Friday, April 03, 2020

End the Coronavirus Shutdown to Protect Life and Liberty

Around the world, the governmental shutdown of the economy and society in the effort to contain the COVID-19 pandemic threatens human life and liberty; and if it is not ended soon, people will have the natural right to resist through civil disobedience or even revolution.

At his March 23 briefing for reporters, President Trump said that the country should reopen for business within a few weeks--perhaps by Easter Sunday April 12--because any longer shutdown of the economy would be more harmful than the pandemic: "We can't have the cure be worse than the problem."  He warned that with a long economic shutdown, there would be "probably more death that than anything that we're talking about with respect to the virus."

But then a week later, under the influence of the CDC and other public health professionals, he reversed himself and said the shutdown would have to be prolonged.  Now, in the U.S., 10 million jobs have disappeared in two weeks, and this is only the beginning of what is likely to become a collapse of the global economy.  Trump hasn't explained what was wrong with his earlier objection to destroying the economy as a greater threat to public health than the pandemic.  Just when we most need him to fight against the Deep State, he surrenders!

In the United States, the shutdown violates the constitutional right of every person not to be "deprived of life, liberty, or property, without due process of law" (5th Amendment).

It is true that state and local governments do have broad "police powers" to use quarantines and lockdowns in emergencies to protect the public health.  But in this case, such measures are unjustified, because their likely harms in their threat to life and liberty from a global economic depression exceed their likely benefits for public health.

Political leaders have assumed a false dichotomy: in our response to the COVID-19 pandemic, the choice is not between "doing nothing" and a governmental lockdown of economic and social life.  The best response is to give people accurate information about the disease and how it spreads, and then leave them free to change their behavior in ways that will mitigate the harm from the epidemic, while quickly restoring the conditions for a normal life.

Ultimately, it is the natural right of the people to decide whether this governmental lockdown is necessary to protect the public health, or whether this is so destructive of their life and liberty that they have the natural right to resist the governmental orders, and to institute a new government more likely to effect their safety and happiness.


CONSTITUTIONAL EXECUTIVE PREROGATIVE?

In many respects, the flu pandemic of 1918 resembles the COVID-19 pandemic today.  One remarkable difference, however, is that in 1918 national governments did little to develop national or international policies for containing the pandemic.  In the United States, President Woodrow Wilson did not even speak publicly about the pandemic.  So it was left largely to state and local governments to devise their own policies.  One reason for this is that there was a wartime regime of censorship that enforced a public silence about the pandemic, because it was thought that public knowledge of this would weaken the morale of the citizens and the military.  Newspapers were prohibited from reporting what was really happening in the pandemic.

The spread of the disease around the U.S. and around the world (perhaps from its origin in Haskell County, Kansas) was due largely to the movement of American troops in World War I.  Thus, the quick spread and the high mortality of this pandemic of 1918 was mostly caused by governmental actions in the war--the censorship and the movement of troops in crowded conditions.

Public health professionals--like those in the U.S. CDC--have said that the lack of a nationally coordinated response to the pandemic from the federal government made the pandemic more destructive than it should have been.  That's why the CDC and other public health agencies have persuaded national leaders like Trump that we need a national policy announced by the President for managing the COVID-19 pandemic.  But then the question is whether the President has the constitutional power to impose such a policy that includes shutting down much of the economy and social life of the United States.  In fact, the Constitution does not give the President any emergency power to do this.

In Anglo-American law, it has been common to assert that the chief executive of any government has a broad discretionary power to act in times of emergency to do whatever is necessary for the public good.  In England, this was part of the monarch's "prerogative" power, which John Locke identified as the power "to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it."

But notice the critical standard here--"the public good."  Is it in the public good to shut down economic and social life so drastically as to cause a global economic depression, which will be much worse than the Great Depression of the 1930s?  Certainly the public health is part of the public good, but don't poverty and unemployment threaten the public health?  And aren't there obvious ways to slow down the spread of an infectious disease--by social distancing and isolating sick people--without shutting down the economy?

Michael Dorf, a law professor at Cornell University, has argued that the best power in the Constitution for shutting down the economy to slow the COVID-19 pandemic is the power to suspend the writ of habeas corpus.  In Article I, section 9, of the Constitution, it is said that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it."  In the British common law tradition, people who are arrested and detained by public officials can file a writ of habeas corpus that demands that if the officials have not filed legal charges for the trial of those being held in confinement, then the people must be released.  Therefore, suspending the writ of habeas corpus is in effect the suspension of individual liberty because it means that anyone may be held in detention or in prison without being charged with any crime.  This would allow the government to put anyone into quarantine or under house arrest without any due process of law.

To invoke this power to enforce a national coronavirus shutdown would require claiming that the coronavirus is an "invasion" of the United States, and that in response to this viral invasion of the United States, a shutdown of the economy and society by the national government is the only way to protect "the public safety."

Obviously, the constitutional language of "rebellion or invasion" suggests military violence, and to say that a viral pandemic is an "invasion" is implausible.  Still, however, Dorf suggests that the Supreme Court might leave it up to the Congress or the President to decide what counts as an "invasion."

The national government has never suspended the writ of habeas corpus in response to an infectious disease.  Indeed, the formal suspension of the writ of habeas corpus has occurred only once in American history--in the Civil War.  Abraham Lincoln suspended the writ at the beginning of the war in April of 1861, claiming this as a presidential power to deal with the "rebellion" of the South.  His critics objected that since this power was found in Article I of the Constitution, which is the Article devoted mostly to legislative powers, then this must be a power of the Congress rather than the President.  Later, in 1862, the Congress passed legislation formally suspending the writ.

Even if the President or the Congress wanted to suspend the writ to allow for suspending individual liberty in shutting down the economy in response to the pandemic, we would still have to ask whether this would serve "the public safety."  A global economic collapse might be a greater threat to the public safety than this pandemic.

Although there is some doubt as to whether the national government has the constitutional power to shut down the economy as a policy for controlling the coronavirus pandemic, there is a plausible argument for this power belonging to state and local governments.  That's why in "President Trump's Coronavirus Guidelines for America," which have been widely publicized and distributed by the White House, the first sentence is "Listen and follow the directions of your state and local authorities."


STATE EXECUTIVE PREROGATIVE?

In Anglo-American law, the governmental power to protect public health and safety has been seen as part of the "police power."  Black's Law Dictionary defines "police power" as "The power of the State to place restraints on the personal freedom and property rights of persons for the protection of the public safety, health, and morals or the promotion of the public convenience and general prosperity.  The police power is subject to limitations of the federal and State constitutions, and especially to the requirements of due process."

The Constitution does not delegate "police power" to the Congress or the President.  And the 10th Amendment declares: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."  This has been generally assumed to mean that "police power" is reserved to the States.

In my home state of Michigan, Governor Gretchen Whitmer issued an executive order on March 23 entitled "Temporary Requirement to Suspend Activities That Are Not Necessary to Sustain or Protect Life."  She declared: "This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life."  Over a hundred thousand people have already filed for unemployment.  Is being employed to support oneself and one's family "necessary to sustain or protect life"?  If so, then the consequences of her order contradict her declared purpose.

Whitmer invokes the "Emergency Powers of Governor Act of 1945," which allows the Governor to declare an emergency as an exercise of the "police power" in declaring "reasonable orders, rules, and regulations" that are necessary "to protect life and property."  Disobeying these orders is "punishable as a misdemeanor."

But, once again, when people lose their jobs or have to close down their businesses because of this order, doesn't that threaten their "life and property"?

Of course, the governors who are issuing these executive orders destroying the economy will say that right now protecting our physical health from the coronavirus is more important than protecting our economic life and property.  New York Governor Andrew Cuomo has said: "If it's public health versus the economy, the only choice is public health."

If it's public health versus the economy!  Is there really a contradiction between public health and the economy?  Or is it rather true that an impoverished economy threatens public health?  Historical data show that the average longevity of life is correlated with economic prosperity.  The richer countries have longer life expectancy than the poorer countries.  For most of human history, life was short and unhealthy for most human beings because they lived in grinding poverty.  Only in the last century and a half has it become possible to sustain 7.6 billion people living on the Earth because of the productivity of the modern market economy.  But even today, any drop in market productivity brings a drop in human longevity and health.  I have written about this here.

"The only choice is public health"?  Well, but haven't we generally assumed that the best way to protect public health against infectious disease is to engage in largely voluntary countermeasures--such as social distancing and isolating sick people--without governments coercively shutting down the economy?

Over the past hundred years, the United States has faced four great flu pandemics in 1918, 1957, 1968, and 2009.  In 1918, 50 million people around the world died from the "Spanish flu" (the H1N1 virus) including 675,000 in the U.S. (0.65% of the population).  In 1957, 1.1 million people around the world died from the "Asian flu" (the H2N2 virus), including 116,000 in the U.S. (0.067% of the population).  In 1968, 1 million people around the world died from the influenza A (H3N2) virus, including 100,000 in the U.S. (0.05% of the population).  In 2009, the "swine flu" (a new strain of the H1N1 virus) killed 12,000 or more people in the U.S.

If the same fatality rates in proportion to population were to occur in 2020 for a U.S. population of 330 million, the deaths would be 2,145,000 (1918), 221,770 (1957), and 165,500 (1968).

Keep in mind also that in the seasonal flu epidemic of 2017-2018, 45 million Americans were ill, 810,000 were hospitalized, and 61,000 died.

The crucial point here is that in none of these past flu pandemics and seasonal flu epidemics, was there a governmental shutdown of the economy, because people believed that the likely harm from such a shutdown would be greater than any likely benefits from reducing deaths.  So why should it be any different this year?

Apparently, the argument is that the coronavirus pandemic is as deadly today as the H1N1 flu pandemic in 1918, and if we've leaned the lesson from not having a national economic shutdown in 1918, then we should have such a shutdown this year to avoid 2,145,000 American deaths.  But there are four good objections to this reasoning.

First, there is no good evidence that the coronavirus is as deadly as the H1N1 virus of 1918.

Second, the high fatality rate in 1918 came largely from the lack of information about the disease--due to wartime censorship--and today better information allows us to take countermeasures against the coronavirus that will drastically reduce deaths without shutting down the economy.

Third, the 1918 virus killed people at all age levels--children, young adults, and the old--but the 2019 coronavirus mostly kills only older people with health problems.  This allows us today to focus our attention on protecting and isolating this older more vulnerable group, while allowing the others to develop the herd immunity that will stop the spread of the virus.  This is the argument of David Katz in an article in the New York Times.

The fourth objection, as I have already argued, is that a global economic depression is likely to be a greater threat to human life than the coronavirus.


CIVIL DISOBEDIENCE AND THE RIGHT TO REVOLUTION

I think John Locke and the Declaration of Independence are right about the natural right of people to resist unjust government in defense of life, liberty, and the pursuit of happiness.  If that is true, we can predict that the attempted governmental shutdown of our economic and social life will eventually provoke popular resistance through civil disobedience, and perhaps even revolution.

The first signs of this are already evident.  In Michigan and in other states, people are working in occupations deemed "nonessential" by the governmental shutdown orders.  For example, people with small construction businesses are secretly continuing some of their small home construction jobs.  These and many other people are joining an illegal black market economy.  As the months of shutdown go by, we can expect to see closed businesses reopened by business people who refuse to see their lives destroyed.

There is already a massive illegal economy all around the world where people engage in economic activity that is prohibited by law.  This new global suppression of economic life in the effort to contain the coronavirus will surely excite more civil unrest as people decide that they must violate the law to protect themselves and their families from economic ruin.  In many countries--such as India--poor people will be driven to such rebellion to avoid starvation.

The only question now is whether any prominent political leader will have the wisdom and courage to condemn the madness of this shutdown.  For a few days, it seemed that Trump might be the one to do this, but now it seems that his moral and mental instability prevent him from engaging in such an act of statesmanship.

4 comments:

Kent Guida said...

I agree completely – the shutdown must be ended quickly, and the groundwork laid now.

Yet this position, and the reasoning behind it you so clearly lay out, has practically no purchase with the general public and less than none with the academy, the media, prominent politicians or anyone else with a platform. Anyone who hints that what you suggest is the proper course, such as the Texas Lt. Governor or Richard Epstein, is instantly vilified. Governors seem to be competing among themselves to decree the harshest and most long-lasting lockdown.

Economists have been practically no help on this question. Here is a poll showing their overwhelming support for the present course, and no dissent:
http://www.igmchicago.org/surveys/policy-for-the-covid-19-crisis/

How exactly is a return to sanity to come about? You suggest rebellion, which would be great, but again I see no public support for the idea that the rule by epidemiologists must be overthrown. On the contrary, epidemiologists have become the new rock stars and the poor man’s philosopher. Everyone else wants to get on the bandwagon by going on and on about R0.

Like it or not, it’s up to Trump to reverse course, end this madness and put “the scientists” in their place. It will require, above all, someone with the fortitude to go against the practically unanimous elite opinion. Who else is going to make this happen? Joe Biden?

Larry Arnhart said...

I agree with you that public opinion seems right now to favor the shutdown, because so many people think the virus is going to kill them. But what happens in three or four months, and they don't see anyone they know who has died, but they see lots of people whose lives are being destroyed by the shutdown?

Kent Guida said...

My guess is if we are not on a clear path to resuming business by the end of April, public opinion will turn around and the lockdown will start to unravel. It can't last three or four months, regardless of what "the scientists" may say. Either Trump will initiate the unlocking, or people will just quietly begin reopening businesses and returning to normal on their own -- spontaneous adoption of the Swedish approach. It already seems like the medical establishment is lagging behind the reality and behind public opinion, as shown by the belated endorsement of hydroxychloroquine and wearing face masks. These things were already happening -- it looks like every ER doc is already taking Plaquanil regardless of what FDA and CDC say. The standing of epidemiologist-as-philosopher will be gone in a matter of weeks, not months. And the media will fail in their efforts to prop up that regime, will do a quick 180, and pretend like that that was their view all along.

Anonymous said...

Regarding the question of the best course of action, I find this article on why the death rate is so low in Germany interesting
https://www.nytimes.com/2020/04/04/world/europe/germany-coronavirus-death-rate.html?algo=top_conversion&fellback=false&imp_id=556525267&imp_id=635131065&action=click&module=Most%20Popular&pgtype=Homepage

Les Brunswick