Americans are only now becoming aware that government claims sweeping powers in the case of pandemic disease. An order can be given by the U.S. president. Your house, block, town, or city can be quarantined without notice. You could find yourself trapped. You can be forced into a sick camp. Non-compliance is enforced with criminal penalties.
This might sound alarming to you but many pundits are on board with using such medieval tactics.
Close the borders, quarantine the ships, pen terrified citizens up inside their poisoned cities. For the first time in more than a century, the world has chosen to confront a new and terrifying virus with the iron fist instead of the latex glove. At least for a while, it worked, and it might still serve a purpose.
He frankly favors, in his words, “choosing brutality over freedom.” Many people would no doubt agree.
And yet, human beings have a natural right to self-preservation. They exist for their own enjoyment, not to serve as the pawns of anyone or anything, even during putative crises.
Like the rest of the U.S. Constitution, the Bill of Rights does not explicitly protect the right of individual Americans to breathe the air, drink potable water, expel bodily waste products, or do countless other things necessary to live. That was not a massive oversight on the part of the Founders; it reflected their view that the purpose of government was to protect the natural human rights triad of life, liberty, and property. Any law or policy that endangered the triad was not just unconstitutional but anathema to natural human rights.
While government might limit riparian rights or where individuals may lawfully urinate and defecate (and green taxes on flatulence seem well nigh inevitable), no government committed to the well-being of its citizenry would dare to overburden basic biological functions because to do so would be an obvious repudiation of the government’s prime directive to protect, rather than limit or take, life, liberty, and property.
The Founders envisaged government’s protective role as a limited, not a paternal, one. In particular, government should not dictate how individuals manage any trade-offs within the natural human rights triad. Some may prefer dear life over all else, but others may prefer liberty (e.g., give me liberty or give me death) or property over life (e.g., DNRO), and their preferences may change over time and context.
Government should take available effective steps to prevent people from spreading disease, shooting, or otherwise harming others, but it should not dictate what people must, or can’t, do to protect their own lives.
For example, it might stop an American from entering the U.S. from Wuhan or some other COVID-19 hotspot, but it should not prevent Americans from going to one of those places if they so choose. It can remonstrate, inform, and warn of re-entry restrictions but it should not stop people from making their own choices, even if death is certain, and it certainly shouldn’t restrict liberty when sickness or death remains improbable.
Many government attempts to protect individuals seem impressive at first but ultimately pale compared to individual precautions. Food safety, for example, relies more on individual judgements and private inspection than the public apparatus.
The same goes for drug use. Government should prevent Americans from harming others to the extent possible but it should not limit liberty because some people abuse drugs and end up driving while impaired or robbing a convenience store. The latter are crimes but criminalizing drug use simply because it might increase other crimes is unwarranted and, as we have learned time and again, unwise.
Bearing arms presents a parallel example. Government should prevent gun violence to the extent possible but it should not limit the liberty of all because a few people (and it is a small percentage of gun owners, especially outside of the drug trade context) shoot innocents, even themselves or loved ones.
Some states, like my beloved California and New Jersey, restrict the bearing of arms. But then should it not follow that if defenseless Mary is raped, Gary robbed, and poor Granny killed, the state should be held liable? After all, states with stringent handgun laws are essentially saying, “We don’t trust you to protect yourself, so we will do it for you,” though, all too often, they do not.
Of course states have no resources of their own and could simply raise taxes to pay for their failures. If payments to victims came out of the personal estates of the policymakers who supported gun control legislation, though, legislative paternalism would quickly fade as they would have some proverbial skin in the game. Ditto if policymakers overstep while attempting to stop a pandemic after it has become unstoppable.
Some people may concede the general point but then add, “But surely we do not want people to own cannon or anti-aircraft missiles or nukes, so where do you draw the line?” Incentives reduce such perceived problems. Few individuals who could afford a nuclear bomb would have an incentive to use it and those with sufficient incentive to do so would not be deterred by a law. (Or economic sanctions apparently.)
Moreover, unrestricted ownership of anti-aircraft weapons would have ameliorated, if not outright prevented, the 9-11 attacks because surely some corporation, or a consortium of them (probably led by an insurance company), would have provided effective cover for lower Manhattan and other vulnerable private assets. Knowing that, the terrorists would not have even tried and we could still wear our shoes through airport security lines.
If ending restrictions on the types of weapons citizens can own sounds extreme, recall that for- and non-profit corporations have a long history of owning military-grade ordnance. Private military forces equipped with cannon played pivotal roles in the Revolution and War of 1812 as privateers (legal pirates basically), legionnaires, and private militia “companies.”
But, critics wail, we have “state capacity” now. Do we really, though? I see a horrifically expensive military well-equipped and trained to defeat traditional military foes but incapable of quelling determined resistance forces even if given decades and trillions of dollars to do so. I also see lots of paramilitary police forces that can quell riots but can’t protect momma or pop pop on the street because nobody in the neighborhood trusts police officers to do the right thing.
The modern state is quite “capable” when it comes raising revenue but even there it remains highly inefficient, taxing many things that should not be taxed and doing so in many awkward ways instead of taxing a few items sensibly, as Adam Smith and Alexander Hamilton admonished.
So where some see state capacity, I see mostly incapacity. Government can influence events, but usually only by making matters worse. It seems poised to do so again with its response to COVID-19.
It is high time that Americans stop pretending government can protect everyone, in every possible way, all the time and tell Washington to stop overstepping. Americans are not children and bureaucrats are not parents, not even bad ones; they are people with more power, especially during ostensible public health emergencies, than the Founders intended even POTUS to possess.
So, no, we should not go Medieval on COVID-19. We should still embrace freedom.