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Bust-Up Over Caveat Emptor

Government has no right to interfere in people's free choices.

By Petrarch  |  July 8, 2008

We at Scragged welcome (well, hope for, actually!) responses from readers and have been blessed with generally high-quality comments.  Rare indeed is the foul-mouthed flame who must be deleted or edited.

As the purpose of Scragged is to get people to think, so we welcome all thinkers, especially those that think otherwise than we because they make us think.  In fact, we occasionally spin an article to stimulate response on a subject of public debate; it's a sad day indeed when no fiery replies are forthcoming.

Then there are those wonderfully stimulating occasions when the response is fiery indeed, but from a totally unexpected direction.  Such was the case with "I Wuz Robbed!" in which we discoursed on the frustrations of multi-level marketing and excessive government regulation.

Even though life's forays into the riches of MLMs proved less than fruitful, it is not really the job of government to interfere in private contracts between two consenting parties; the only result when they do is to enrich the lawyers.  To illustrate this point, in a series of references to widely-known exercises in lawyer enrichment appeared the following line:

It's often turned out that the case was bogus from the start: silicone breast-implants are once again available now that the science has proven that they are harmless and that they always were harmless, but that is no consolation to the shareholders and employees of Dow Corning who lost everything when it was driven into bankruptcy by the avalanche of lawsuits.

It was this almost throwaway line, a pebble in the avalanche of expository illustration, that captured the imagination of our Gentle Readers.  A vehement response arose from ladies protesting that, in fact, silicone implants "are not safe and we who got sick from them were robbed."  What's more, "No one has proved breast implants are safe -- they went back on the market on the absence of evidence that they are sufficiently dangerous."

Therein lies an essential truth which Scragged has explored before, but which clearly requires further illustration.

Enemies?  Or Vendors?

In the days of our Founders, the primary role of government was viewed as protecting the citizens from "enemies Foreign and Domestic."  We still view this as the key function of government; any government which can't accomplish at least that much is hardly worthy of the name.

Obviously, a government has to have enough military force to protect its territory from the predation of foreign forces; any land which can't won't be independent for very long.  This is why the current debate over illegal immigration is so heated; although the illegal immigrants are not a military force, they are nevertheless unauthorized invaders, and the fact that our government makes few attempts to control them is gravely worrying.

Government must also be concerned with domestic enemies - that is, criminals.  The past half century saw a time when our cities appeared to be "ungovernable" because crime ran rampant, innocents were prey, and the police appeared ineffectual.

But the problem simply turned out to be bad government, as Guiliani and his emulators demonstrated.  Today, most American cities, while hardly Edenic, are a far cry from the dystopic 1970s.  Local government concentrated on its key job of protecting public safety, and mostly accomplished it.

However, the same half century has seen a worrying trend in American society which has yet to be reversed: that of expecting the government to protect us, not just from enemies, but from everything: misfortunes, acts of God, blind chance, even our own genetic makeup.

A century ago, the thought that a person could win a lawsuit caused by spilling "excessively" hot coffee on themselves would have been met by gales of laughter.  The idea that a business could not fire a drunk, but must tolerate and pay for treatment for his "disease of alcoholism" was nonsense; and the theory that government could (never mind should) outlaw the consumption of legal substances which might be "unhealthy" would have been seen as what it truly is: an infringement on individual freedom.

Businesses do not want to kill their customers.  They do not want to make customers sick or harm them in any way: a dead customer won't buy again!  Yes, people are harmed by bad products, and a conscious fraudster is an enemy with whom government should get involved; but not otherwise.

The principle of law was "Caveat Emptor", which means "Let the buyer beware."  That placed the responsibility squarely where it rightly belongs: on the purchaser.  Do your research, make your own choice; nobody is forcing you to buy this or that.  Or at least, nobody ought to force you.

Freedom to Choose

What business is it of the government's if we choose to eat at McDonald's, smoke tar-filled cigarettes, go without air bags, smoke pot, or drink ourselves into a stupor?

Of course it is government's concern if we get drunk and drive - that's potentially negligent homicide against an innocent victim who deserves government protection.  If companies, such as cigarette companies, are knowingly selling a harmful product and concealing that knowledge, the power of government should be used to bring the truth into the light of day.

In 2008, however, there is not anyone alive with the intelligence to light a cigarette who is not intimately aware of the overwhelming mountain of evidence proving smoking's harm.  Everyone who's ever stood in line at McDonald's and looked around at their fellow-diners can instantly deduce that what's served there might not be the healthiest staple; and the very concept of placing foreign objects inside your body should give anyone pause.

None of these things are forced on anyone.  Nobody is required to light up a cigarette, or take a drink, or eat greasy fries, or get breast implants.  Anyone is free to choose not to do any of those things.  It may be a more or less appealing choice, perhaps, and there are costs associated with either decision.  But it is a choice.

When you come right down to it, the yearning to restrict other people's choices is a pretty good definition of a liberal: someone who believes that you should be prevented from making bad choices and protected from the consequences of bad choices or misfortune.

Smoking is bad for you?  Outlaw it, or make it as inconvenient as possible.  Kids are hurt in car accidents?  Require everyone to purchase expensive and awkward car seats until the kids are all but grown up despite the fact that the expensive seats accomplish nothing.  Some people died after taking a medicine?  Ban it - despite the fact that other people will die without it.  People who don't die because of something don't make as good press, apparently.

The Perilous "Precautionary Principle"

Shouldn't we be absolutely sure something is safe before we try it?  Nonsense!  This noxious "Precautionary Principle" is a death-blow to progress, improvement, and indeed science itself.

Haven't a great many people been killed in fires over the years? Certainly the fabled inventor of fire could never have proven that it was safe - it's not.  But hopefully we all agree that the benefits of fire outweigh its hazards - always have, always will.

There is a first time for everything.  Every new medicine has to have somebody who is the very first person to swallow it.  Every new mode of transportation has to have one intrepid soul who is the very first to strap it on.  Sometimes those people earn their place in history; other times, they expire in agony.  But as long as they know the chance they are taking and choose it voluntarily, what business is it of government to interfere?

Aren't you glad that Ben Franklin performed his famous experiment with lightning, a kite, and a key?  Nobody would dare to try it now, because we know you'd likely be incinerated.  He didn't know that; he tried it; he wasn't; and he learned something that became the foundation of modern technology.  Wasn't that worth it?  Yet what would OSHA say if someone wanted to try a similar test today?

You don't have to be a famous scientist to take chances.  We take our lives in our hands every time we get in a car - but we do it, because the rewards of driving a car outweigh the risks.  This applies to every choice we make - yes, even the decision to get breast implants.

As Rosa Brooks pointed out in Slate, attractive people earn as much as 14% more than ugly people.  Over a lifetime, that mounts up to a lot of money.

So if it's your considered opinion that you, personally, would be much more attractive with larger breasts, what gives the government the right to forbid it?  Your decision does no harm to anyone else.  It should be your sole choice, as long as all the available potential hazards are not concealed, and the facts are made available as best as is known.

Nobody has a crystal ball.  Lead paint was used for centuries before anyone guessed that it was harmful.  At one time, cocaine and morphine were considered great advances in medicine, because they could cure diseases even worse than addiction.  How is it right to hold a company liable for a product which they made and sold in good faith with no particular reason to suspect it might be deadly?

Leave the Lawyers Out


Once a court of law gets involved, truth usually goes out the window.  As our respondents so eloquently demonstrated, there are a great many people today who firmly believe that silicone breast implants are a deadly poison right up there with cyanide and plutonium.

It's their right to believe this.  Nobody should ever, ever force them to have breast implants, and if they want to dissuade their friends and relatives from having the surgery, it's their First Amendment right to make their arguments as eloquently as they are able.

On the other hand, a great many scientific studies have found no link whatsoever between illness and silicone breast implants.  One side is surely right; the other is surely wrong on a statistical basis.

There is nothing in any study that eliminates the possibility of someone, somewhere having a bad reaction to silicone, or to aspirin or peanuts for that matter, due to a really unusual genetic makeup.  Statistics don't matter when you take a drug, what matters to you is how you react to it.

By forbidding people to make their own choices, liberals are actually showing disrespect for them.  Liberals are saying, "You are too stupid to make the right choice; I am smarter than you are, so I will make the right choice for you."  This is the attitude of tyranny, nothing more, nothing less.

That's why Scragged makes no apology for its generally, though not totally, libertarian views.  In any debate between allowing something or not allowing it, the burden of proof must absolutely rest on the side wanting to limit freedom.

Certainly there are many things we can rightly prove to be wrong and justly outlaw: murder, rape, fraud, and theft come immediately to mind.

American legal tradition calls for a criminal to be found guilty "beyond a reasonable doubt."  The same standard should be used for government interference in individual liberties.  Let each man be his own master to the greatest extent possible.  Or are we so far gone that, truly, we'd rather someone else just tell us what to do?