The thing that most terrifies me about the Covid-19 pandemic is not the prospect of death or physical illness. No one gets out of here alive: I’m old enough to understand that less as the abstract application of a syllogism – all men are mortal, Socrates is a man, therefore Socrates… – than as an existential, personal threat. (I am 65 years old, after all; I know I am rounding third and heading for home.)
No, what terrifies me is the body of law we are permitting to be developed. Once the pandemic passes, and this one will, as previous pandemics have, we will be left with judicial precedent that has the potential to change our way of life in fundamental ways.
One of the defining characteristics of public life in the United States is federalism. By design, we lack a centralized power capable of administering one set of uniform rules regarding public health in the United States. The so-called “police power,” the ability to make laws to promote the health and welfare of the community, resides in the states; the federal government is a government of limited powers. There is no federal police power.
There never has been.
And within the states themselves, much like within the federal government itself, such power as exists is fractured, or spread among differing branches of government. Lawyers call this the separation of powers doctrine. By allocating different powers to the executive, legislative and judicial branches, we permit those with power to be checked and balanced by others with power.
The system is designed to be inefficient.
That’s all fine and dandy for most problems and issues that government is called upon to solve. But what to do in an emergency, and who decides if there is an emergency in the first place?
These issues have been front and center in 2020.
I first became aware that trouble was coming when I saw news reports in January about China building a large hospital in Wuhan in ten days. The Chinese knew a disaster was about to strike. Being a centralized government with absolute power, it was able to respond quickly and decisively. There were reports of Chinese officials welding the doors to folks’ apartments shut – with the occupants inside – when there was a lack of compliance with orders to quarantine.
We lack such centralized power to deal with public health problems in the United States, and that is fine with me. Socrates once observed that “the point is not to live, but to live well.” I prefer my liberty to centralized control, even if liberty is sloppy and may result in my dying sooner rather than later.
Does that mean I reject science?
Of course not.
I do believe that experts can meet, confer, and agree upon the best possible solution to any problem they confront. I believe that medical professionals and public health officials can design systems best able to maximize the greatest good for the greatest number.
Thus, mandates regarding the wearing of masks and social distancing. I recognize these policies as well-intentioned methods for controlling the spread of Covid-19. I follow the recommendations wilfuly, and I wish more people did. I also recognize there is a robust debate about children's wearing masks, especially in schools.
But I do not want to live in a society in which government, whether it be federal, state or local, has the power to enforce compliance with these mandates by means of criminal sanctions. I accept scientific expertise, to be sure. But I didn’t vote for Harvard’s School of Public Health to become emergency governor in our present state of distress.
The courts have largely been deferential to emergency measures in emergency situations. But, as last week’s Supreme Court decision involving Catholic churches and Jewish synagogues in New York makes clear, the Constitution isn’t sent on sabbatical in times of crisis. The freedom to worship, to associate, to dissent, even to engage in self-destructive behavior remains.
As our response to the pandemic moves from an acute to a chronic phase, emergency powers must, and should, yield to the often inelegant process of lawmaking and coordinating the activities of 50 states and a limited federal government.
I watch with distress as news organizations such as CNN decry the Supreme Court’s “rejection” of science. That’s not even close to what the decision last week meant. (Note to CNN: You need a replacement for Jeffrey Toobin. Now! Someone who has actually litigated constitutional claims. Yes. I am available, thank you.)
Suggesting that we must somehow defer to the experts now and forever more because lives might be lost were we to do otherwise yields a future in which we become safe at the expense of the liberty to make even foolish choices.
News reports suggest vaccines may soon be available. We may outlive this pandemic after all, even with our inefficiencies and refusal to let the experts govern.
But what of the next crisis to affect our collective well-being? Some say it is already upon us. What powers shall we give the federal government to combat climate change? Can we afford to let some states opt out of responding to a threat that could make liberty a costly bauble?
I recall a brief book written in 2014 by Erik Conway and Naomi Oreskes called, The Collapse of Western Civilization: A View from the Future. Only China survived the challenge of climate change; Western nations couldn’t muster a collective response, distracted, as they were, by liberty and the democratic norms. China’s centralized economy and totalitarian government relied on experts to decide how best to survive. And so China did, by not letting perfection be the enemy of necessity.
I’m guessing plenty of folks in this pandemic-weary year would sacrifice liberty for a trip to a new normal, a normal in which it was once again safe to go outside, where the state provided minimum conditions for a decent life to all.
I’m not signing up for the public health state. However much expertise scientists may have developed in understanding the material conditions necessary to produce the best possible health for the most possible people, transforming this understanding into binding public policy would create a centralized state the likes of which has not grown on this soil for centuries. I don’t want nannies keeping me safe and secure.
To mask or not to mask, the debate rages, and scientists are in despair. We the people just don’t listen. Good, I say. Science isn't democratic; a lab isn't a republic. I don't live in a lab.