philosophy

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April 23, 2020

FEATURE ARTICLE

Dystopia for the Duration

The Philosophy of the Coronavirus Pandemic, Part 4

by Robert Tracinski

The question of what we ought to do during the pandemic has been partly superseded what we are required to do by the government. I say "partly," because the shutdown orders would be impossible to enforce without a high degree of voluntary cooperation. Yet this raises the question of the proper role of government in a pandemic.

David French provides an overview of the existing legal precedent on this. The upshot is this: The federal government, having been created out of the union of the state governments, has only the specifically enumerated powers given to it in the Constitution. (In theory--in practice, that limitation has been ignored for a long time.) This is why, despite President Trump's pretensions on this issue, he can neither order the states to shut down nor order them to reopen.

The state governments, on the other hand, being the original sources of sovereignty, are not limited to specific, enumerated powers. They have a "police power" that includes--well, anything that they consider to be for the public good. "A governor or state legislature can often act without a specific grant of power. The power to act is presumed, absent a specific limitation." This includes the power to impose quarantines and other public health regulations.

French is looking at this as a lawyer and not as a political philosopher, but from the perspective of political philosophy, this notion of a plenipotentiary "police power" is a barbarous relic left over from absolutist theories of government.

Let's look at this instead from a Lockean/Objectivist perspective, in which the individual is the original source of sovereignty, and the only legitimate power of government at any level is to protect the individual's rights against the threat of physical coercion. From that perspective, what is the basis for government power in a pandemic?

I think this is something that has already been well established by pro-liberty philosophers. To knowingly or negligently subject another person to infection with a deadly pathogen falls under the category of the initiation of physical force--like dumping toxic waste on another person's property.

Take the case of "Typhoid Mary," an asymptomatic carrier of a deadly pathogen. (The theory is that she harbored a reservoir of bacteria in her gall bladder.) She was released from quarantine in 1910, but she repeatedly broke her promise to stop working as a cook and ended up spreading the disease far and wide and killing at least two more people. She was eventually returned to quarantine and spent decades there for the protection of others. This is an unusual case, to be sure--someone who carries a disease for decades and refuses to exercise any precautions. But it is a case that pretty clearly falls under the government's function of protecting individual rights.

The application of this principle is contextual and relates to the point I made at the beginning of this series about "normal life" versus emergencies. For diseases that are less deadly and less contagious, it is not reasonable for government to impose any special measures. That's why those who want to dismiss COVID-19 compare it to the flu, because the flu is a known and familiar disease, one that we have all decided is "normal." So we chalk up the flu as one of the ordinary risks of social interaction, and while we take preventive measures, the burden generally falls on the vulnerable and infirm to sequester themselves.

I've already made clear in earlier installments why COVID-19 is a threat at least an order of magnitude greater than this, and we don't have to rely on uncertain estimates about morality rates. Somebody has put together a helpful set of graphs showing actual COVID-19 deaths versus other ordinary causes of death--flu, car accidents, heart disease--and the results are pretty definitive. This is a threat to human life that is out of the ordinary.

So this is a pretty clear case where the quarantine powers of the government apply, where the government can tell you: if you are infected, you have no right to endanger others. You are required to quarantine yourself until you are no longer contagious.

But COVID-19 presents us with a very difficult twist. If this were a case where we could identify specific individuals who are infected and put them in quarantine for just a few weeks, I don't think anyone would be arguing about it. The problem is that COVID-19 has a large number of asymptomatic carriers, and we don't yet have a good enough testing system to identify them.

This failure is in large part the government's own doing, because overly centralized FDA regulations prevented the development of a coronavirus test back when it could have helped contain the spread of the disease. (It looks like the same thing happened in the UK.) We should note that most governments failed at this. The only real success story I know of is South Korea. Thanks to large-scale testing and contact tracing, which allows them to require quarantine only for those most likely to be infected, South Korea has been able to employ a less extensive system of social distancing.

Mass quarantine is the blunt instrument we're using because our government failed at creating this kind of test-and-trace system. This is what makes the current lockdown seem so ominous and oppressive. Because it is targeted at everyone, not just at specific individuals, it seems like we are all guilty until proven innocent, and because it is being imposed without a short, specific time limit, it may seem less like a temporary stop-gap and more like a permanent way of life.

That's why people are responding as if this is some kind of authoritarian nightmare borrowed from dystopian fiction.

As much as it seems this way, we should note that the dystopia is imposed by the conditions of reality, by the nature of this particular virus, rather than by some kind of political conspiracy.

There does not seem to be any way around some degree of social distancing. Government rules have been less restrictive in some US states and in countries like South Korea and Sweden, but they have still been doing things like banning large gatherings. This makes sense to me given that we have, not just asymptomatic spreaders of COVID-19, but "super-spreaders"--cases where one or a few infected people showing up at a large event have spread the disease to many other people: Mardi Gras in New Orleans, spring break in Florida, a "Police and Pancakes" event in Detroit. It is an act of negligence in a pandemic to gather people together in close proximity.

So for example, South Korea's test-and-trace approach has not spared it from also recommending, and in some cases enforcing, social distancing.

"[T]he government has been gauging whether it should extend a 15-day intensive social distancing policy it implemented on March 21, under which high-risk facilities were urged to close and religious, sports, and entertainment gatherings were banned. But it is 'too early to be at ease,' Health Minister Park Neung-hoo said, citing a recent spike in imported cases and small cluster infections which also prompted the government to cancel the re-opening of schools next week....

"Social distancing played a role in restraining domestic group transmissions by some 70% during the first 11 days compared with the last 11 days before it took effect, Park said."

The main difference is that South Korea used all of these tools early and effectively, so while they had their first recorded case the same day as the United States, they have had far fewer cases and are now winding down to the point where they are finding about 25 new cases per day. That's not deaths, that cases.

This, by the way, is the goal here. Some of the early discussions about "flattening the curve," including my own, implied that it would result in the same number of cases, just spread out over a longer period of time. But South Korea has shown that preventive measures can decrease the spread of the virus to very small levels. This is what has allowed them to avoid more draconian lockdowns and will also make it possible for them to return to normal life much earlier.

As for government-ordered shutdowns, the evidence indicates they have been less important than most people think--less necessary, but also less damaging. An interesting study validates my own anecdotal observations: most of the economic activity that has been shut down for the past month was already shutting down before official government orders.

"Those data show that restaurant reservations had declined precipitously in most states before restaurants were officially closed. On the day before closure orders, the median state had seen reservations fall by a whopping 73 percent. In some states, like Michigan and Georgia, reservations had already fully stopped before restaurants were officially closed. In short, patrons did not need the government to tell them to before they stopped eating out.

"Another measure comes from the nation's aviation system. While international flights have been mostly grounded, thousands of domestic flights remain in the air. Congress even required airlines to maintain a minimum level of service as a precondition for receiving bailout funds from the most recent coronavirus stimulus bill.

"While Americans are still free to fly, however, the number who actually do has collapsed. The TSA has been publishing daily data on the number of travelers it screens--it is now averaging roughly 100,000 a day, down from 2.4 million at the same time last year."

This implies that the government-ordered shutdowns have not actually caused that much additional economic damage--but it also means that they probably haven't saved many additional lives, either.

As is usual with ham-fisted government solutions, shutdown orders have also invited politicians to draw of a lot of arbitrary distinctions between "essential" and "nonessential" jobs, as well as to impose the kind of useless "security theater" we're used to seeing in the airports: restrictions that don't accomplish much except to make a show of doing something. So in Wisconsin, there was a brief ban on "window visits" to nursing homes, before everyone regained their sanity. In Maryland, the governor banned recreational fishing a hobby whose selling points include solitude and not having to go to the grocery store.

The poster child for this kind of overreach is Gretchen Whitmer, the governor of Michigan, who issued a confusing and highly intrusive executive order that required stores to rope off sections containing "nonessential" items, banned travel between households, and banned landscapers from working. The chief complaint is that Whitmer banned activities based on how "essential" or "nonessential" she deemed them to be, rather than on whether they could be conducted safely.

Of course, there are many for whom the opportunity to invoke increased government power is an excuse to do what they've wanted to do all along. I've already linked to an example from the right, Adrian Vermeule's call for "public health" measures that includes government regulation of our moral "health." On the left, there are the usual suspects who insist that all the same powers invoked for the pandemic should also be used to stop global warming.

Then there are the nationalists in the Trump administration, where the pandemic has resulted in a grant of power to White House trade advisor Peter Navarro after President Trump invoked the Defense Production Act. "A longstanding critic of globalized supply chains, Navarro is now the closest thing the country has had to an industrial policy czar since World War II, with the authority and influence to compel companies to shift their production and supply of key products back to the US."

This is on top of the massive stimulus bill, which was produced so quickly that it could not possibly have been written to address the specific needs of this crisis. Instead, it was loaded full of pork, on the premise that if we're throwing money out of helicopters, we might as well be throwing it at politicians' pet causes.

Let's be very specific about the nature of the economic crisis caused by this pandemic. The crisis is that we are forced, for a time, to eat our seed corn--to consume our capital.

Businesses that cannot keep operating at a time when everyone is afraid to leave their homes have to fund their minimum expenses, not from current revenues, but by dipping into their reserves of capital. Individuals who are put out of work as those businesses trim back to the bare minimum (or go bankrupt) have to do the same, depleting their savings to fund their current expenses. If they don't have sufficient savings, they will have to abandon or sell off valuable assets like houses and cars.

If the problem is a widespread need to spend our capital on consumption, rather than investing it to create new production, then the massive stimulus only makes the problem worse, not better. By spending trillions of dollars we don't have, it compels the further spending down of capital and merely spreads it more widely among the population, either through taxation or through inflation that will erode the value of everyone's savings.

This destruction of wealth is not going to end until we end its two underlying causes: the pandemic--and the excuse it creates for excess government regulation and unlimited government spending.

Check out what looks like a good plan for achieving the long-term suppression of COVID-19 until a vaccine is available. It involves a massive ramp-up of testing and the employment of a small army of "contact tracers." The idea is to return to the ordinary approach to epidemics: identify those who are contagious, trace the people they have been in contact with, and quarantine only those who are at risk of spreading the disease. The expense of recruiting and training these contact tracers is estimated at $3.6 billion. That's a tiny fraction of the amount poured out in the recent stimulus bill, but it's the only part that would actually stimulate the economy.

The even better aspect of this plan is that it returns the government to nothing more than its well-established, limited, and temporary quarantine powers and does not requires an open-ended, unlimited "police power" to regulate all human activity.

That's the key issue we should be looking at. Governors' actual use of their "police power" will probably be less important than the spirit in which they invoke it. What we should be looking for are politicians who regard these powers as abnormal and see their goal as getting back to normal--and giving up their power--as soon as possible.

One of the best speeches from a governor is this one from Colorado Governor Jared Polis (hat tip to Ari Armstrong). Polis's theme is, "When will this nightmare be over?," accompanied by the assurance that "none of this is permanent."

"We cannot live without an open and functional economy. People need to be free to engage in commerce, transactions, trade, and work. But we simply cannot function normally while we are living day-to-day with mortal fear of a deadly virus.

"The sheer size of this crisis has forced us to take a series of drastic measures that we would have thought unthinkable, unimaginable just a month ago....

"If there is any way to safely end it sooner, then we will.

"Like many of you, I am beyond furious that we have been forced to shut down large portions of our economy--putting tens of thousands out of a job--because the wealthiest nation on the face of the earth doesn't have the supplies and testing that we need to mount a proper, more targeted response.

"I know that we would all rather be going back to work tomorrow instead of collecting government stimulus checks or unemployment insurance. I know that business owners will have to make even harder decisions this month. I know we all want this to end as soon as possible.

"But if the choice is between a temporary shutdown and a catastrophic loss of life, the choice is clear. These closures and restrictions will be temporary. But when you lose a life, you lose it forever.

"And in fact, the economic consequences will be even more severe and more prolonged if we completely overload our hospitals. The longer this economic paralysis lasts, the fewer jobs there will be to return to, and the more difficult the recovery will be....

"[W]e are using our creativity--our innovative, scrappy, and independent spirit--to obtain more tests so that we can have widespread testing and containment like Korea and Taiwan, who have been able to successfully return to a level of normalcy by testing, quarantining, and isolating individuals instead of quarantining an entire society....

"The better job we do of staying in, the sooner we will be able to go back out. I know this isn't easy, but if we all do our part, we can beat this virus and get back to living our lives."

This is the right outlook, but the comment I like better came from Steve Baker in the debate over an emergency bill in the British Parliament. He gives the proper name to these emergency measures and treats them with an appropriate moral and emotional revulsion--regarding them, in effect, as necessary evils, with an emphasis on the evil.

"We are, perhaps let me be the first to say it, implementing tonight in this bill at least a dystopian society. Somebody will call it totalitarian. I don't think that is quite fair, but it is at least dystopian. It is implementing a command society under the imperative of saving hundreds of thousands of lives and millions of jobs....

"Libertarian though I may be, this is the right thing to do.

"But my goodness we ought not to allow this situation to endure one moment longer than is absolutely necessary to save lives and preserve jobs."

In the previous edition, I quoted someone who compared our response to the pandemic to Germany in the 1940s. I think that's the wrong comparison. It's more like America in the 1940s. Then, too, we saw a vast expansion of government power--both legitimate wartime powers and many illegitimate ones. There were those who loved the mass regimentation, the central planning, the idea of everyone drafted by the state and taking orders, and who wondered why we couldn't keep all of that in place and apply it to other favorite causes that were "the moral equivalent of war."

What actually happened is that the moment the war was over, the American people were incredibly eager to get back to normal life and sweep away all vestiges of wartime regimentation.

I hope and expect the same thing to happen again.

The goal of stopping this pandemic is to return to normal life: to what is metaphysically normal, to the normal activities and goals of human life, and to the normal scope and powers of government in a free society.

Editor's Note: You may have noticed that this series is organized around four of the five main branches of philosophy: metaphysics, epistemology, ethics, and politics. In the next edition of The Tracinski Letter, I will follow up by considering the esthetics of the coronavirus.