citizens capable of great deeds, thereby bettering the rest of society. It is important to note that Mill did not support the idea that such gifted people are the exclu-sive domain of the wealthy class or of a hereditary aristocracy. Interestingly, Mill's strongest argument for individuality lies in his assertion that society ulti-mately benefits from such individuals. It is to the benefit of all citizens, not merely the exceptional individuals, for society to promote a wide range of individual behavior. In this "free market" of life-styles and behavior, the great reservoir of untapped human potential can be explored and uncovered. will reap the rewards of unbridled genius. The medi-ocrity of the majority will be elevated by the tolerance, and even the promotion, of those exceptional individuals who have the courage to be different. Mill stated that in other times, it was necessary for such individuals to be not only different, but better. For Mill, because of

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! I I I I I I I I I I 20 the pervasive trend towards conformity, the mere act of non-conformity is a service to society. ... In this age,the mere example of non-conformity, the mere refusal to bend the knee to cust'om, is itself a service.,,4 Mill did more than assert that diversity is inherently beneficial. He forcefully argued that blind obedience must be fought against, because it always destroys character. Thus, individuality is important to Mill because it builds character. Mill did not abso-lutely oppose custom or tradition, but it was blind obedience to them which he absolutely rejected. Sir James Fitzjames Stephen, among others, has criticized Mill for assuming diVersity in human behavior is inherentlygood.5 In general, these critics view Mill as a proponent of eccentricity, rather than positive individuality. They interpret Mill as arguing that differences are better simply because they are differ-ences. It is evident Mill did place a great deal of value in individuality and diversity. He believed that only by exploration and experimentation can man begin to reach his potential: It is not by wearing down into uniformity all that is individual in themselves, but by cultivating it, and calling it forth, within the limits imposed by the rights and interests of others, that human beings become a noble and beautiful object of contemplation; and as the works partake the character of those who do them, by the same process human

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I I I i I I 21 life also becomes rich, diversified, and animating, furnishing more abundant aliment to high thoughts and elevating feelings, and strengthening the tie which binds every individual to the rac.e, by making the race infinitely better worth belonging to. In proportion to the development of his individuality, each person becomes more valuable to himself, and is therefore capable of being more valuable to others.6 Does individuality deserve the importance Mill assigned to it? I think it does, for the very reasons Mill presents. There is a direct corresponding re1ation-ship between the quality of the state, and the quality of the citizens. It is a dynamic relationship, in which each side shapes and defines the other. But it is not a simple "chicken or the egg" riddle. Society is comprised of individuals, and Mill did not place individuals outside f t 7 o SOC1.e y. Instead of pitting the individual against society, Mill stated the rights of an individual have primacy over the mere desires of the rest of society. Thus, he 6entered the argument around rights and prefer-ences, rather than individuals and society. This point is often ignored or misunderstood by those critics of Mill who. attack him for placing the individual above society. His principle gave primacy to individual rights, and presents us with a conflict Mill was unsuc-cessful in resolving: the conflict between the values of individual liberty and social utility. While Mill can be rightly accused of being an inconsistent utilitarian,

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I I 22 to assign to him the responsibility of advocating selfish individualism is to make a serious error in interpre-tation. Why did Mill place such great value upon liberty, and does liberty deserve such prominence? Mill is quite explicit in defining liberty: The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.8 This is a negative view of freedom, because it is a "freedom from" interference, rather than a freedom for certain rights and benefits. Isaiah Berlin explains this negative view. By being free in this sense I mean not being interfered with by others. The wider the area of noninterference the wider my freedom. This is certainly what the classical English political philosophers meant when they used this word.9 The question remains concerning why Mill believed this brand liberty was so essential to a good society. Mill presented a similar argument on behalf of liberty to that concerning individuality, i.e., there is a direct relationship between the degree of liberty a society can be assigned and the degree of liberty the citizens enjoy: No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified.10

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I I I I 23 Mill was certain liberty is essential to building good character in people. Liberty promotes independence of thought and action by requiring people to take more control over their lives. Freedom promotes a wide range of human behavior, and thereby creates a conducive market-place for great achievements. Liberty is also important to Mill for providing a democratic government, which ultimately depends upon responsible individual acts. Liberty will help prevent a passive acceptance of custom, and will thereby reduce the number of rules based merely on preference or likings. Finally, Mill presented an efficiency argument in favor of liberty. He stated that even if there are certain legitimate reasons for inter-fering with one's "self-regarding" behavior, it might be wise not to do so, since one knows one's own interests best. For all of these reasons, Mill gave liberty great value. Mill has been attacked by numerous critics for l h' h l b 11 P aClng too 19 a premlum on 1 erty. These critics argue there are many characteristics essential to a good society, with liberty being merely one of them, and not necessarily the primary one. Mill is also criticized for his negative view of liberty. Ritchie, for example, argues that men have struggled for liberty on grounds much more substantial than being left alone.12 I think

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I I I I I I this is too narrow a view of Mill's conception. Ronald Dworkin provides a convincing defense of both Mill's principle, and his definition of liberty.13 According to Dworkin, there are generally two types of liberty: 24 liberty as license, and liberty as independence. Liberty as license is the degree to which a person is free from or legal constraint to do what he might wish to do. This is an indiscriminate concept because it does not distinguish among forms of behavior. In essence, every. prescriptive law diminishes a citizen's liberty as license: good laws, like those preventing murder and theft, diminish liberty in the same way, and possibly to a greater degree, than bad laws. Liberty as independence is not the same type of indiscriminate concept. It is the status of a person as independent and equal rather than subservient. Dworkin maintains Mill is using ;! liberty as independence, not as license. He is right in stating Mill did not advocate an absolute freedom or license; in fact, Mill conceded any act, no matter how personal, may have important effects on others. Dworkin explains why liberty as independence was of value to Mill. Mill saw independence as a further dimension of equallty; he argued that an individual's independence is threatened, not simply by a political piocess that denies him an equal voice, but by political decisions that deny him equal respect. Laws that recognize and protect common interests,

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like laws against violence and monopoly, offer no insult to any class or individual; but laws that constrain one man, on the sole ground that he is incompetent .to decide what is right for himself, are profoundly insulting to him. They make him intellectually and morally subservient to the conformists who form the majority, and deny him the independence to which he is entitled. Mill insisted. on the political importance of these 25 moral concepts of dignity, personality, and insult. It was these complex ideas, not the simpler idea of license, that he tried to make available for political theory, and to use, as the basic vocabulary of liberalism ... 14 Liberty deserves the primacy Mill gave to it, if one is constructing a good society. There are, however, situations in the real world in which it might be neces-sary to place other conditions ahead of it. Certainly, in time of crisis, such as war or famine, the freedom from interference Mill advocated might, out of necessity, be restricted. This acknowledgment of certain conditions existing which would preempt liberty does not discredit Mill's A society,. to be of the sort Mill desired, must have liberty from interference. I would not wish to construct a good society without guaranteeing liberty. It is important to remember, and Mill was certainly aware of this, that there must also be guarantees of other characteristics, such as enough food and shelter, for a society to be considered good. In fact, Mill should have argued these characteristics are essential conditions for liberty to flourish. He did

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26 this implicitly, because he would have realized starving persons or those who have no means of sustenance, forfeit their freedom in a very serious manner. Can human behavior be placed within the self-regarding and other-iegardirig spheres Mill presents? The issues raised by this question are the essence of Mill's essay, for if distinctions cannot be made between the two spheres, then his assertion that the State is forbidden from entering the self-regarding arena is meaningless. If the two spheres can be identified as separate areas of human behavior, then it is possible to examine the value of Mill's principle in evaluating State action. Mill had no doubt that certain human behavior can be considered "self-regarding." Throughout the essay, Mill referred to individual behavior which either concerns no one but the agent, or concerns others only in an indirect manner. The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which only concerns himself, his independence .is, of right, absolute.IS But there is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; comprehending all that portion of a person's life and conduct which affects only himself, or if it also affects others, only with theii free, voluntary, and undeceived consent. and participation.16

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It is desirable, in short, that in things which do not primarily concern others, individuality should assert itself.17 Assuming such self-regarding behavior exists, what constitutes it? To determine what self-regarding 27 I behavior is, we must introduce here another concept used by Mill in the essay. Mill's answer to what cbnsti-l tutes "self-regarding" behavior seems to be "that behavior which does not harm others." Thus, it is essential that we define what constitutes "harm to others," before we can determine if Mill's two-sphere model is of any practical value. It is obvious Mill considered such harm to others as more than only 18 physical harm. Certainly, we can be harmed emotion-ally and spiritually by actions inflicted upon us by others, either collectively or individually. What actions beyond physical harm would travel from the self-regarding sphere into the other-regarding arena? Mill gives us some helpful, but not extensive, and far from conclusive guidelines for determining such actions. I fully admit that the mischief which a person does to himself may seriously affect, both through their sympathies and their interests, those nearly connected with him and, in a minor degree, society at large. When, by conduct of this sort, a person is led to violate a [distinct and assignable obligation] to any other person or persons; the case is taken out of the self-regarding class, and becomes. amenable to moral disapprobation in the proper sense of the term ... Whenever, in short, there is a [definite damage], or a [definite risk of damage], either to an individual or to the

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I I I I I I i public, the case is taken out of the province of liberty, and placed in that of morality or law.19 28 We are getting closer to defining harm to others, but we are not quite there. It remains necessary to define "distinct and assignable obligation." How do we know what "definite damage" or "definite risk of damage" consists of? Once again, Mill seems to define these terms by what they are not, rather than what they are. What clearly does not constitute harm to others is some-thing affecting their mere likes and dislikes, what Mill referred to as "preferences" of the person being "harmed." Therefore, simply because Mr. Jones may be offended by the actions of Mr. Smith, Jones has no right to impede Smith's actions. Mill maintained that no real harm has .been inflicted upon Mr. Jones, because the only negative consequences which exist are the result of Jones' likes and dislikes, rather than Smith's actions. For example, Mill today would argue that one's homo-sexuality should not be open to State action, because the only harm it does is to offend certain persons' likes and dislikes, and according to Mill, this is warrant for restricting what he views as "self-regarding" behavior. For harm to exist, a person must violate a "distinct andiassignable" obligation to someone else.

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I I 29 What is such an obligation? Certainly, Mill would t include the providing of basic necessities of life for I dependents. Thus, while drunkenness, in itself, may be purely self-regarding, if it results in failing to provide food and shelter for one's family, then it becomes "other-regarding," and thereby open for State interference. Likewise, if one's individual pursuits, such as gambling, prevent the agent from fulfilling contractual or monetary obligations, such action enters the "other-regarding" sphere. It is essential to note, however, that the "harm to others" is not the action of gambling or drunkenness, but the irresponsibility promoted by them. What causes these acts to be considered "other-regarding," and thus open to discus-sion, is the fact they have led to the failure to carry out certain "distinct and assignable" obligations. A "distinct and assignable" obligation must be one that is both direct and verifiable. It can be determined if bills are being paid, food is being provided, or contracts are being honored. It cannot be precisely determined to what degree one is "offended" by certain actions which might be considered immoral or improper. Further, there is no "assignable obligation" among citizens not 'to offend others, for social mores and values are continually changing. The first person

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i I I 1 I I I I 30 in town to wear a new hairstyle, or dress in a certain fashion, will' inevitably offend someone's sensibilities, but this offense is not justification for interfering with such behavior. What does Mill mean by "definite damage" and risk of damage"? It is not possible for Mill, or anyo'ne else, to list completely all the actions which constitute "damage," for what is considered harmful in one society, during one era, might be considered accept-able and proper' in another. The examples 'of child labor and slavery come immediately to mind as such actions. The importance of Mill's terminology lies in the term "definite," rather than "damage." The term "definite" implies something measurable and specific. It might be calculated statistically, such as the number of fatal-ities caused by drunk drivers. If it can be shown that drunkenness, when combined with driving, poses a "definite risk of damage" to others, then Mill would consider such action as other-regarding. As is the case with "distinct and assignable obligation," there must be certain verifiable "harm" inflicted upon "specific" individuals, for individual action to be considered other-regarding. Some of Mill's harshest critics have disputed the existence of Mill's self-regarding behavior.20

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31 According to such criticism, all human behavior, either directly or indirectly, affects others. Therefore, no significant distinctions can be made concerning the right of the State or society to interfere in individual action. This concept of"Social Rights" emphasizes the interaction and interdependence of beings, and places obligations and duties upon individuals for their behavior. Thus, if a person drinks too much, he can be held accountable to others, for he is neglecting his duty of being a fine citizen. It matters not whether he is directly hurting others, for his mere example of drunkenness is cause enough for society to interfere with his actions. Mill readily admits self-regarding acts are not absolutely removed from affecting others. The distinction here pointed out betweeri the part of a person's life which concerns only himself, and that which concerns others, many persons will refuse to admit. How (it may be asked) can any part of the conduct of a member of society be a matter of indifference to the other members? No person is an entirely isolated being; it is impossible for a person to do anything seriously or permanently hurtful to himself, without mischief reaching at least to his near and often far beyond them. If he injures his he does harm to those who directly or indirectly derived support from it, and usually diminishes, by a greater or less amount, the general resources of the community. If he deteriorates his bodily or mental faculties, he not only brings evil upon all who depended on him for any portion of their happiness, but disqualifies himself for rendering the services which he owes to his fellow-creatures generally; perhaps becomes a burthen on their

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, I I I I 1 I 'affection or benevolence; and if such conduct were very frequent, hardly any offence that is committed would detract more from the general sum of good. Finally, if by his vices or follies a person does no direct harm to others, he is nevertheless (it may be said) injurious by his example; and ought to be compelled to control himself, for the sake of those whom the sight or knowledge of his conduct might corrupt or mislead.2l 32 Mill attacked this theory, because it, in essence,gives the State and society the right to interfere with any action of the individual. This concept of social rights correctly implies that we are definitely a product of our environment, and the individuals we come into contact with during our lives affect us in many ways. Thus, by witnessing what is considered to be "wrong" or "evil" behavior, innocent individuals may be corrupted. The proponents of such social rights give justification for questionable actions carried out with either the force of state action or that of public opinion. For instance, in certain localities it might be considered by the majority of the people to be harmful to have an inter-racial marriage, because of the influence such action might have upon the majority of citizens. Thus, an interracial couple would be setting a "bad example" for the community, and according to the social rights pro-ponents, action could rightfully be restricted. Second, this social rights theory ignores the fact that nearly all individual behavior results in both

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! I I I I i I I r I t ) 33 beneficial and harmful behavior. For example, a person who consumes a great deal of alcohol might definitely set a bad example for certain citizens. However, his consumption of alcohol may very well.benefit farmers who raise grain, or the individuals he might befriend in the local saloon and buy a round of drinks for. It might even be argued that by being of such character, he provides an excellent topic for a preacher's Sunday sermon. The thrust of these examples is to emphasize the consequences of asserting self-regarding behavior does not exist. If no such behavior exists, then it would be permissible for the State to interfere in all matters of individual behavior. The criteria for such interferencewbuld be relative, and the result of certain values. Mill's principle is designed to protect against such prejudicial interventions by making certain behavior absolutely immune to state interference, beyond the realm of discussing the possibility of intervention. It might well be argued that Mill's definition of self-regarding behavior is insufficient in its specifics. But I believe his intention was to construct a principle which simply says to the and to Society "thou shalt hot enter into this arena." What that arena specifically consists of is the basis for much debate, but to deny such an arena exists is to give to the State, or popular opinion,

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34 whether in a democracy or a totalitarian regime, all it needs to inflict tyranny, and discriminatory tyranny at that, upon individuais. Why did Mill assign such a negative "aspect" to State action? His use of the term "interference" implies the State is going beyond legitimate boundaries of action. Throughout the essay, Mill placed the State and the individual in a partly adversarial relationship. Gertrude Himmelfarb states: "Society," therefore, was the chief antagonist in On Liberty, the great adversary of the individual The threat Mill conceived it was formidable: it came from the total social as well as legal and political pressure exerted by the collective whole known as "society." And because that threat was so massive, because the whole of society and all the resourdes of society were ranged against the single individual, the solution had to be equally drastic.22 must be remembered that Mill did not deny the legitimacy or the necessity of the State in a good society. He was most definitely not an anarchist, or even an orthodox laissez-faire theorist. Indeed, he argued that erroneous arguments opposing state inter-ventions are as likely to be heard as erroneous arguments supporting state intervention. What he attempted to do was to set up guidelines determining what State action is acceptable. He presented an arena of self-regarding behavior, into which the State is forbidden to enter,

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35 and he offered guidelin'es on when the State should enter the other-regarding sphere. We need to have a working definition of coercion, for it is this specific type of State action which Mill sought to prevent in self-regarding actions. For our purposes, coercion will be considered to be the exercise of force to obtain compliance. Mill opposed coercion on two different levels, one theoretical and the other pragmatic. Theoretically, he opposed coercion concerning self-regarding behavior because it prevents individuals from becoming the complete human beings they should be. Coercion limits spontaneity, and restricts the choices of the agent. Mill believed individuals learn and grow in the degree to which they are independent, self-reliant human beings. By letting the State make decisions which concern only the individual, society denies the individual an important aspect of life, and the strength of his character will be diminished. Once it is determined, however, that one's actions are not purely self-regarding, but do, in fact, affect others, then Mill stated the issue of State interference is open for discussion. Note, that even in the other-regarding sphere, Mill was still quite cautious about supporting State action. His criterion

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36 for determining if the State should become involved in other-regarding behavior is utility. The questions which must be answered affirmatively, in order to justify State interference, .are ones of practicality and efficiency. Are the proposed means sufficient to achieve their end? For instance, would a law that is difficult to enforce, and one in which compliance is extremely low, justify the degree of intrusion it permits the State? Mill would argue that state action which has little or no chance of achieving its stated goals should be denied. Furthermore,even if the objectives of the inter-ference are good, and even if they are obtainable, are they important enough to justify the degree of restraint proposed? What legitimate actions should the State implement to reduce the number of drunk drivers? What are the guidelines for determining what measures can be implemented in the name of national security? Mill provided us with a valuable principle in determining the legitimacy and efficiency of State action in matters in which he allowed such interference. Mill presented three main objections to government interference in this arena. The objections to government. interference, when it is not such as to involve infringement of liberty, may be of three kinds. The first is, when the thing to be done is likely to be better

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done by individuals than by the government. Speaking generally, there is no one so fit to conduct any business, or to determine how or by whom it shall be conducted, as those who are personally interested in it The second objection is more nearly allied to our subject. In many cases, though individuals may not do the particular thing so well, on the average, as the officers of government, it is nevertheless desirable that it should be done by them, rather than by the government, as a means to their own mental education--a mode of strengthening their active faculties, exercising their judgment, and giving them a familiar knowledge of the subjects with which they are thus left to deal The third and most cogent reason for restricting the interference of government is the great evil of adding unnecessarily to its power. Every ftinction superadded to those already cised by the government causes its influence over hopes and fears to be more widely diffused, and converts, more and more, the active and ambitious part of the public into hangers-on of the government, or of some party which aims at becoming the His last point is his most powerful argument against state interference. Any amount of power the 37 State is allowed to accumulate runs the risk, a very great one at that, of feeding an institution inherently amenable to cbrruption and abuse. This risk is as applicable to the most democratic State in existence, as it is to the most authoritarian. Restrictions must be placed upon all governments, and that is the intention of Mill's principle. In self-regarding matters, the State is forbidden. In other-regarding matters, the State has the right to enter, but we should be quite vigilant in allowing it to interfere in even these matters. We know our own interests best, not because

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38 the government is inherently inept and misdirected. Rather, because all things being equal, it is beneficial for us to learn about our own interests by making our own mistakes, or creating our own successes, rather than submitting to the state. The dangers of collective coercion, according to Mill, may easily outweigh the errors committed by individuals.

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I 39 NOTES--CHAPTER II 1 H. J. McCloskey, John Stuart Mill: A Critical Study (London: Macmillan and Co., 1971), p. 114. 2 H. L. A. Hart, "Paternalism and the Enforcement of Morality," in Limits of Liberty: Studies of Mill's Liberty, ed. Peter Radcliff (Belmont, Calif.: Wadsworth, 1966), pp. 62 -6 3 3David G. Ritchie, The Principles of State Interference (Patermoster Square: Swan Sonnenschein & Co., 1891). 4John Stuart Mill, Utilitarianism, On Liberty, and Considerations on Represeritative Government, H. B. Action (New York: E. P. Dutton and Co., 1972), p. 124. 5James Fitzjames Stephen, Liberty, Equality, Fraternity (Cambridge: Cambridge University Press, 1967j original 1873). 6Mill, Utilitarianism, On Liberty, and Considerations on Representative Government, p. 120. 7 R J. Halliday, "Some Recent Interpretations of John Stuart Mill," in Mill: A Collection of Critical Essays, J. B. Schneewind (Garden City, N.Y.: Anchor Books, 1968). 8Mill, Utilitarianism, On Liberty, and Considerations on Representative Government, p. 75. 9Isaiah Berlin, "The Notion of 'Negative' Freedom," in Limits of Liberty: Studies of Mill's Liberty, ed. Peter Radcliff (Belmont, Calif.: Wadsworth, 1966), p. 75. 10Mill, Utilitarianism, On Liberty, and Considerations on Representative Government, p. 75.

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I I Ilsee the following sources: James Fitzjames Stephen, "Liberty, Equality, Fraternity," and Isaiah liThe Notion of 'Negative' Freedom," in Limits of Liberty: Studies of Mill's Liberty, ed. Peter Radcliff (Belmont, Calif.: Wadsworth, 1966), p. 75. 40 12, h' h "1 f f RltC le, T e Prlnclp es 0 State Inter erence, p. 85. 13 Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1978), Chapter 11. 14Ibid., p. 263. 15M'll 'I' 0 'b d C 'd 1 Utl ltarlanlsm, n Ll erty, an onsl er-ations on Representative Government, p. 73. 16Ibid., p. 75. 17 Ibid., p. 115. 18Alan Ryan, The Philosophy of John Stuart Mill (London: Macmillan and Co., 1970), Chapter 11. 19 'II 'l't" 0 'b d C 'd Ml ,Utl 1 arlanlsm, n Ll erty, an onsl er-,ations on Representative Government"p. 138. 20Stephen, "Liberty, Equality, Fraternity." 21Mill, Utilitarianism, On Liberty, and Considerations on Representative Government, p. 138. 22Gertrude Himmelfarb, On Liberty and Liberalism: The Case of John Stuart Mill (New York: Alfred Knopf, Inc., 1974), p. 20. 23Mill, Utilitarianism, On Liberty, and Considerations on Representative Government, p. 164.

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I I I I CHAPTER III MANDATORY HELMET-USAGE LEGISLATION: AN OVERVIEW What was the primary force behind mandatory helmet usage laws in 'the United States? Why did the various state governments deem it necessary to require motorcyclists to wear protective headgear? By the mid1960s, there was concern among certain members of Congress, as well as within the Department of Commerce, about the increasing number of motorcyclist fatalities and injuries (see Table 111.1). The Highway Safety Act of 1966 authorized the DOC to set minimum standards for state highway safety programs.l The Act also authorized the DOC to withhold 10 percent of Federal highway con-struction funds and all Federal highway funds from any state which failed to comply with these stand-ards. In 1967, the Secretary of Commerce issued thirteen safety standards, one of which pertained to 2 motorcycle safety. One part of the motorcycle stand-ard required states to enact mandatory helmet use laws. There'were several reasons for this particular only seven states required any special Educational and

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I I 42 TABLE III.l MOTORCYCLE FATALITIES AND REGISTRATIONS, 1958-1979 Fatality Rate Per Registered Year Fatalities Vehicles 1958 720 521,290 1959 850 565,308 1960 790 574,032 1961 740 595,613 1962 810 660,517 1963 940 786,541 1964 1,240 985,744 1965 1,650 1,381,956 1966 2,230 1,753,178 1967 2,170 1,953,022 1968 1,940 2,089,060 1969 1,870 2,315,708 1970 2,280 2,824,098 1971 2,650 3,343,695 1972 3,030 3,759,879 1973 3,230 .4,371 ,Oll 1974 3,370 4,966,399 1975 3,189 4,964,070 1976 3,312 4,933,332 1977 4,104 4,881,150 1978 4,572 4,858,707 1979 4,850* 4,984,000* *Estimates--Registered Vehicles (FHWA) Fatalities (NHTSA) 10,000 Registered Vehicles 13.8 15.0 13.8 12.4 12.3 12.0 12.6 11.9 12.7 11.1 9.3 8.1 8.1 7.9 8.1 7.4 6.8 6.4 6.7 8.4 9.4 9.7* SOURCE: Registered Vehic1es--FHWAi Fata1ities--NHTSA, Fatal Accident Reporting Systemr U.S. Department of Transportation, Report to the Congress on the Effect of Motorcycle Helmet Use Law Repea1--A Case for Helmet Use (Washington, D.C.: National Highway Traffic Safety Administration, April 1980).

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43 training programs on motorcycle safety were either not available, or not promoted. Next, with voluntary use of helmets, 25 percent of motorcyclists used helmets. The United States Public Health Service estimated in 1966 that 100 percent helmet usage would reduce motorcyclist fatallties by 40 percent. Finally, the voluntary programs being implemented were deemed by the DOC as too expensive, and ineffective. After reviewing existing mandatory usage laws in New York, Georgia, and Michigan, the newly created Department of Transportation deter-mined the greatest single measure to produce rapid short term effects was mandatory helmet laws. By the close of 1969, forty states had adopted legislation requiring protective headgear. The following is the statute passed by Colorado, and it is repre-sentative of legislation passed by other states. Colorado Revised Statute 13-5-159 Minimum safety standards for motorcycles and cycles.--No person shall operate any motorcycle or motordriven cycle on any public highway in this state unless such person and any thereon is wearing securely fastened on his head a protective helmet designed to deflect blows, resist penetration, and spread the force of impact: nor shall any such vehicle be so operated unless the operator and any passenger shall have in place on his helmet a face shield or shall wear covering his eyes goggles or eye glasses made of safety glass or plastic lens. Each such llclmet shall be coated with a reflectorized substance, or have attached thereto a reflectorized material, on both sides and the back thereof, witll a minimum

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I I I I of four square inches of such coated substance 3 or attached material in each of such locations. 44 The number of states adopting helmet legislation continued to grow and by 1975, helmet use was required of all motorcyclists in forty-seven states, the District of Columbia and Puerto Rico (see Table 111.2). In 1975, the Department of Transportation was considering whether the three without such legislation should have their safety programs disapproved, thereby losing federal funds. Before final decisions were made, the Congress 4 passed the Highway 8.afety Act of 1976. Section 20 8 (a) of the Act removed the DOT's authority to require the states to adopt helmet laws, thereby preventing the Department from imposing financial sanctions on any state tha, t repealed its law. This section also removed from DOT the authority to withhold 10 percent of a state's highway construction funds for failing to imple-ment any of the standards promulgated under the Act. State legislatures responded quickly to this lifting of sanctions by Congress. By 1979, twenty-seven states had either fully repealed their helmet laws, or revised them so that only motorcyclists under eighteen were required to wear helmets (see Table 111-3). From 1976 to 1979, the number of deaths from motorcycle accidents increased from 3,312 in 1976 to

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1 I Year 1966 .1967 1968 1969 1970 1971 1972 1973 1974 1975 TABLE III.2 NUMBERS OF STATES* HELMET LAWS BY YEAR Number of States 1 20 16 3 1 3 2 1 1 1 *Includes the District of Columbia and Puerto Rico. **Implementation date of legislation was usually from one to six months after enactment and date. SOURCE: U.S. Department of Transportation, A Report to the Congress on the Effect of Motorcycle Helmet Use Law Repeal--A Case for Helmet Use (Washington, D.C.: National Highway Traffic Safety Administration, April 1980) 45

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i TABLE III.3 STATUS OF HELMET REQUIREMENTS IN REPEAL STATES BY YEAR OF REPEAL* Year of Repeal 1976 (9) Alaska Arizona Connecticut Iowa Kansas Louisiana North Dakota Oklahoma Rhode Island 1977 (13) Colorado Hawaii Indiana Maine Minnesota Montana New Hampshire New Mexico Oregon South Dakota Texas Utah Washington Current Helmet Requirement Provisional License Holders Only (Generally Minors) Only under 18 None None Only under 18 Only under 18 Only under 18 Only under 18 Only passengers None Only under 18 None None Only under 18 Only under 18 Only under 18 Only under 18 Only under 18 Only under 18 Only under 18 Only under 18 None Only under 19 Only under 18 46 1978 (4) Delaware Idaho Ohio Wisconsin Under 18 and first year novice Only under 18 1979 (1) Maryland *August 1979 Only under 18 SOURCE: U.S. Department of Transportation, A Report to the Congress on the Effect of Motorcycle Helmet Use Law Repeal--A Case for Helmet Use (Washington, D.C.: National Highway Traffic Safety Administration, April 1980).

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47 4,850 in 1979. This represents an increase of 46 percent over 1976 (see Table 111.4). In respOnse to this increase, the Congress required the Department of Trans-portation to study the impact of the repeals, and issue 5 a report. This report was ttansmitted to Congress in early 1980. In summary, i t was based on a study of four states: Colorado, Kansas, Oklahoma, and South Dakota. These findings were presented in the report. Compliance with the legislation varied between 95 and 100 percent. Helmet use following repeal of the legislation ranged 6 between 40 and 60 percent. Head injuries were twice as great for nonhelmet riders (see Table 111.5) Fatal head injuries ranged from three to nine times greater for nonhelmet riders (see Table 111.6). Furthermore, the report stated that laws requir-ing only riders eighteen years or younger to wear helmets are relatively ineffective. Unhelmeted riders sustain more severe head injuries, which require longer hospital-ization. This creates greater medical care costs, which. in turn places a substantial economic burden on society in terms of insurance, emergency medical care, hospital, rehabilitation, and welfare costs (see Tables 111.7, 111.8, 111.9).

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State Colorado South Dakota Kansas TABLE III.4 FATAL HEAD INJURIES PER 1,000 CRASH-INVOLVED RIDERS (PRE-REPEAL VS. POST-REPEAL) Pre-Repeal Post-Repeal 16 73 15 24 6 28 Critical Level of Difference (p) .0001 .1335 .0091 SOURCE: U.S. Department of Transportation, A Report to the Congress on the Effect of Motorcycle Helmet Use Law Repeal--A Case for Helmet Use. (Washington, D.C.: National Highway Traffic Safety Administration, April 1980).

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TABLE III.5 MOST SEVERELY INJURED BODY LOCATION PER 1,000 CRASH-INVOLVED RIDERS Colorado Oklahoma South Dakota Kansas Helmet Non Helmet Non Helmet Non Helmet Non Head 64 229* 47 171* 43 100* 61 142* Face 50 40 15 46 11 6 Neck 9 9 15 14 9 9 12 2 Chest 70 50 32 40 20 32 18 6 Abdomen 24 15 49 37 16 25 14 8 Pelvis 30 19 15 11 13 3 150 79 Extremities 328 274 497 403 186 91 Total 575 636 670 722 298 276 255 237 NOTE: Kansas combines Head and Face, Pelvis and Extremities. *Difference in head injury rates between helmeted and nonhelmeted riders are statistically significant at p < .0005 level. SOURCE: U.S. Department of Transportation, A Report to the Congress on the Effect of Motorcycle Helmet Use Law Repeal--A Case for Helmet Use (Washington, D.C.: National Highway Traffic Safety Administration, April 1980)

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State Colorado Oklahoma South Dakota Kansas TABLE III.6 FATAL HEAD INJURIES PER 1,000 CRASH-INVOLVED RIDERS (HELMETED VS. NONHELMETED) Critical Level of Helmeted Nonhelmeted Difference (p) 9 23 .0146 11 63 .0001 13 38 .0150 6 41 .0038 SOURCE: U.S. Department of Transportation, A Report to the Congress on the Effect of Motorcycle Helmet Use Law Repeal--A Case for Helmet Use (Washington, D.C.: National Highway Traffic Safety Administration, April 1980). U1 o

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TABLE III. 7 PRELIMINARY RESULTS FROM A SURVEY OF 95 ACCIDENT-INVOLVED RIDERS IN SQUTH DAKOTA Average Temporary Medical Costs Average Temporary Work Costs Motorcycle Repair Costs Helmet $1,947.10 $1,067,63 $619.60 No Helmet $2,590.69 $1,249.35 $474.25 Remarks Consists of costs by doctor, emergency room, initial hospital stay, follow-up treatment for 12 months Consists of salary lost due to missing work from existing job, incapacitation preventing looking for a new job or still unemployed Costs of repairing damage reSUlting from accident NOTE: It is interesting to note that average medical costs incurred by nonhelmeted drivers is one and one-third times that of helmeted drivers. Similarly, work costs for nonhelmeted drivers is about one and one-fourth that of helmeted drivers. SOURCE: U.S. Department of Transportation, A Report to the Congress on the Effect of Motorcycle Helmet Use Law Repeal--A Case for Helmet Use (Washington, D.C.: National Highway Traffic Safety Administration, April 1980).

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52 TABLE IIL8 HOSPITAL DATA FOR MOTORCYCLE ACCIDENTS WHICH OCCURRED DURING 8/28/76 THROUGH 8/28/78 Dallas Counti: Harris Count;t Item Descriptor Pre-Repeal Post-Repeal Pre-Repeal Post-Repeal TOTAL 110 156 82 90 Hospital Disposition: Received treatment and released 46 68 59 36 Hospitalized 45 57 8 24 Dead on arrival 7* 20* 13** 30** Dead within 30 days 9 10 2 0 Unaccounted 3 1 0 0 Duration of Hospitalization: Less than 5 days 79 118 76 77 5 days but < 10 days 12 13 2 6 10 days but < 15 2 10 2 2 15 days but < 20 days 5 6 0 1 20 days but < 25 days 2 2 0 1 25 days but < 30 days 3 2 0 1 30 days or more 7 5 2 2 Average DUration (days) 6.8 5.7 3.6 4.4 Cost of Accident: $ 520 1 0 0 0 2,190 32 39 33 21 4,350 28 50 25 25 B,055 25 28 8 9 86,955 2 4 a 3 192,240 0 2 0 0 Undetermined 22 33 16 32 *Statistically significant increase in percent DOA in.the post:"repeal period at p ., .0359 level. **Statistically 'significant increase in percent DOA in the post-repeal period at p < .0001 level. NOTE: In 1977, the fir.st full year after the mandatory use of motorcycle helmets was repealed, the Bexar County Hospital in Bexar County, Texas received 28 motorcycl' e patients with head injuries for a total cost of $42,189.31 of which only $3,353 was collected and the balance remained a debt to the public at large. This was reported to the NHTSA through the docket 79-07 by the Neurology Clinic of that hospital. SOURCE: U.S. Department of Transportation, A RepOrt to the Congress on the Effect of Motorci:cle Helmet Use Law Repeal--A Case for Helmet lise (Washington, D.C.I National Highway Traffic Safety Administration, April 1980).

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53 TABLE III.9 SEVENTY-ONE MOTORCYCLISTS' HOSPITAL BILLS* Financial Responsibility Dollars Percentage Conunercial Insurance 17,919 Blue Cross 37,607 Medically Indigent Fund 40,942 Workmen's Compensation 6,530 Patients 5,591 Medicaid 1,438 Unpaid 52,436 *Admitted to Denver General Hospital July 1976-June 1977. Amounts and Percentage Distribution According to Financial Res ponsibili ty 11.0 23.1 25.5 4.0 3.4 .8 32.2 SOURCE: U.S. Department of Transportation, A Report to the Congress on the Effect of Motorcycle Helmet Use Law Repeal--A Case for Helmet Use (Washington, D.C.: National Highway Traffic Safety Administration, April 1980).

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i t I I According to the Department of Transportation, voluntary programs are ineffective and more costly than mandatory laws. There are no data which support the argument that helmets cause accidents or injuries. Finally, the Department of Transportation maintained these findings are consistent with thirty years of 54 research. The position of the report was clearly stated--the law is considered to be the single most effective action that a State can take to reduce motorcyclists' deaths and serious injuries. There seems to be little doubt that mandatory use of helmets for motorcyclists results in a decrease of the number of fatalities and injuries of riders. The law does exactly what it was intended to do, which is make motorcycle riding more safe. The question still remains, however, concerning the "right" of the govern-ment to impose such legislation. An overview of the various court cases concerning the legitimacy of mandatory helmet usage legislation reveals the issues raised by Mill's principle to be the ideological rationale for both the opponents and supporters of such legislation. In essence, the debate concerning the legitimacy for such legislation is centered upon whether riding a motorcycle without a helmet is self-regarding or other-regarding action. vlhere

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I I \ I the courts determined it was other-regarding behavior, they concluded the State had legitimate power to pass such legislation. In all but two instances, the legis-lation was upheld as legitimate use of State police 7 power. There were two general arguments presented in support of the statutes: the first will be referred to as the "flying object" and the second will 55 concern the direct and indirect "social costs" resulting from accidents involving unhelmeted riders. The "flying objectll argument can be summarized in this manner: a motorcyclist is vulnerable to "flying debris," be it dirt, leaves, sticks, stones, or other matter, which may adversely affect the control of the motorcyclist. This, in turn, can result in loss of control of the motorcycle, and cause IIharm to others" by crashing into other motorists. Thus, the use of protective headgear protects others by'providing clear vision and protection from IIflying objectS." The courts' of Wisconsin and New Jersey presented this argument as a means of establishing the legislation as a legitimate exercise in providing for the general welfare and safety of the public, thereby making it constitutional.8 The second argument in support of such legisla-tion concerns the costs inflicted on others by the unhelmeted riders involved in accidents.9 These costs

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56 include the medical costs for victims, who often end up in municipal hospitals; the increase in insurance premiums resulting from the increased length of time spent in hospitals; along with the severity of injuries incurred by unhelmeted riders, particularly when compared to helmeted riders. Furthermore, the Wisconsin Supreme Court presented an additional argument for a state with comparative negligence. In a comparative negligence state, with heavy responsibilities as to lookout and control placed upon all vehicle operators, the very real possibility of being held at least partially responsible for an accident gives every user an interest, on other than humanitarian concerns, in provisions that lessen the probabilities of death or disability as an outcome of a highway encounter. (Bisenius v. Karns 42 Wis 2d 42,165 N.W. 2d 377, 381-82 (19E9)). Another example of social cost concerns "wards of the state," which could plausibly include either the severely injured rider, or the dependents of certain fatalities. The District Court of Massachusetts extended the social costs to other functions as well. From the moment of the injury, society picks the person up off the highway; delivers him to a municipal hospital 'and municipal doctors; provides him with unemployment compensation if, after recovery, he cannot replace his lost job,. and, if the injury causes permanent disability, may assume the responsibility for his and his family's continued subsistence. We do not understand a state of mind that permits plaintiff to think that only he himself is concerned. (Simon v. Sargent 346 F. Supp. 277, 279 (Mass. 1972)).

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I \ 57 Thus, the social costs argument is quite simple and straightforward: individual behavior resulting in the use of funds, facilities, and personnel supported by the taxpayers is, ihherently, "other-regarding" behavior, and becomes subject to legitimate police power. There is a great deal of irony in reviewing the legislative history of the legislation. The intention of the Department of Transportation could not be clearer: it sought to decrease the number of fatalities and injuries on the public highways, and determined manda-tory helmet usage legislation for motorcyclists would do precisely that. They were correct, for the legis-lation does just that. The intent of the various state legislature is more varied, but it can be argued forcefully that those which repealed the law were not primarily concerned with either protecting the motorcyclists or other motorists, or reducing the impact on the public treasury. Based upon the quickness of their repeals, following the lifting of sanctions by Congress, we can conclude that part of the motivation for passing the legislation originally was to avoid losing federal funds. Finally, the courts utilized the argument that self-protection was not justification for such legisla-tion. The courts allowed such legislation primarily

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I I I \ I \ I I 58 because they deemed riding motorcycles without a helmet consti tuted "harm to others." Therefore, the courts emphasized the "flying object" argument and the "social costs" argument as the rationale for such legislation. What is significant about the rationale of the courts is it places Mill's principle squarely at the center of the legislation. The courts acknowledged that two spheres of behavior do exist.lO They also acknowl-edged the only justification for restricting individual behavior is when it affects others in a negative manner. They therefore developed arguments that went beyond the obvious self-protection intentions of the Department f T t d t' f hI' 1 11 0 ransporta lon, ln or er to JUs 1 Y suc egls atlon. Mill's principle is of primary importance to such legis-lation for these reasons. The courts acknowledged the existence and validity of distinguishing between self-regarding and other-regarding behavior. The courts overwhelmingly determined the legislation concerned itself ,with other-regarding behavior. It is important to if Mill would disagree with this and this question will be one of the issues addressed in the next chapter.

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NOTES--CHAPTER III lHighway Safety Act of 1966 (Public Law 89-564, 89th Congress S. 3052), 9 September 1966. 59 2Highway Safety Programs Standards: Department of July L.C. 67-62464. 3colorado Revised Statutes 1963, .1969 Permanent Cumulative Supplement, Bradford-Robinson Printing Co., Denver, Colorado. 4Highway Safety Act of (Public Law 94-280, 94th Congress) 5 DOT-HS-805-312, p. IV-2. 6Ibid., p. IV-5. 7AMA v. Davids, 11 Michigan. App 351, 158 N.W. 2d 72 (1968). The Court of Appeals of Michigan rejected the argument of the Michigan Attorney General that the State has an interest in the viability of its citizens and can legislate to keep them healthy and selfsupporting. The court maintained this line of reason-ing could lead to unlimited paternalism. A summary of the ruling: "Proceeding requesting a declaration of rights as to the constitutionality of statutory amendment requiring motorcyclists and riders to wear crash helmets. The Circuit Court, Inham.County, Richard E. Robinson, J., upheld the amendment, appeal was taken. The Court of Appeals, Miller, J., held that amendment requiring motorcyclists and riders to wear crash helmets was unconstitutional since it had no relationship to the public health, safety and welfare." This ruling was later reversed. See, e.g., People v. Fries 42 Ill. 2d 446,.350 N.E. 2d 149 (1969). In this case the Illinois Supreme Court ruled the mandatory helmet-usage statute violated the Fourteenth Amendment. A summary of the ruling: "Defendant was convicted in Circuit Court, Madison County, A. A. Matoesian, J., of operating motorcycle without wearing protective headgear and he appealed. The Supreme Court, Kluczynski, J., held that statute

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1 I I 60 requiring operators of motorcycles and every passenger thereon to wear protective headgear has as its purpose the safeguarding of the person wearing the headgear and involves essentially matter of personal safety is beyond police power of legislature and is violative of Fourteenth Amendment." 8Bisenius v. Karns 42 Wis. 2d 42, 165 N.W. 2d 377 (1969). The Supreme Court of Wisconsin offered support for the "flying object" argument as justification of mandatory helmet-usage legislation. "The very term, 'protective headgear' implies protection of the head of the wearer. It must be conceded that this particular statute is intended primarily to diminish the severity of the accident upon the victim, himself. But can we say that such safety requirement does not affect or concern at all other users of the public highway? "Anything that might cause a driver to lose control may well tragically affect another If the loss of cyclist control occurs on a crowded freeway with its fast-moving traffic, the veering of a cyclist from his path of travel may pile up a half-dozen vehicles. So, as to the helmet requirement law, one question that arises is whether the presence of a protective helmet would, in some cases and under some circumstances, make 1es, s likely the diverting of attention or loss of its driver." A summary of the ruling: "Declaratory judgment action brought by motorcyclist challenging validity of certain safety statutes relating to the operation of motorcycles. The Dane County Circuit Court, W. L. Jackman, Circuit Judge, upheld the statutes, and an appeal was taken. The Supreme Court, Robert W. Hansen, J., held, inter alia, that sole purpose, effect and result of safety st'atutes in question was not to protect the motorcyclists, riders or both against themselves; rather, the statutes concerned or benefited other persons, particularly other users of the public highways; accordingly, enactment of the statutes were not outside scope of state's police power authority." See, e.g., State v. Mele, 103 N.J. Super. 353, 247 A.2d 176 (1968). The court agreed with the "flying object" argument. "At first glance, a reqtiirement of protective headgear seems aimed only at protection of the individual. However, serious thought indicates otherwise. The general public has a right to be protected from

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I I I I 61 the accidents which might result from a blow on the head received from objects kicked up from the highway. The blow, however slight, might be just enough to distract a motorcyclist and cause him to lose control and become 'a menace to other vehicles or pedestrians on the highway." A summary of ruling: "The defendant was charged with operating a motorcycle wi thou t wearing an approved protective helmet. The Municipal Court of Jersey City rendered judgment, and defendant appealed. The County Court, Duffy (PaulJ.), J.C.C., held that statute requiring motorcyclists to wear approved protective helmets bears reasonable, real and substantial relation to public health, safety and welfare. and is constitutional as valid exercise of police power of state." The ruling was affirmed. 9 Simon v. Sargent 346 F. Supp. 277 (Mass. 1972). The United States District Court based its support for mandatory helmet-usage legislation on the fundamental grounds that the public has an interest in minimizing the impact upon the public treasury. A summary of the ruling: "Action for declaratory judgment that a state cannot constitutionally require unwilling motorcyclists to wear protective headgear. The three-judge District Court held that Massachusetts statute requiring motorcyclists to wear protective headgear is not violative of due process, notwithstanding claim that police power does not extend to overcoming right of an individual to incur risks that involve only himself, since public has an interest in minimizing resources directly involved, in that from moment of injury, society picks the person up off the highways, delivers him to a municipal hospital and municipal doctors, provides him with unemployment compensation if, after recovery, he cannot replace his lost job, and, if injury causes permanent disability, assumes responsibility for his and his family's continued subsistence." See, e.g., State v. Anderson, 3 N.C. App. 124, 164 S.E. 2d 48 (1968). The Court of Appeals of North Carolina argued that riding a motorcycle without a helmet adversely affected insurance premiums for others, therefore, the statute was valid. "In North Carolina, by reason of our Motor Safety and Financial Responsibility Act, G.S., Chap. 20, Art. 9A, most operators of motor vehicles in our State are required to carry motor vehicle liability

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I I I I I I I I I I insurance at a heavy annual premium cost. Any statute which can reasonably be expected to reduce that premium cost necessarily affects the welfare of the public at large. Reducing the number of deaths and tne severity of injuries to riders of motorcycles on the streets and highways of our State and the consequent reduction in liability insurance premium costs does, therefore, affect not alone that limited class of persons who ride motorcycles, but also directly and beneficially affects all operators of motor vehicles in our state." See, e.g., Love v. Bell 171 Colorado 27, 465 P.2d 118 (1970). The Supreme Court of Colorado argued in favor of such legislation, based upon the social costs of riding motorcycles without protective headgear. "It is, of course, part of romantic tradition that an individual Ought to be able to lead an adventurous and swashbuckling existence without regard to his own safety and without interference from the King. But when that individual as a result of 62 this freewheeling activity seriously injures or kills himself, the ultimate result is unfortunately not always borne by him alone. Today our society humanely accepts as one of its functions the responsibility for relieving the economic suffering of its members. The evidence in the record here clearly shows a higher frequency of serious head injury and death among motorcyclists wearing helmets. Persons often become public charges because of their prolonged hospitalization for serious injury, and families are often required to be ported by public welfare as a result of the death of their breadwinner. We would point out that this Court has held that the police power relates not merely to the public health and public physical safety, but also to public financial safety, and that laws may be passed within the police power to protect the public from financial loss. 10AMA v. Davis, 11 Michigan, App.35l, 158 N.W. 2d 72 (1968). See, e.g., Love v. Bell, 171 Colorado 27, 465 P. 2d 118 (1970). 11 State v. Anderson, 3 N.C. App. 124, 164 S.E. 2d 48 (1968). See, e.g., State v. Mele, 103 N.J. Super. 353,247 A.2d 176 (1968).

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CHAPTER IV MILL AND PATERNALISM: SPECIFIC IMPLICATIONS AND FAILINGS We have examined Millis essay, along with an analysis of mandatory helmet-use legislation. What value can be found in Millis principle in determining the legitimacy and wisdom of this type of legislation? What criteria should be used in determining the wisdom of State interference in behavior which might be regarded as primarily self-regarding? Finally, does our analysis of helmet legislation suggest there are certain improve-ments and amendments which would strengthen Millis argument, as it applies to mandatory helmet-use legisla-tion? These are the primary questions and issues to be addressed in this chapter. Does Millis principle of liberty support mandatory helmet usage legislation? First, it is neces-sary to determine if riding a motorcycle without a helmet constitutes self-regarding for if it does,then Mill would certainly oppose such legisla. 1 tlon. The mere act of riding a motorcycle without a helmet, in itself, does not harm others. It can be

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I I 64 c .onsidered harmful to others only upon the event of an accident. Because the harm is therefore an indirect consequence of the initial action, Mill might well consider such harm as "c;:ontingent injury," and therefore immune to interference.2 Yet, there are other criteria Mill wanted us to consider. He stated that behavior which presents a definite damage or definite risk of damage to others can be legitimately regulated.3 There is a definite, though numerically undeter-mined, risk of having flying debris strike the rider, thereby causing loss of control of the motorcycle, and creating a real.danger for other motorists or pedestrians. This being the case, Mill would recognize the possibility of considering the action of an unhelmeted rider as other-regarding. The other manner in which such behavior affects others is the social costs passed on to the public treasury. The data presented in Chapter III are con-vincing enough to conclude that the costs to the public treasury, while undetermined, do constitute a of harm to others. Based upon the social costs and risk of harming others, Mill would most likely conclude that riding a motorcycle without a helmet is other-regarding behavior, and is properly open for discussion concerning interference.

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Having concluded that riding a motorcycle with-out a helmet is other-regarding behavior, Mill would then determine the propriety of interfering with such behavior. In the Applications section ofhis essay, Mill presented three main objections to government interference with other-regarding behavior.4 The first two objections would not directly apply to the legis-lation, but the third one does. This third objection reflected Mill's concern about adding unnecessarily to the power of the State. I believe Mill would 65 consider the act of riding a motorcycle without a helmet to be. other-regarding behavior, but be opposed to the mandatory helmet usage legislation. It would be clear to Mill that the primary consequence of such legislation .was to protect the motorcyclists from their own willful action. Certainly, the arguments concerning "flying objects," and "social costs" are worth considering, and they have provided a rationale to the courts for legitimizing the legislation. The DOT, however, had one primary intention when it proposed such legislation, and that was to reduce the number of fatalities and injuries, not to other motorists, but to the riders of motorcycles. The legislation does exactly that, and at a minimal cost to the treasury. The benefits to others

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I I i I I are only secondary consequences of the legislation, but Mill would acknowledge such benefits, and give them due consideration. Mill, however, was quite clear in stating that a person is sovereign over his own mind and body.5 He rejected the right of the State to interfere in one's 6 behavior for his. or her own good. Mill believed a person knows his own interests best, and he should have the right to make errors of judgment. If the errors adversely affect the public treasury, does the State have the right to interfere? Mill would argue the State has the right to interfere, but should not automatically do so. He would argue it 66 would depend upon the degree of impact upon the treasury. For example, Mill would acknowledge that any State has a limited amount of resources, both human and fiscal. Therefore, if the costs to the public treasury are substantial, then a situation might well arise in which certain basic needs, such as the feeding and housing of the disadvantaged, are not being met because the resources are being spent upon less beneficial services. Thus; might be argued that by allocating public I resources to injured motorcyclists the "liberty" of I others to enjoy the basic necessities of a decent I living is being restricted. I I I

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I I I "I I I I I I I t I I j I \ I 67 This argument is valid, but it is essential to determine at what point a liberty should be restricted because of its cost to the public treasury. If the figure is $5 billion, for example, a strong case can be made for restricting such behavior. This figure would exceed the total amount spent by the federal government in 1984 for mass transportation. It would be approximately five times the amount the federal govern-ment spent that same year on the National Cancer Institute.7 There is no one magic number which can determine at what point individual behavior should be restricted. I use this figure only to make the point that social costs might, on their own, be justification for iriterference, for the public resources are limited. It should be noted, however, that Mill rightfully argued against what he referred to as the "social rights" argument. As noted in Chapter II, proponents of the "social rights" theory maintained no human behavior can be considered since all individual action, in some manner, ultimately affects others. Mill warned that this type of reasoning would give the State unlimited freedom to enter all aspects of individual behavior. I agree with Mill's concern, and believe it equally applies to those who use the public treasury as justification for passing paternalistic legislation, on

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68 the grounds that such laws save the taxpayers money. If this argument is carried to its extreme, then the State .might well be justified in poor people, in order to reduce the number of children on welfare. It might well restrict the. consumption of sugar, alcohol, tobacco, and preservatives, to reduce the medical costs to the public treasury. It has been acknowledged that in cases in which the costs to the treasury are substantial, interference might be justified. It should also be acknowledged that if we are not vigilant about distinguishing between that action which is substantial and that which is only significant or even minimal, we are vulnerable to unlimited interference on the grounds that it saves tax dollars. There is no inherent right for citizens to have their taxes reduced by restricting individual behavior, especially when the society has decided to provide certain benefits, which could be influenced, directly or indirectly, by almost all human behavior. Mill's criteria for such interference could be posed as a question. Does the collective harm of such action outweigh the collective gain? This is a most dificult question to answer, for we are often forced to determine collective harm on monetary grounds, and balance them with the immeasurable but, Mill would argue, quite

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substantial benefits society reaps from allowing its citizens the liberty of making errors of judgment.8 Mill would maintain that legislation primarily designed for protecting people from their own actions, no matter how foolish, should not automatically be allowed, simply on the secondary grounds that it will possibly protect the safety of others, or reduce the impact upon the public treasu.ry. Certainly, if the 69 costs to the public treasury are great enough, then this alone might justify interference. It is not clear that this is the case with unhelmeted cyclists. It would appear that the twenty-two states which repealed the legislation did not consider such costs to be so extraordinary as to justify the interference.9 Mill would be greatly concerned about the danger of adding to the power of the State, and he would take a strong stand against this type of paternalistic legis-lation. He would want us to be constantly on guard against adding needlessly to the power of the State. He would probably not be convinced the harm done to others, through "flyingobjects" or costs to the public treasury, outweighs the negative consequences of this addition to State power, including the denial of cyclists' liberty to wear or not weai helmets. Specifically, Mill would .examine the primary intent and the primary consequence

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I I t I I I I 1 I 70 of the legislation, and he would probably conclude that it is fundamentally designed to protect the rider. On the grounds that citizens are sovereign over their own body and mind, Mill would likely oppose the legislation. I have concluded that Mill would oppose mandatory helmet usage legislation. Is he right in doing so? I agree with Mill's hypothetical conclusion, for I find value in his criteria for determining the legitimacy of such legislation. First, as stated earlier, the value of his two-sphere model is great. We must be constantly on guard whenever we expand the power of the State, especially when it is primarily designed to protect one from one's own actions. Mill's principle provides us with a workable model, first in determining what behavior is rightfully considered other-regarding, and then in determining if behavior should be interfered with. Furthermore, it is essential that other criteria be introdu6ed into the process, beyond a monetary one. Merely because an individual's behavior costs the public treasury money, it should not automatically be interfered with. There are certain benefits to society which cannot be measured in dollars, such as the enjoyment of liberty. We must we ,igh the benefits of diversity and individ-uality, before the decision is made.

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71 How do we determine at what point the behavior should be interfered with? This is not an easy task, for the degree of cost is vital. It would be arbitrary and subjective to determine a specific level of monetary costs, which would be the determining point for inter-ference. It is vital, however, that whatever level of costs is used, it represent a substantial amount, for there will always be those who argue that any drain on the public is justification for interference. What essential principles should be brought forth in considering such interference? First, we must address the issue of liberty. What particular liberty is being restricted? This is important, for not all liberty is of equal value. For the liberty I to enjoy the basic necessities of sustaining life is more essential than the liberty to act upon a whim or I ride helmetless. Mill forcefully argued that liberty has intrinsic value and is not only beneficial to I I society, but essential to any good society. I I The next principle to consider is that of the general welfare .. To what extent is the welfare of I others enhanced? The emphasis here is upon enriching the general welfare to a significant degree. How are others directly benefited by such interference? State coerCion should not be viewed lightly, and any addition

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72 to it should be significantly beneficial to the general welfare of others. The term "enhanced" is used, for it emphasizes that the erasing of behavior that is merely inconvenient or somewhat costly is not necessarily wise. Positive benefits for others should be measurable and definite, if we are to seriously consider such legis-lation. ,The third principle to consider is state authority. To what degree does the interference expand the authority of the state and is this authority already too great? Is the interference a proper, legitimate, and wise expression of the power of the State? This is essential to consider, for in helmet legislation we I have already concluded that the state has a legitimate i I right to consider interference, but would be unwise to I interfere. I Beyond these three general principles, other questions should be asked as well. First, we must closely examine the primary intent of the legislation. Is it to reduce the social costs to the public? If so, is mandating self-protection the best means of doing so? Second, before we such Legislation, great care and effort should be put forth in deter-mining the actual costs to others, resulting fiom the individual behavior. Since little individual behavior

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" I I 73 is purely self-regarding, we must address the complex issue of individual liberty vs. public interests, on a case by case basis, with the aid of utilizing these principles and concerns. Having established these principles and guide-lines, we may apply them to mandatory helmet-usage legislation, in order to provide an example of their value. What liberty is being restricted with the imple-mentation of such legislation? The liberty of diversity. This is the freedom to be different; to choose one's own path; to, in essence, have the liberty to be foolish and unwise. To what degree is the general welfare enhanced by such legislation? The lives of productive citizens are saved, and the drain upon the public treasury is reduced. These benefits are not easily calculable, for in the former, many of the rewards are intangible ones assigned to family and friends. The latter, as noted in Chpater III, are difficult to measure, or at least"have not heretofore been calculated. To what degree is the authority of the State expanded? This is most certainly a judgment call, but there can be little doubt that this type of legislation is becoming more common, as can be witnessed by the increase of mandatory seat-belt laws.

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I I I I I I I I :1 I 74 What is the primary intent of the mandatory helmet-usage legislation? We have concluded the primary intent is of the motorcyclists. If the primary intent was to reduce the impact upon the public treasury, then this legislation is not the best means of achieving the goal. It would be more desirable and effective to require sufficient insurance for all motor-cyclists to cover all the medical costs incurred by the State. This would make the privilege of riding a motorcycle more expensive, and would discriminate against those riders with meager incomes. Still, it is a superior al ternative, for it places the cost upon the particular motorcyclist, rather than upon the public treasury. This additional cost to the rider is quite comparable with similar expenses incurred by hunters, boaters, and other recreational participants. Finally, as noted in Chapter III, the actual cost to the State is undetermined. Therefore it is difficul t to judge whether the costs are substantial enough to justify interference, on social costs alone. Hill has presented us with a reasonably defini-tive model for analyzing paternalistic legislation. He developed a convincing argument on the value of liberty in a good society. Yet, there remains an important contradiction, indeed the primary weakness,

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I 1 I 1 I in Mill's essay that needs to be addressed. Mill had three assumptions upon which his principle of liberty was based. The first is liberty, which Mill placed great value upon. The second is social utility. The 75 thrust of On Liberty, in fact, lies in Mill's contention that liberty has greater social utility than does State authority. Third, Mill, while never being in the orthodox camp, basically supported the market economy. Therein lies the basic contradiction. The contradictions and forces inherent in' capitalism are often at odds with both social utility and individual liberty. Capitalism, by allowing the excesses of certain individuals, create' s conditions under which excessive governmental intrusion and regu10 lation become necessary. For example, much of the growth of government, be it' at the local, state, or federal level, has been in the areas of providing certain basic goods and services for those who are not 11 benefiting from the system. Likewise, the growth of regulatory agencies serves as another example of how the forces of capital-12 ism create the necessity for regulating its excesses. While it is not exclusive to capitalism to create a powerful government, certainly the growth of State 13 power has corresponded with the growth of the Market.

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I Mill placed his admirable principal of liberty within an economic system which is internally at odds with the very liberty he promoted. Certainly, there is a wealth of evidence to support the argument that the Harket t 't l'b t f of ;ts c;t;zens.14 res s er y or many .There 76 are countless examples of sexism, racism, and imperialism th h t th h t f 't l' 15 roug ou e ory 0 a In general, the market mechanism restricts the life options of the losers in the economic, social, and political war of all against all. I do not assert that these forces are unique to capitalism; rather, they seem to be integral characteristics of it, and in order to achieve the degree 6f liberty Mill sought, we need to recognize the inherent conflicts within the Market, and develop a society more conducive to equal liberties for all. The purpose of this thesis, however, is an analysis of paternalistic legislation, not a radical analysis of Mill's principle. One may ask, what does the Market have to do with this type of legis1ation? What is the connection between paternalistic legislation and the Market? Paternalistic legislation is often the consequence of the excessive regulatory government that has resulted from the development of capitalism. As Mill warned, the State is an accumulative institution, and as it reaches

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77 into our lives to provide basic human needs and services for those disadvantaged by the Market, it increasingly feels comfortable to go further and protect its citizens, not just from the greed and excesses of others, but from their own foolishness as well. Perhaps more ominously; theextensive government feels free to go further to protect and extend its own powers. I Second, the market has made the citizens and I political leaders highly sensitive to social costs and government spending, particularly since the federal .deficit is so high. Therefore, paternalism is often justifiedas a way to cut governmental spending, and to have us focus on minimal matters, when more fundamental issues need to be addressed. The amount of money saved by mandating motorcyclists to wear helmets is a mere fraction of what we might save, if, for instance, we explored the savings of conserving our natural resources or reducing our military expenditures. Yet, it is easier for politicians to require motorcyclists to wear a helmet, than:to stop the exploitation of our land or the growth of the military-industrial complex. Like-wise, it seems easier for the political leaders to mandate the mandatory use of seatbelts, rather than mandate.passive restraint systems, such as the air. bag, which would place the burden upon the manufacturer.

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_ I 78 In a final analysis, what might we do to utilize the strengths of Mill's principle, while avoiding the weaknesses of his argument? First, we can do more within our existing conditions to achieve more liberty. Mill gave a strong argument in favor of the freedom of h h d .. 16 t oug t an oplnl0n. Not only would this be benefi-cial throughout all aspects of our society, but educa-tion programs and information distribution could be better utilized instead of paternalistic If we do not wish for citizens to act foolishly, it is better, whenever possible, to change their behavior through education, rather than coercion. Rather than legislating individual behavior, it would be more desirable to mandate the safety of products, and place the responsibility upon the manu-facturer, rather than the consumer. Obviously, there will be a limit to the effectiveness and reasonableness of doing so, for certain products, like the automobile, inherently contain the risk of death or injury. Still, in matters such as seat belts or air bags, it would be better to address the issue of safety at the point of manufacture, rather than consumption. Why? To mandate safe products is not restricting the liberty of indi-viduals to act wisely, or unwisely. It is requiring the manufacturer to sell a safe product. As

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with any such additional expense, it either reduces profits if the market is competitive or is passed on to the consumer if the market is oligopolistic. Upon occasion, these additional costs to producers or consumers may be prohibitive. I find no certain means of escaping this dilemma, but nevertheless, maintain it is preferable to paternalistic legislation. (More vigorous regulation against oligopoly would shift the added cost to the rich rather than the poor or middle income consumers.) 79 The education of the citizens about the true nature of the deficit, and its main culprits, would also be helpful in slowing the trend towards paternalism. If the citizens were better informed about far more substantial means of cutting government spending, making motorcyclists wear helmets, they would likely be more tolerant of others' behavior, no matter how foolish it might be. Along with this more clearsighted approach to cutting spending, I would add the need to be constantly vigilant against the "social rights" proponerits. We must not allow social costs to. be used as automatic justification for restricting behavior and mandating self-protection. There are fundamental changes which must be implemented, in order to promote the liberty Mill

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80 persuasively argued for. Individual liberty will always be at odds, on occasion, with the general welfare and the society. To argue that once capitalism is discarded for some other system, these conflicts will disappear, would be quite foolish. Yet, it does seem,feasible to a society based upon cooperation and altruistic characteristics, rather than capitalism, which promotes selfishness and competition. The areas and points of conflict between individual liberty and the general welfare would be substantially fewer than in our present system. Enough time, over 130 years, has passed since Mill asserted the benefits to society by the !-1arket 17 outweighed the disadvantages. It .is certainly arguable that not only does everyone not benefit from the market, in terms of' liberty, but the degrees of liberty by those who do derive benefits, are 18 substantially unequal. Thus, we must take the wisdom of Mill's princi-ple, complete with the two-sphere model, and place it within a society more conducive to liberty and the common good. A society based upon cooperation and tolerance would be an example of such a society. Such a society would be more hesitant to restrict individual behavior, or mandate self-protection, because it would have less need to do so. It is not unique to capitalist

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societies to mandate self-protection, but there 'are inherent, entropic forces within them which promote such legislation, and to get the wisdom and benefit from Mill's principle, it is necessary to go beyond his own flawed foundation. 81

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NOTES--CHAPTER IV IJohn Stuart Mill, Utilitarianism, On Liberty, and Considerations on Representative Government, ed. H. B. Action (New York: E. P. Dutton and Co., 1972), p. 73. 2Ibid., p. 138. Mill stated: "But with regard to the merely contingent, or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom." 3Ibid. pp. 164-65. 5Ibid., p. 73. Mill stated: "In the part which merely concerns himself, his independence is, of right, absolute. Over. himself, over his own body and mind, the individual is sovereign. 82 "That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right." 6Ibid., p. 125. Mill stated: "There is no reason that all human existence should be constructed on some one or some small number of patterns. If a person possesses any tolerable amount of common sense and experience, his own mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode."

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7BUdget of the United States Government Fiscal Year 1986, Executive Office of the President: Office of Management and Budget, p. 5-68 and p.8-91. 83 8Mill, Utilitarianism, On Liberty, and Considerationson Representative Government, pp. 120-21. 9For example, in 1977 the legislative hearings in Colorado to consider repeal of the mandatory helmetusage law, contained expert witnesses testifying that the costs to the public treasury were "substantial." One witness quoted the social cost of each fatality to be $225,000. Senator Ralph Cole, agreeing with this line of opposition to the repeal, stated that the public has a stake because it picks up the Yet, other senators supported repealing the law on the grounds. that, "there is no way you can legislate safety in every facet of a person's livelihood. Responsibility is going to have to start somewhere." While no specific reasons were given by each legislator on the primary motivation behind his or her vote, it can be assumed, at the very least, that the social costs were not "substantial" enough to justify continuing the legislation. The law was repealed during the 1977 legislative session. 10For examples: Theodore J. Lowi, The End of Liberalism (New York: Norton,.1969); Francis E. Rourke, Bureaucracy, Politics, and Public Policy, 2nd ed. (Boston: Little, Brown, 1978). 11 For examples: Edward S. Greenberg, Understanding Modern Government: The Rise and Decline of the American Political Economy (New York: Wiley, 1979); Michael Best and William Connolly, The Politicized Economy (Lexington, Mass.: D. C. Heath, 1976). 12 Barry Commoner, The Closing Circle. (New York: Alfred Knopf, 1971). 13 For examples: William G. Domhoff, The Higher Circles: The Governing Class in America (New York: Vintage, 1970); Ralph Milibrand, The State in Capitalist Society (New York: Basic Books, 1969). 14For examples: Robert Blauner, Alienation and Freedom (Chicago: University of Chicago Press, 1964);

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Walter Weisskopf, Alienation and Economics (New York: Dutton, 1971). l5For examples: Zillah Eisenstein, ed., Capitalist Patriarchy and the Case for Socialist Feminism (New York: Monthly Review, 1978); Sheila Rowbotham, Women, Resistance and Revolution (New York: Pantheon, 1972); James Boggs and Grace Boggs, eds., Racism and the Struggle (New York: Monthly Review, 1970); Robert Dirsch and Barry Schwartz, White Racism: Its History, Pattern, and Practice (New York: Dell, 1970); Richard Barnet and Ronald Muller, Global Reach: The Power of Multinational Corporations (New York: Simon & Schuster, 1974); Noam Chomsky and Edward S. Herman, The Washington Connection and Third World Fascism (Boston: South End Press, 1979). 84 l6Mill, Utilitarianism, On Liberty, and Considerations on Representative Government, pp. 78-114. l7Ibid., p. 150. Mill stated: "Again, trade is a social act But it is now recognised, though not till after a long struggle, that both the cheapness and the good "quality of commodities are most effectually provided for by leaving the producers and sellers perfectly free, under the sole check of equal freedom to the buyers for supplying themselves elsewhere. This is the so-called doctrineof Free Trade, which rests on grounds different from, though equally solid with, the principle of individual liberty asserted in the Essay. Restrictions on trade, or on production for purposes of trade, are indeed restraints; and all restraint, qua restraint, is an evil; but the restraints in question affect only that part of conduct which society is competent to restrain,and are wrong solely because they do not really produce the results which it is desired to produce by them. As the principle of individual liberty is not involved in the doctrine of Free Trade, so neither is it in most of the questions Which arise respecting the limits of that doctrine." l8For examples: Samuel Bowles and Herbert Gintis, Schooling in Capitalist America (New York: Harper & Row, 1976); Gabriel Kolko, Wealth and Power in America (New York: Praeger, 1962).

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