My Word's Worth: an occasional column by Marylaine Block

vol. 5, #42, August 22, 2000

WHOSE WEEDS

I have this vine taking over my yard, winding itself around my flowers, strangling my trees and bushes. Wherever I see it, I tear it up at the roots, but it keeps coming back. Recently, while waiting for a bus, I saw the same vine growing and automatically started pulling it out, until I realized those vines were somebody else's weeds, possibly, the weeds of somebody who doesn't think they ARE weeds, maybe even likes them. And if they take pleasure in what I call weeds, what business do I have interfering?

This is, of course, a metaphor for the question, where do we draw the line between helpfulness and meddling? When are someone else's weeds enough of a problem, to enough people, that we ask government to step in?

It's an especially hard line to draw in America where we have two, equally strong historic impulses toward community and individualism. "There oughtta be a law" is eternally at odds with "leave me the hell alone," because every law restricts our freedom in some way, however marginally, demanding that we do something, or refrain from doing something, or at least pay for its enforcement.

Perhaps that's why we, the least-taxed citizens of any modern democracy, are so resentful of taxes that we starve basic public services of the funds to provide them. Only when the forest fires come, and the gas pipelines explode, do we discover that we didn't pay for enough firefighters or pipeline inspectors. We spend money willingly to build new roads and bridges, but next to nothing to maintain them and keep them safe.

Many of our laws impinge on some people's freedom in order to protect everyone's health. Our housing and fire codes limit the rights of builders and building owners, in order to save lives and protect buyers and renters who assume that of course the roof will not come off and the furnace will not explode. We pay inspectors and prosecutors to enforce those codes. Often, we don't even know those laws exist until a Hurricane Andrew destroys the houses that didn't meet code and leaves the others intact.

We demand that meatpackers and restaurant owners meet sanitation standards to protect us from contaminated food; bacteria are everybody's weeds. We require children to be vaccinated against infectious diseases, even though a few will suffer side-effects, in order to protect all of us from epidemics (a very real threat to my generation, that was saved by polio shots). Clean air and water laws raise costs for business and communities but prevent widespread disease. In fact, these basic public health measures are almost entirely responsible for increasing American life expectancy from 45 years to 78 years over the past century.

In the case of AIDS, though, the primary transmission agent was not air or water, but behavior. Government could either intervene to control the epidemic and save people's lives, or try to control very private sexual choices. Yes, it would also fund medical research as a long-term solution. But in the short run, it chose to do something very unpopular -- close down San Francisco's bath-houses, a chief venue for the spread of AIDS. Were they right to interfere to protect adults from the risks of their own decisions?

Smoking is another question of "whose weeds?" Is it private choice, or public health hazard? Certainly many smokers are rude, not even bothering to ask if we mind before they blow smoke in our faces. They foul the air, and their smoke leaves a permanent stench in drapes and carpets. But the case that smokers annoy those around them is far stronger than the scientific case that their secondhand smoke is dangerous, so, do we really have to drive smokers out of bars and restaurants? I can't help but wonder if there isn't another way to solve this problem in which the majority deprives the minority of something they love. Instead of outlawing smoking in bars and restaurants, couldn't we at least have "smoking bars", in which everyone admitted, including servers and cooks, smokes, so that they annoy only themselves?

The case for government protecting motorcyclists and drivers from themselves with helmet and seatbelt laws is equally fragile. Of course drivers with children should be required to protect them with restraints and helmets, since kids aren't old enough to make rational choices, but should we regulate adult choices? Yes, it's a public good if fewer people die in accidents. Yes, accidental injuries of the unprotected are greater and more costly, raising our taxes and insurance costs. But should law be our first choice of solution, before trying other mechanisms like insurance rates and education? When motorcyclists get driving permits, could we ask them if they'd like to sign organ donor cards?

We need government to act in our behalf when our lives are at risk and we have no power. When our health insurance is provided by for-profit companies who wish to maximize profits, and paid for by employers who want to minimize costs, all the incentives are for less health care. When industries dump raw sewage into streams and rivers, and spew pollutants into the air that causes acid rain and dead lakes hundreds of miles away, those weeds are everybody's, and only the federal government is powerful enough to pull them up by the roots.

If we fear that power, it's because so often it is wielded heavy-handedly. In Almost Home, David Kirp tells about neighborhood community mediation programs where trained volunteers help people resolve their conflicts peacefully. These programs worked so well that several state governments required cities to set up mediation boards. The up side of this is that the arbitration program was funded and integrated with the legal system. The down side was that the states required arbitrators to be licensed professionals instead of volunteers. Community control, and the trust generated by the fact that people knew their mediators, vanished. As Kirp says, "This approach to mediation is all too consistent with a conception of politics that treats ordinary citizens as moral couch potatoes, unable to settle anything of consequence on their own."

Too often, legislators tell people in minute detail how to do their business. If they aren't happy with how schools are performing, they require testing to pass to the next grade, testing to graduate from school. Before long, teachers have no time to spend on subject matter, because they have to teach kids how to take tests. Would you like to be a kid in such a school, required by law to be there every day until you're 16? Would you enjoy being a gifted teacher, who loves to coax ideas out of children's minds, in a classroom focused solely on passing tests? Can even an English teacher be happy with a state law like Florida's, that requires all college students to have written at least 24,000 words by their junior year?

Laws also have a way of running into each other. We are guaranteed the right to choose our associates, but not to illegally discriminate by race, gender, or religion. Were the Boy Scouts entitled to get rid of a scoutmaster once they learned he was gay? It doesn't seem fair that somebody should be punished not for any actions but for his status-- there wasn't a hint that he'd behaved inappropriately with the boys in his charge. But whose weeds are these? Do the Boy Scouts have a right to say, "This is against our beliefs?" And if so, does a governmental body like the Navy have the same right? Are men's clubs private groups with a right to choose their members, or semi-public places in which deals are made and power is passed on, in which case, women should have access?

These are questions that require delicate balancing, but law is a sledgehammer. Brought into a dispute before other avenues have been tried, it's the ultimate trump card, the rawest use of power. It's also not good at making fine distinctions. In fact, lately we've been creating laws that guarantee no fine distinctions will be made. Fed up with dangerous criminals getting back on the streets because fuzzy-headed judges reduced their sentences, we have enacted mandatory minimums and three-strikes laws, and if that means that a kid in Texas caught with marijuana serves more time than a convicted rapist, or a guy who steals a pizza goes to prison for life, so be it. Zero-tolerance rules in schools have led to stupidities like a girl sent home for offering a friend a Midol tablet. When questioned about their decisions, the prosecutors and principals say they can't make exceptions without being accused of unfairness. The law, in short, requires us to be stupid, and individual people must suffer the consequences.

If our laws don't always make sense, it may be because we don't start with a systematic view of what we want our laws to do, and how much we're willing to intrude on private rights to achieve public good. Instead we just pass a law whenever we notice a problem. Not since the Federalist Papers have we had a public discussion about what problems government should solve, and what problems we should take care of ourselves. Such an over-arching concept would allow us to set priorities, decide which things government MUST do and do well, and fund them accordingly. In the absence of such a concept, we tinker, solving a problem here, a problem there, and end up with a patchwork quilt of laws that doesn't please anybody, that in one way or another interferes with everybody. Is it any wonder that our solution is to underfund everything, important programs and insignificant ones alike?

I've always worried about a Constitutional convention, afraid that things I cherish, like the first amendment, wouldn't survive. But it may be the only way we'll ever get to hold that public conversation about government, because after listening to the speeches at the political conventions, and reading the platforms, I know that our political parties aren't asking these questions. Somehow we need to talk about our problems and decide whose weeds they are, and who has the responsibility for pulling them out by the roots.

NOTE: My thinking is always a work in progress. You could mentally insert all my columns in between these two sentences: "This is something I've been thinking about," and "Does this make any sense to you?" I welcome your thoughts. Please send your comments about these columns to: marylaine at netexpress.net. Since I've written a lot of these, some of them many years ago, help me out by telling me which column you're referring to.

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