Within the unique confines of America’s federalist system, responsibility for managing public health and safety falls largely on the shoulders of the states. States, it is generally understood, enjoy fairly broad police powers that can be used to enact laws designed to protect the welfare of the community. Public health generally falls under this category, meaning public officials at state and local levels have authority to enact policies like establishing curfews and forcing bars and restaurants to shutter dining rooms. In an 1893 ruling, the Supreme Court clarified that the police powers covered action some might deem unconstitutional because of the strictures they placed on property and people were allowable so long as they promoted “the interests of the public generally, as distinguished from those of a particular class, require such interference, and second, that the means are reasonably necessary for the accomplishment of the purpose.”
In terms of the coronavirus, this means that, legally speaking, limitations on public gatherings do not violate citizens’ First Amendment right to freely assemble nor do orders to close businesses violate the Fifth Amendment’s takings clause (the guarantee that life, liberty and property cannot be taken without due process and that private property cannot be taken for public use without compensation.) But, philosophically speaking, whether states are justified in placing strictures upon the free movement of people is an entirely different matter.
In a free society, citizens make their own determinations about the risk assumed by moving around in the world. The individual has the right to be master of his own affairs. Within the bounds of his property, he wields supreme power. But once he steps foot off his property, that power is abrogated slightly. On property held by others, his will is subservient. In interaction with other individuals, he must broker terms amenable both to himself and the parties with whom he seeks to trade. Sovereignty is not limited in the public sphere, but the ways in which it manifests itself is changed slightly.
The individual must accept a certain loss of control, not over himself but over his environment. This is the social cost implicit in daily living: when a person moves about the world, they assume a certain amount of risk: colds are caught; accidents occur. This risk exists even in times of communal placidity and harmony.
Yet, government takes a reactive rather than a proactive role in adjudicating any disputes that arise from the risks associated with daily living: it is after one person has in someway violated the sovereignty over another that law enforcement becomes involved. Legal accountability is demanded for a specific action that transgresses a specific right in a specific and definitive way. A conviction in a court of law is not the state’s general statement of blanket condemnation upon one person’s entire being.
Why then, in times of crisis, does government gain the right to proactively transgress citizens’ ability to do things like move and associate freely, particularly when the public health justification it invokes as a defense of apply a blanket abrogation over these rights, is merely a suspicion? A majority of the mandated closures, citizens are told, is a preventative measure: designed to protect harm to demographics particularly susceptible to the coronavirus and to try and make sure the capacity of medical facilities is not overrun by a surge in infections.
On the surface, both of these arguments seem perfectly valid and as if the calls for social distancing, enforced by mandated closures and restrictions on public gatherings, are a perfectly valid application of states’ police powers.
But why, as in other cases, is the burden of responsibility for welfare not upon individuals? In times of peace, responsibility for oneself is assumed: this is why a failure, even a failure not borne of maliciousness but of a lack of oversight, ultimately reflects on the individual guilty of a transgression. Ultimately, the social contract is inescapable: there’s an implicit understanding, whether one is in private or public, that one is responsible for one’s own actions, that being a person in society opens oneself to the risks associated with other’s failure to understand this fact, and that even when others defer on their responsibilities, they cannot defer the costs associated with that default.
Government should not have the right to restrict people’s movements, particularly when it is only suspicious someone may be a carrier of an illness. This standard effectively spits in the face of the concept that stands as the foundation of rights-oriented government: an individual ought to be free from the interference of government unless there is some demonstrable proof that he or she has done wrong in some way.
Individuals should be allowed to make their own determinations about how to adapt to a crisis. They should also bear the consequences of their actions: this means understanding that choosing to engage socially in the midst of an outbreak also means staying away from those who don’t also want to assume the risk. By failing to restrain itself and to act as a nanny to citizens, preemptively restricting their behavior, government shows both a lack of respect for the basic rights of its citizens and a lack of trust in their ability to make informed decisions.
Concern for the public health should not include the ability to contradict the opinions of the individual members who constitute the broader public: if an individual feels that defying medical advice on social distancing is worth the risk, then government should not be able to gainsay that decision. The good of the whole cannot be served at the expense of any of its parts: the public welfare is not served if actions taken towards this end harm, in any way, any of the constituent parts of the body politic.
Unilaterally forcing people into quarantine by instituting curfews, placing caps on public gatherings and shuttering businesses is an end-run around sovereignty: it is an attempt to force people’s patterns of behavior without being willing to commit to bold action that accomplishes this end definitively. But, because government has a monopoly on power, there’s no one to hold government to account for its actions.
Ideals only matter in the most extreme cases: they are not tested in times of peace and domestic tranquility. They are tested when normal conditions are disrupted and people, responding to the ingrained instincts of natural law, begin to fear that threats to their existence lay hidden in the unknown.
For limited government, and America in particular, this is a bellwether moment: it is not often that the foundations of social fabric are tested at federal and local levels by a peaceful domestic crisis. How the government responds now indicates its real commitment to liberty: does it really believe, as its democratic-republican ideals signal, in personal sovereignty and self-governance? Or, when push comes to shove, does government think people are incapable of managing themselves and need to be directed, like so many sheep?
At the moment, the collective consensus that an abundance of caution best serves the long-term public welfare, despite the harm it does in the short-term, forecasts an outcome that is not positive for lovers of liberty.
But there is a silver lining. At the same time political leaders are holding daily press conferences filled with pandemic doom and gloom, in a strange, disconnected parallel world within localities, private society seems to be handling itself just fine. State governors are attempting to get out of the way of private actors best poised to lessen the crisis. Local markets are adapting: grocery stores are offering special hours for the elderly so they can shop in an environment in which they can be less fearful of catching the virus; businesses are finding unique ways to market their goods to consumers whose access has been restricted and people are looking for ways to help those whose businesses are most threatened by government-enforced self-quarantine.
All of which suggests that people can manage themselves responsibly and balance their desires and the interests of others if only government will step back and let them.