Liberty is often viewed as the right to do what we want, free from state interference. The intrusion of stay-at-home orders have quickly been seen as a violation of these rights and an affront to the constitution. Liberty is more complex than this simplistic conception. Recognising this could save lives before and after the pandemic.
As deaths from COVID-19 continue to mount, quarantine fatigue has set in. In the U.S., protesters, some holding signs saying “No Liberty. No Life,” have demanded the end of state stay-at-home orders. Perhaps sharing the sentiment, President Trump has decided not to extend his own social distancing guidelines. In addition, Attorney General William Barr has directed federal prosecutors to “be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.”
The stay-at-home and shutdown orders that many states are now lifting have imposed enormous burdens on individuals, communities and the economy. They have also limited Americans’ liberty to travel, work, and even in some instances, attend religious services. Barr is also right warn that public health laws can be discriminatory and place unreasonable burdens on fundamental rights. As Lindsay Wiley and Stephen Vladeck explain in a forthcoming paper in the Harvard Law Review Forum, public health emergencies do not justify the suspension of constitutional rights.
This view of liberty as the freedom to do what one wants in the absence of government restraint – what Isiah Berlin termed “negative liberty” – constitutes the conventional wisdom in the U.S.
Nevertheless, it is worth unpacking the assumptions about liberty and constitutional rights that underlie both the protests and the Administration’s stance toward the shutdown orders. To Trump, Barr and the protesters, liberty seems to be the ability to get a haircut, go to work, purchase a gun (the President said that the Second Amendment was under “siege”) or worship in church. It is that last liberty that Barr has focused on.
This view of liberty as the freedom to do what one wants in the absence of government restraint – what Isaiah Berlin termed “negative liberty” -- constitutes the conventional wisdom in the U.S. where rugged individualism and free market capitalism remain compelling ideals. Even the U.S. Supreme Court has endorsed this view. In 1989, in holding that the Constitution does not require a state to protect a child from an abusive parent, the Supreme Court exclaimed that the Framers sought “to protect thThis dogma helps explain why there is no “right” to health care in the U.S. Nor is there a constitutional “right” to public health protection, even from deadly contagion. From a constitutional perspective, the services and protections the government offers are gratuities that need to be circumscribed so as not to inappropriately restrain the liberty to be free from government.
Liberty, however, is far more complex than this conventional wisdom allows. In affirming a vaccination mandate in 1905 in Jacobson v. Massachusetts, the United States Supreme Court explained that the Massachusetts Constitution reflected “a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for ‘the common good’ and that government is instituted ‘for the common good, for the protection, safety, prosperity and happiness of the people.’” Governments thus exist not simply to leave people alone, but also to safeguard the common good. Further, the Court stated, “real liberty for all could not exist under the operation of a principle which recognizes the right of each individual to use his own … regardless of the injury that may be done to others.” Rather, “real liberty” exists under restraints “to secure the general comfort, health and prosperity of the State.”
Governments thus exist not simply to leave people alone, but also to safeguard the common good.
This conception of “real liberty” does not mean that negative liberty merits no protection. Jacobson itself commanded courts to strike down public health laws that are unreasonable or are applied in a manner that is oppressive or arbitrary. Today this means that courts must guard against COVID-19-based restrictions that lack a sound basis in public health, that discriminate due to race, ethnicity, religion, political affiliation or speech or that unduly burden fundamental rights. Yet courts must also recognize that by protecting lives, public health laws can help secure the “real” liberty afforded by the absence of plague.
Jacobson’s conception of liberty has deep roots in Anglo-American common law where individual rights were always subject to the constraint of the public good. It is also central to many non-libertarian political theories. Nevertheless, the acceptance that real liberty requires more than the absence of government has diminished along with memories of smallpox, cholera and the epidemics that were common before the twentieth century. Indeed, despite the devastation wrought by the 1918 influenza pandemic and HIV/AIDs, fear of contagion has declined over the decades (until now). As it has, Americans increasingly came to see liberty as demanding the absence of government, or in Ronald Reagan words, that “government is the problem.” Relatedly, many Americans began to view their own health as dependent first upon their own choices, and second upon the increasingly expensive drugs and high tech interventions offered by a health care system that largely reflects the individualist ethos of the market. Even political calls for national insurance premise that health depends upon individual clinical treatment. Bernie Sanders, after all, campaigned for Medicare-for-All, not public health for all.
When the history of the pandemic is written, our one-sided view of liberty and the devaluation of public health that followed from it may well claim a starring role in the neglect that exacerbated the pandemic’s impact in the U.S.
Indeed, in recent decades, critics have lambasted many public health laws as nanny state intrusions on liberty. To avoid that backlash, policymakers have tried to avoid compulsion by providing consumers with information that they can use to protect their own health. Nor have communicable disease laws escaped the liberty critique. Vaccine opponents, for example, have argued that vaccine laws interfere with their freedom to follow their faith or determine their own child’s health care. While courts, citing Jacobson, have rejected almost all of these challenges, many other public health laws have been fallen as violating the free speech rights of individuals and corporations.
Given these trends, it is not surprising that many Americans see shutdown laws as violations of their liberty. What they fail to appreciate, however, is that their choices affect not only their own health, but the health of others. Further, by viewing liberty as the absence of governmental action, they do not ask if the government’s inaction paved the way for longer and more intrusive restrictions on liberty.
Without question, COVID-19 would have caused devastation no matter how we understood liberty or what the government did in the years or weeks before March 2020. Nevertheless, when the history of the pandemic is written, our one-sided view of liberty and the devaluation of public health that followed from it may well claim a starring role in the neglect that exacerbated the pandemic’s impact in the U.S. In the meantime, it seems, we all have the liberty to stay home or die.