So, what is the common-law justification for the driving ban that Governor Patrick instituted in Mas

[xiphias]

As we know, in response to the most recent blizzard over the weekend, Massachusetts Governor Deval Patrick declared a state of emergency and instituted a travel ban for anyone other than emergency vehicles, snow removal vehicles, and taxis, from 4 PM Friday, just before the storm really hit, until 4 PM Saturday, after the storm was over. As a result, the number of people and vehicles stranded in the snow in Massachusetts is statistically insignificant, and the roads in many communities were almost completely cleared before the Monday commute.

In other words, it worked. A blizzard can be considered a "natural disaster", and, here in Massachusetts, where the storm was centered, it was mostly an inconvenience for most people. Oh, it caused problems -- some of my friends missed the JoCo cruise they'd been looking forward to all year. And many people are still without power. More seriously, a few people died from carbon monoxide poisoning, running their generators inside, and I'm sure there will be a few more from blocked tailpipes in cars. But still. For an historic blizzard, the amount of disruption we have experienced as a Commonwealth is minimal.

We had a lot of advantages here: good weather forecasting let us know of the possibility five days before it happened, and that it was likely three days out. So everyone had a chance to make plans to deal with it. But the importance of Gov. Patrick's travel ban can't be overstated. It worked; it saved a lot of trouble, and probably a decent number of lives, too.

But a lot of libertarians feel that it was a restriction of liberty. Which, of course, it was -- but of a type and level which civilizations have generally felt is reasonable. So I've been pondering just where in the social contract this sort of thing falls.

My feeling is that Gov. Patrick's travel ban lives in the same neighborhood as militias do.

The idea of the "militia" is that the able-bodied citizens of a society may be mobilized, as a group, to help during times of emergency. Part of the social contract is that we, as citizens, agree that we will help our community when we are called upon to do so. Naturally, like all interactions, this is subject to negotiation -- we can (and should) argue about how often the citizenry can be called up, and for how long, and for what level of service.

But, the way I see it, in this case, Gov. Patrick called upon the militia to act for 24 hours to do, literally, the absolute minimum he could as us to do: nothing. He said that those of us who are capable of doing so should, as part of our duty to the Commonwealth, sit tight and leave the roads free, so we didn't get in the way of the other people actually doing things.

Our local mayor has called upon us, as citizens of the city of Melrose, to act further, and to shovel out any fire hydrants and storm drains we can reach, and, further, if we have snowblowers, to help clear the walks of any elderly or disabled neighbors. Again, in my mind, this counts as calling out the militia to deal with an emergency -- able-bodied adults are supposed to use their skills and tools in defense and protection of their society. In this case, we're using snowblowers to protect against icy sidewalks, but it's the same principle as using our firearms to protect against invading wolves, Russians, Martians, or whatever.

Comments

[browngirl.livejournal.com]

*takes notes*

This is a very sensible analysis; I haven't gotten past the step of rolling my eyes at the whinging. OMG the Death of Liberty.

[tikva.livejournal.com]

I'm wondering if the 1905 Supreme Court case Jacobson v. Massachusetts might also apply here. Public safety trumping individual rights and all that.

[tober.livejournal.com]

I think that many of the people who are taking umbrage (I'm not quite sure whether to take umbrage or not, so put me in the undecided column here) are doing so not because of the order but because the order claimed to be enforceable by up to 1 year in jail (which might involve a felony conviction?) - this seems possibly heavy-handed. It seems to me an all-civil maximum penalty - perhaps a very expensive one - would have been more appropriate.

[alandd.livejournal.com]

I don't/didn't take umbrage, but I totally agree with the 'threat' being heavy-handed. On the other hand, it worked and as far as I've heard, wasn't tested... When friends have complained about that, I've responded with "Well, I doubt that would have happened... But it probably helped keep a bunch of people off the road."

I feel that most of those ('libertarians', let's say) who would have such a problem with the 'threat', are smart enough to realize that they should stay off the roads in the first place. This may be a vast oversimplification, however.

[cos]

That's just stupidity. A reporter asked what the penalty is for disobeying an executive order, and the answer was that it's punishable by *up to* a $500 fine and a year in jail. Immediately, the Governor added that he had no intention of imposing those penalties. The order itself didn't "claim to be enforceable" by any such thing, it's just pre-existing state law.

[quietann.livejournal.com]

This is such a good way of thinking about it.

Compare our experience to that of Long Island or Connecticut. I will *swear* that the driving ban really helped us avoid a disaster.

[cos]

> But a lot of libertarians feel that it was a restriction of liberty.

Which is shortsighted and narrowminded. To them, "liberty" doesn't actually refer to practical freedom, it refers very simply to "the government doesn't tell me I can't" - whether you actually can or can't do something is irrelevant to them.

What Patrick did was to *increase* liberty. By preventing the roads from being clogged with cars that'd take extra days to clear out, he made it so all the rest of us could use the roads beginning the evening of the day of the storm. By the following morning, everything around where I live was clear, even the little private way off of a side street, where my garage spot is.

Thanks to Governor Patrick for enabling me to have a date Sunday morning/midday, which would not have happened if they were still working to clear the streets. More freedom, not less.

[ckd]

Consider the roads in Libertarichusetts, which are owned by a private organization that makes whatever rules they want to about their use. (If you don't like their rules, use someone else's roads.)

I suspect Libertarichusetts Roads, Inc. would respond to a similar blizzard with "we are closed except to emergency vehicles" and might have added "and the charge for unpermitted travel during this period may be up to $500".

That, of course, would be perfectly acceptable behavior even though in practical terms the only real difference from this situation is the potential year in jail (which, as noted, was never actually threatened).

[xiphias.livejournal.com]

By my definition, I believe that the fact that I can't go and stab my neighbor in the face is a restriction of my liberty. It's a restriction that I happily accept, in return for my neighbor not being able to stab me in the face. I believe that all society is an example of people voluntarily giving up some freedom of action, in return for a system in which they have many more opportunities available. And that once a society has a critical mass of people who voluntarily give up some freedom of actions, we have the ability to compel nonconformists to conform. Which, once again, must be done carefully and judiciously, since a certain amount of nonconformism is necessary for societies to progress.

The fact that you and I were able to move around today absolutely increased our freedom of action and our opportunities. So our TOTAL opportunities increased, but at the expense of giving up SPECIFIC opportunities.

[cakmpls.livejournal.com]

I sure wish LJ had "Like" buttons.

[goljerp]

Did none of the whiners listen to the stories coming out of Long Island, NY where some people were stuck on the expressway for 12 hours before being rescued, and the expressway was only re-opened on Sunday afternoon (or was it later?)

[ashnistrike.livejournal.com]

1) I like this analysis.

2) Why on earth would anyone who objects to a working social contract live in Massachusetts? There are 49 other states where they could go.

3) I miss Massachusetts.

[papersky.livejournal.com]

I hear that a well regulated militia is necessary to the security of a free state, so yeah, that makes sense.

[xiphias.livejournal.com]

Yes, I happen to believe that "A well regulated militia is necessary to the security of a free state" means "All members of a society are responsible for each other in emergencies, and must act together in emergencies for the good of all," more than it means "I get to have whatever guns I want and you can't stop me."

[cakmpls.livejournal.com]

Very well said.

[minerva42]

I actually haven't heard many people complaining, and I was in Canada at the time, so. But I like your words and thoughts and seeing the situation in this light.

[seekingferret.livejournal.com]

Hmm... well, the Massachusetts Minutemen were in fact mobilized to fight against their government, right? It was not the only thing they were mobilized for, obviously, but one of the things the Minutemen were, rather famously, mobilized to do was to resist government orders by fighting against the British army in the colonies.

I do agree with your broadly that the principle of the militia is that able-bodied men can be organized to do what society needs of them, but I am skeptical of the proposition that this empowers centralized government authority to order able-bodied men to do whatever the centralized authority judges is the best use. That notwithstanding, this was not actually an exercise of militia authority, but of state emergency authority, the belief that in times of emergency we actually find our freedoms suspended for the safety of society.

[xiphias.livejournal.com]

Hmm... well, the Massachusetts Minutemen were in fact mobilized to fight against their government, right?

Mmmm, no, I don't think I'd say that. I think they were mobilized by their governments -- plural -- to fight against another force that they stated was no longer their government. Each militia was under local, town-level control. Minutemen units had more extensive training than regular militia units, and had greater inter-unit communication and control than regular militias, but each Minuteman unit was still under the control of their own local commanders, elected from their own unit, and under the general command of the town militia. So the command structure went up to the town level, but with other officers over them who coordinated the forces and had general command over strategic-level decisions.

But the British Regulars and the British Governors weren't part of the Massachusetts Militia government since General Gage's 1774 failure to institute the Intolerable Acts. After that, the militias forced all of their officers to resign, and re-elected officers from within their ranks to make sure there was no British Central Government control of their military.

After that point, they existed as a group of duly-constituted units, under the authority and auspices of their local town governments, and under Sons of Liberty management and coordination.

Well-regulated militias ARE under the commands of their governments. The local head of government has the power to mobilize the militia. In the modern world, in the United States, that power is centralized at the "state" level, although, in earlier times with less advanced long-distance communication, the power resided at the county or town level. Militias aren't voluntary aggregations of citizens: they are organized bodies under the control of their duly-chosen leaders.

[xiphias.livejournal.com]

In any case, I'm not, strictly speaking, claiming that this IS an exercise of the power of the militia, but that it's CLOSE. That the moral justification for this is the same as the moral justification for the calling up of the militia -- that they're both from the same cause, but not that they are necessarily the same thing.