Opening up state economies is proving to be more problematic and politically charged than shutting them down and staying in place. This fact has fostered a lively debate over the role of government-directed public health in a democracy.
There are those who are now calling for opening up the economy at any cost. These protesters will be a political force until a vaccine finally eradicates the virus. There are bound to be recurring hot spots and new breakouts of disease that will compel policy makers to revert to staying at home. Each time this happens, angry armchair libertarians will cherry pick quotes from the Bill of Rights and call for citizens to rise up and take back their foundational freedoms.
It is wrong to frame this debate in terms of freedom versus tyranny or right to work versus right to stay healthy. In our constitutional republic, we elect officials to represent us as decision makers. These officials are faced with the most difficult and important decisions of their careers. They must listen to expert advice on complex scientific, economic and social challenges and make commitments to resolve the problem.
On the extreme libertarian side of the debate, populist government by public whim, in the midst of a crisis, is a dangerous fantasy. The recent writings and speech of some partisan Republicans, standing on individual liberties to the exclusion of all else, remind me of the pamphleteers supporting the Committee on Public Safety during the later stages of the French Revolution. In my example the populists prevailed and the Reign of Terror saw democracy crumble as the revolution devoured itself under the guillotine.
Unlike the French experiment, the remarkable and elastic principles of American democracy were formulated to curtail both totalitarian and populist influences. Madison and the Federalist state builders generated a great deal of dissent in transitioning American society from the Articles of Confederation to the Constitution. Several states refused to ratify the new document without a Bill of Rights. The Federalists finally agreed to include these individual freedoms to “conciliate the minds of the people” even though Hamilton considered the Bill of Rights “an excess of liberty.”
In return for their compromise the Federalists achieved what they wanted, a central state with the power to tax, raise an army, print money and set trade policy. However, the American experiment would still not have succeeded without a “nation of joiners” in which our citizens demanded that they be involved in shaping the power of the central government as circumstances changed over time.
Today the central government is much stronger in terms of conflict resolution, regulation, a social safety net, provision of public services and, as we have witnessed in recent months, public health. The concept of individual freedoms is also stronger, as constitutional law on liberty has evolved along with the increase in central power.
The recent political treatise, “The Narrow Corridor, States, Society and the Fate of Liberty,” by Daron Acemoglu and James A. Robinson, is instructive on this issue. The book’s premise, after examining political systems throughout history, is that democracy is a delicate and fragile outcome. It requires both a strong state and individual liberty in a strong society. It can only endure when the two remain in perfect balance, on either side of the narrow corridor that exists between them. The default political condition when the narrow corridor is breached becomes either despotism if the central state wins out or anarchy if the state is defeated.
The ongoing tension between the government and the individual has known no greater conflict than in the field of public health. Increased knowledge of how to prevent infectious disease brought with it the question of when to restrict human behavior to prevent harm to individuals and others.
A Massachusetts smallpox epidemic in 1901 gave us legal precedent on the question of the state’s compulsory vaccination law. The U.S. Supreme Court in the case of Jacobson v. Commonwealth of Massachusetts established the government’s right to use its “police powers” in order to control epidemic disease. The court affirmed the right of the people through their elected representatives to enact “health laws of every description to protect the common good.”
Since this important legal decision 100 years ago, the individual liberty versus public health debate has taken two paths. The government wins on issues that present grave societal threats such as infectious disease. Individual liberty wins out on less serious paternalistic measures that inhibit personal freedom such as tobacco use and the regulation of motorcycle helmets.
In the final analysis, the view that public health policy during this crisis is a threat to individual freedoms guaranteed by the Bill of Rights is a false premise. Most Americans agree that public health is the road map and not the enemy of getting people back to work.
Look behind the curtain of the angry protesters and you will find a Trump MAGA hat with a political ax to grind, an anti-vaccination group looking for a platform, or a shut-in watching too much Fox News.
Gary Stout is a Washington attorney.