Consent, Parental Power and Childhood Vaccination


            Among the world’s mysteries is the transformation of naked power into authority. Yes, from time immemorial, there have been those with the means to impose their will on others. But we say, or at least we used to say, that when the state acts, its agents possess not mere power, but authority to act. Max Weber once defined the state in terms of its monopoly over the legitimate use of force.
            How do state’s acquire legitimacy? And, perhaps more pertinent to our time, how do they lose it? I’m puzzled by this, indeed preoccupied by it, so much so that I’ve begun a podcast devoted to the topic: It’s called “Law and Legitimacy.” I hope you will check it out. It’s on Apple podcast, Spotify and other major carriers of podcasts.
            Let’s return to the discussion of John Locke that we began months ago. Few folks read the classics any longer, and John Locke’s Second Treatise, published in the last decade of the seventh century, is one of the foundational texts of our Constitutional republic – you will see him cited in opinions, often in dissent. From Locke, we learn of social contract theory, the notion that government has its origins in consent, the state of nature, and natural law.
            To my mind, it’s now an open question whether any of these ideas are serviceable, and, as I work my way through the Second Treatise, I’ve written about it. Herewith, some comments on chapter six, entitled, “Of Paternal Power.”  Indeed, Locke’s teaching may shed some light on one of the thornier issues of the present moment: Who, ultimately, decides on whether a child should receive a vaccination for infectious disease?
            In Connecticut, lawmakers recently passed legislation that has been signed into law eliminating a religious exemption from the requirement that children be vaccinated in order to attend school in either a public or private setting. That’s not quite the same thing as saying that all parents must have their children vaccinated, but it’s pretty damned close to that: Home-schooling a child is a daunting requirement few parents can accomplish.
            Our office is litigating the issue of whether this public right to an education, of state constitutional dimension in Connecticut, can be abridged by permitting the state to override the religious objections of a parent to vaccination. We expect a tough fight ahead. Somehow, folks are comfortable with claiming that the herd, or, if you like, herd immunity, trumps conscience or claims that the majority may regard as eccentric. This strand of compelled conformity chills me to my core. At the same time substantive due process grants a right to idiosyncratic expressions of sexuality, expressions for centuries regarded as deviant, we now marginalize folks with religious beliefs. I’m free to poke, prod and swallow another, but not to worship as I see fit? Something is askew here.
            Can Locke help?
            Locke acknowledges the obvious: Children aren’t possessed of reason and autonomy sufficient to care for themselves; without reason, they cannot be truly free.  “[W]here there is no law, there is no freedom,” Locke writes.
Freedom comes from reason’s creation of rational laws, and from having the will to follow the requirements of reason. “Children, I confess are not born in this full state of Equality, though they are born to it,” Locke says. Only Adam was “created a perfect Man, his Body and Mind in full possession of their Strength and Reason, and so was capable from the first Instant of his being to provide for his own Support and Preservation, and govern his Actions according to the Dictates of the Law of Reason which God had implanted in him.”
            Thus does theology solve the problem mere anthropology cannot: If it takes a village to raise a child, then who populated the first village? For Locke, the answer is simple: Adam and Eve. It has me wondering whether, at some fundamental conceptual level a theory of government by consent makes logical sense in any cosmology but one founded on a theory of divine creation.
            But I digress …
            If children are incapable of governing themselves according to the requirements of reason, then it makes perfect sense for a parent to substitute their judgment for that of a child, at least until the child reaches an age and state in which they can make their own decisions. The decision to vaccinate a child, then, clearly belongs to the parent.
            But can the state compel a parent to vaccinate?
            Things get tricky here.
            Locke does not postulate a world like Robert Filmer’s, written about in the Patriarcha, in which the patriarchal power is unlimited. Locke dispenses with this theory in the First Treatise of Government, a work little read in our time outside the confines of religious communities.
            Locke suggests that a parent’s power over their children is in some sense limited by a parent’s devotion to a child’s welfare: a parent’s expectation of “respect, reverence, support” is “more or less” proportional to a parent’s “care, cost and kindness” in the education of the child.
            So what happens if a parent neglects a child? Locke seems not to envision a world filled with child welfare workers and foster parents.
            My sense is that Locke’s discussion of parental power says nothing about the vaccination problem. Public health officials can argue that it is, of course, rational to vaccinate. They can assure that laws are passed to require it. A parent neglecting those laws arguably neglects reason itself, and, therefore, relinquishes certain rights over his or her child.
            But yet, that seems a step down the slippery slope of something like absolutism. Surely, Locke did not anticipate or desire that.
            What limits the power of the state once a contract is formed? Do people retain natural rights independent of the sovereign? Locke says there are such rights. Thomas Hobbes, another contractarian, said there were no such rights. Thus, we see the competing claims in the vaccination debate: The public good requires vaccination and no one has the right to resist (Hobbes) versus a sense that the creation of civil society and government was not an end in itself, but a means to ends we are free to determine for ourselves (Locke?).
            How does Locke justify this intuitively right, but conceptually difficult, position? We’ll explore that in his next chapter, chapter seven of the Second Treatise of Government, “Of Political or Civil Society.”

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