Friday, June 19, 2020

Gorsuch's Scalian Textualism Supports LGBT Rights--and the End of the Conservative Legal Movement

This week, the U.S. Supreme Court announced its decision in Bostock v. Clayton County, holding that the Civil Rights Act of 1964 forbids employment discrimination against homosexuals and transgender people, because Title VII of that Act makes it unlawful "to discriminate against any individual . . . because of . . . sex."

The big surprise is that the opinion of the majority (six justices) is written by Neil Gorsuch, Donald Trump's first Supreme Court appointee, who filled the vacancy created by Antonin Scalia's death, with the expectation that he would be a conservative justice in the tradition of Scalia.  Gorsuch does indeed apply Scalia's textualist approach to the Constitution in support of his decision, but the three dissenters (Alito, Thomas, and Kavanaugh) complain that the result in this case is just the opposite of what Scalia would have done.

This raises at least three big questions.  Does this destroy any possibility for Trump's reelection?  Does this mean the end of the conservative legal movement that supported Gorsuch?  And does this cast doubt on the intellectual coherence of Scalia's textualist jurisprudence?

Trump could not have been elected without the votes of conservative Christians--evangelicals and conservative Catholics--who were disgusted by Trump's shameless immorality and lack of any religious convictions, but who voted for him because he promised to appoint conservative constitutionalists to the Supreme Court who would uphold conservative Christian values. Preeminently, this meant legal decisions that would support the pro-life attempt to overturn Roe v. Wade, the protection of religious liberty, and slowing or reversing the expansion of LGBT rights.  It was assumed that this would be achieved by judges like Scalia who insisted that the proper role of judges is not to make the law but to interpret and apply the law as written, so that judges cannot act as legislators who change the law to advance their policy preferences.

In February of 2016, Scalia died.  A few weeks later, President Barack Obama nominated Merrick Garland to fill Scalia's vacancy on the Court.  This created a rare situation in which a Democrat president in his last year of office was nominating someone to the Supreme Court, who would have to be approved by a Senate controlled by the Republicans, and who would be replacing a conservative Republican appointed judge, so that the majority of the Supreme Court justices would swing from Republican appointees to Democrat appointees.  To prevent this from happening, Senate Majority Leader Mitch McConnell refused to even allow the Senate to consider Garland's nomination, arguing that this was inappropriate in a presidential election year, and that the new President should nominate someone in 2017.

During his campaign in 2016, Trump promised that all of his judicial appointments would come from a list of people recommended by the Federalist Society, the leading organization in the conservative legal movement devoted to packing the judicial system with conservative judges.  Conservatives claim to be constitutionalists and defenders of the rule of law who think judges should adhere to the original meaning of the Constitution and the clear textual meaning of the laws, in contrast to liberal judges who impose their liberal preferences in acting as legislators rather than judges.  Scalia was a hero of the conservative legal movement, and Trump promised that his first Supreme Court appointment would be someone like Scalia.  Religious conservatives were attracted by this because they assumed that conservative judges would favor conservative religious values.  For many religious conservatives, they could overlook all of Trump's obvious flaws and vote for him only because his judicial appointments would be good.

Trump's nomination of Gorsuch within the first weeks of his presidential term, and his later nomination of Brett Kavanaugh (to replace Antony Kennedy), seemed to satisfy the hopes of the religious conservatives that the Supreme Court would swing to their side.  No matter what Trump did to disappoint them, the religious conservatives could say: But there's Gorsuch!  But there's Kavanaugh!

What now?  Kavanaugh voted their way in Bostock.  But not Gorsuch.  And even more disturbing for them is that Gorsuch justified his vote by applying Scalia's textualist approach to the law.  If only a few religious conservatives decide that their bargain with Trump and the conservative legal movement has failed, and so they should not vote for Trump in November, that would probably cost Trump enough votes to lose.

That Gorsuch's opinion in Bostock really does mean that the bargain has failed was loudly and prominently declared by Senator Josh Hawley on the floor of the Senate this past week.  Hawley is the junior Senator from Missouri, who defeated Democrat Senator Claire McCaskill in 2018.  He's a lawyer who led the Federalist Society chapter at Yale Law School, and he's a fervent Christian conservative.  At age 40, he's the youngest person in the Senate.

In his speech, he said that the Bostock decision is "truly a historic piece of legislation" that changes the text of the 1964 Civil Rights Act to expand the protection from unfair sex discrimination in employment to include protection for gay men, lesbians, and transgender people.  But, of course, that's the problem--its a piece of legislation by judges who have acted as legislators in changing the civil rights laws rather than interpreting and applying the existing texts of the law.  This is not what he and other religious conservatives bargained for in supporting the conservative legal movement, because legal conservatives like Gorsuch were supposed to stay within the text of the law--and leave the lawmaking to the true elected legislators--in a manner that would protect the conservative values of religious believers.  In this case, religious conservatives would have expected Gorsuch to join Alito, Thomas, and Kavanaugh in resisting the demand of LGBT ideologues that judges should rewrite the laws to expand LGBT rights.

The problem, however, as Hawley indicates, is that judges like Gorsuch "invoke 'textualism' and 'originalism' in order to reach their preferred outcome."  Here Hawley seems to agree with Justice Alito that Gorsuch's textualism is fraudulent.  In his dissenting opinion in the Bostock decision, Alito warns that Gorsuch's opinion is legislation disguised as a judicial opinion interpreting a statute, and therefore it is not really anything like Scalia's textualism.
"The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled.  The Court's opinion is like a pirate ship.  It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated--the theory that courts should 'update' old statutes so that they better reflect the current values of society" (3). 
Gorsuch emphatically asserts that he is following Scalia's textualist approach in grounding his legal interpretation in the text of the law and nothing else.  "When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest.  Only the written word is the law, and all persons are entitled to its benefit" (2).

Here's the crucial text from Title VII of the Civil Rights Act of 1964:
"It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
In the three cases before the Court, two individuals were allegedly fired by their employers for being homosexuals; and the third was fired when, having lived as a man, and after working for her employer for six years, she announced that she would henceforth be living as a woman.  All three argued that their firings violated Title VII declaration that an employer may not "discriminate against any individual . . . because of . . . sex."

Title VII never explicitly mentions homosexual orientation or transgender identity as illegal grounds for discrimination in employment.  There have been many attempts in the Congress to amend Title VII to define sex discrimination to include both "sexual orientation" and "gender identity."  Last year, the House of Representatives passed a bill to do this, but it has been stalled in the Senate.  The three dissenters in Bostock cite this as evidence that the text of Title VII as it now stands does not include homosexuality and transgender identity as prohibited grounds for employment discrimination, and therefore those like the plaintiffs in Bostock who want to expand Title VII's protections should have to wait until the law is changed by the legislature.

Gorsuch's argument, however, is that the present language of Title VII implicitly protects the three plaintiffs from discrimination, because when employers fire employees for being homosexual or transgender, these employers are discriminating against these individual because of sex.  If an employer would never think of firing Sally because she has a romantic interest in men, but then he fires John when he shows a romantic interest in men, that employer has treated the man differently from the woman because of his sex, which is the language of Title VII for illegal discrimination in employment.  A similar kind of reasoning would show that firing a transgender employee is forbidden by Title VII: if an employer fires his transgender female employee because he knows she was born a biological male, then he is firing her because of her sex.

Remarkably, Justice Kavanaugh concedes that "as a very literal matter," Justice Gorsuch's interpretation of the legal text is correct! But Kavanaugh argues that as a sound principle of judicial interpretation, the "ordinary meaning" of a legal phrase is to be preferred over the "literal" meaning.  So while Gorsuch is right that the literal meaning of discrimination because of sex includes discrimination against homosexuals and transgender people, the ordinary meaning accepted by reasonable people--legislators, judges, and citizens--is that prohibiting discrimination because of sex means equal treatment for men and women, which does not require prohibiting discrimination based on sexual orientation or gender identity.

Kavanaugh says that Scalia would not have accepted Gorsuch's literal interpretation of "because of sex."  After all, Scalia himself once said that "the good textualist is not a literalist" (6).  And yet Gorsuch relies heavily on a crucial interpretation of Title VII by Scalia in his opinion, writing for a unanimous court, in Oncale v. Sundowner Offshore Services (1998).  Joseph Oncale alleged that he was forced to quit his job working on an oil platform in the Gulf of Mexica because he had been sexually harassed by other men in the crew.  Oncale said that he would not have been harassed by these men if he had been a female, and therefore he had been discriminated against because of his sex, which was prohibited by the language of Title VII.

When the Congress wrote and approved Title VII in 1964, probably no one anticipated that the language of the text would prohibit the sexual harassment of men by other men in the workplace.  This was not part of Congress's original intent.  But still, Scalia concluded, if the literal interpretation of Title VII protected men from such harassment, then this was part of the original meaning of the statute, even if that meaning was not understood in 1964.

Scalia wrote:
"We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.  As some courts have observed male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.  But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.  Title VII prohibits 'discriminat[ion] . . . because of . . . sex' in the 'terms' or 'conditions' of employment.  Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements."
The same literal reading of "because of sex" applied here, Gorsuch observes, also applies to employment discrimination based on the homosexuality or transgender status of employees.

This is what Walter Olson at the Cato Institute calls a "surprise plain meaning" reading of the law.  Sometimes a strict textualist reading of the law can turn up a meaning that surprises the jurisprudential textualists, a meaning that might even contradict the conservative policy preferences of the textualists.

But isn't that good for textualism, because it refutes the claim of textualism's critics that textualists use the supposed objectivity of textualism to read their own conservative ideology into the text of the law?  If textualism reveals in an unbiased way what the law really says, then one should expect that what is found in the law will sometimes surprise or even disappoint the conservative textualists.

That is the case with Gorsuch's reading of Title VII as expanding LGBT rights, against the desire of religious conservatives that those rights should be narrowed.  Similarly, as I have argued in a previous post, one can make a good textualist argument for concluding that the original meaning of the 14th Amendment supports same-sex marriage, which would provide a textualist justification for Justice Kennedy's opinion in Obergefell.  That argument has been well made by William Eskridge and Steven Calabresi in their amici curiae brief in the Obergefell case.  Eskridge and Andrew Koppelman made a similar textualist argument supporting Gorsuch's opinion in Bostock in their amici curiae brief in that case.

I doubt, however, that conservative Christians like Josh Hawley will ever be able to accept this kind of textualist jurisprudence when it supports decisions like those in Bostock and Obergefell that violate their Christian values.  And if they desert Trump in November because they think their bargain with Trump and the conservative legal movement has failed them, this could contribute to an electoral disaster for Trump and the Republican Party.

There is another fundamental problem here that Senator Hawley identifies.  He asks why most of the laws in the United States are made by unelected bureaucrats and courts rather than by the Congress, and he answers: "Because this body doesn't want to make law."  Congress has refused to claim and exercise its lawmaking authority, and consequently they have allowed the president, the administrative agencies, and the courts to make most of the laws.

And indeed here--in the interpretation of Title VII--the Congress has the power to overturn or revise the Supreme Court's interpretation of the law in Bostock by legislating a congressional interpretation of Title VII.  Congress has all the constitutional powers to be the supreme branch of the national government, but it often refuses to exercise those powers.

Wednesday, June 10, 2020

The Evolutionary Psychology of Magna Carta and the Rule of Law

                                                  The Original Latin Text of Magna Carta

In a few days, we will reach the anniversary of Magna Carta, which was a charter of rights agreed to by King John of England at Runnymede meadows, near Windsor, about 20 miles west of central London, on June 15, 1215.  For over 800 years, Magna Carta has symbolized the idea of the rule of law--the idea that freedom from unjustified force is secured under the rule of law when no person is above the law, and all people are equal before the law in the legal enforcement of their individual rights.

The power of this idea is illustrated now by the massive protests against police brutality and racial injustice sparked by the killing of George Floyd by a Minneapolis police officer on May 25.  The video of the police officer--Derek Chauvin--pressing his knee into the neck of Floyd until he died from suffocation was seen by billions of people around the world as an unjust violation of the rule of law.  This officer seemed to act as if he was not subject to the laws against violent assault and murder, and Floyd was not equal to all other citizens in having a right to life.  The many proposals for reforming police departments are designed to insure that police are under the rule of law, so that they will be punished for infringing on the rights to life, liberty, and property without due process of law.

The protests against the killing of Floyd have appeared in over a thousand locations in all 50 states of the U.S. and in over 40 other countries, including all of the European countries and around the world from Argentina and Brazil to Australia, New Zealand, and Hong Kong.  This shows a universal moral sentiment of disgust elicited by the violation of the principle of the rule of law, which suggests that this is rooted in evolved human nature.

To see Magna Carta as the original source for this idea of the rule of law has been challenged over the past one hundred years by some historians of law who ridicule this as a "myth" contrary to the historical reality of Magna Carta, which was nothing more than a failed attempt to achieve a peace treaty between King John and some rebellious barons trying to secure their baronial privileges.  The "myth of Magna Carta" was invented, the historians say, by Sir Edward Coke and other opponents of monarchic absolutism in seventeenth century England, because the idea that Magna Carta was part of an "ancient constitution" protecting the liberties of the people from monarchic tyranny was a good rhetorical weapon to use against the Stuart royalists (Herzog 2018; Jenks 1904; Pocock 1957).

But if one looks at the evolutionary history of Magna Carta--as a work of natural law, customary law, and statutory law--one can see that in advancing the aristocratic interests of their class in 1215, the English barons made an argument--that monarchic political authority could be constrained by a rule of law that protects the liberty of subjects--that could be expanded over the subsequent 800 years on a wider scale to secure the equal liberty of all individuals.  Although the "myth of Magna Carta" is not literally true, it is symbolically true as an evolutionary development of the inherent potential of Magna Carta for adapting to changing circumstances.

King John was a wretched monarch whose oppressive rule alienated many of his subjects, including his Barons, who were given their titles and their large tracts of land by the King.  Many of the Barons were angry about the King's endless increases in royal taxes and required payments and by the unjust arbitrariness of the King's courts.

Some of the Barons became so rebellious that they initiated a civil war to overthrow the King, and some tried to have him assassinated.  This was a common pattern in English history.  Almost every English King after William the Conqueror had faced a revolt by the nobility.  Failing to defeat the rebels in war, and fearing that he would be killed if he did not yield to their demands, King John was forced to meet the baronial leaders of the revolt at Runnymede and agree to affix his royal seal to Magna Carta, which declared that the King would secure a long list of "ancient liberties" for "all free men" in his kingdom.  Not trusting the King to keep his word, the Barons added a security clause at the end of the document, which provided for the election of twenty-five barons who would punish the King for any violations of the agreement by taking the King's castles, lands, and possessions.

Here we see the evolutionary origin of individual liberty, which always appears first as a by-product of a struggle for power among elite groups rather than as the result of any deliberate aim to advance liberty.  As I have suggested in some previous posts (here, here, here, here, and here), the Lockean evolutionary history of liberty is driven by the violent and non-violent resistance to tyranny, which Locke identified as the "executive power of the law of nature," and which includes civil war and killing kings.  The police protests show that same natural human propensity to resist oppressive injustice.

King John appealed to Pope Innocent III to annul Magna Carta by finding it a "shameful and demeaning agreement, forced upon the King by violence and fear."  The Pope did that, and England was thrown into what was known as the First Barons' War.  The Barons offered the crown of England to Prince Louis of France, who intervened in the civil war on the side of the Barons.  King John died in 1216 from an illness.  When the civil war ended in 1217, Magna Carta was reissued on behalf of Henry III, John's young son.  This began a long history in which Magna Carta was confirmed by later kings and revised by statutes of Parliament.

By the conventional numbering of the clauses, the original version of Magna Carta from 1215 has 63 chapters, while the version from 1225 has 37 chapters.  Most of those clauses assign rights or liberties to specified classes of people.  Six social classes are expressly mentioned: earls and barons, knights, "free men" (liberi homines), clerics, merchants, and villeins.  As Jenks and other historians have observed, nothing is said about the rights of "the people," which might seem to deny the mythic view of Magna Carta as securing the individual rights of the people.  Rather, most of the rights here are assigned to the aristocratic classes.

Most of the English people in 1215 were villeins (or serfs) who were tied to the manor of a lord, who did the servile work of the manor, and who were held by the lord as his property.  The "free men" are distinguished in Magna Carta from the villeins, and also from earls, barons, knights, clerics, and merchants.  "Free men" seem to be aristocratic landowners.

So while most of Magna Carta was written by Barons to protect their own privileges, there is some extension of rights to non-baronial classes, including the tenants of the Barons.  Chapter 60 declares: "all those customs and franchises mentioned above which we have conceded in our kingdom, and which are to be fulfilled, as far as pertains to us, in respect to our men; all men of our kingdom as well as clergy as laymen, shall observe as far as pertains to them, in respect of their men."

The two passages that were most important for Edward Coke's claim of an "ancient constitution" limiting the King's powers and protecting the rights of the people were chapters 12 and 39.  Chapter 12 reads: "No scutage or aid shall be imposed in our kingdom except by the common council of our kingdom, except for the ransoming of our body, for the making of our oldest son a knight, and for once marrying our oldest daughter, and for these purposes it shall be only a reasonable aid."  "Scutage" was a money payment in lieu of knight's service.  An "aid" was a grant by the tenant to his lord in times of distress.

Coke argued that this required parliamentary consent to royal taxation.  Some historians say this was a misinterpretation because there was no Parliament in 1215.  One could argue, however, that "the common council of our kingdom"--the "Great Council" of advisors to the King--was the predecessor of what became Parliament later in the 13th century.

The second important passage for Coke was chapter 39: "No free man [liber homo] shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers [nisi per legale judicium parium] or by the law of the land [per legem terrae]."

This is often said to be the first statement of the rights of the people to trial by jury, due process of law, habeas corpus, and the equal protection of the laws--traditional common law rights found in the amendments to the U.S. Constitution.

Some historians have made three arguments for why this is an unhistorical misinterpretation of this passage.  The words "no free man" implies a limitation to a small class of people.  The words "law of the land" are too vague to convey the modern idea of "due process of law."  And "legal judgment of his peers" probably meant not trial by jury but trial of barons by persons of equal rank rather than the king's judges who were of lower rank.

But while this might be true for the original meaning of chapter 39 in 1215, this ignores the fact that Coke's interpretation of this chapter was formulated as early as the 14th century in parliamentary statute.  Between 1331 and 1368, Parliament passed six statutes interpreting "no free man" to mean "no man" or "no man of whatever estate or condition he may be," interpreting "law of the land" to mean "due process of law." and interpreting "legal judgment of his peers" to mean trial by jury (Holt 2015, 39-40).

Here we see how Magna Carta fits into the evolutionary history of individual liberty under the rule of law as shaped by human nature, human custom, and human judgment, and as ultimately rooted in the evolved human instinct for resisting arbitrary absolute power over one's life, liberty, and property.


Herzog, Tamar. 2018. A Short History of European Law: The Last Two and a Half Millennia. Cambridge, MA: Harvard University Press.

Holt, J.C. 2015. Magna Carta.  Third edition. Cambridge: Cambridge University Press.

Jenks, Edward. 1904. "They Myth of Magna Carta." Independent Review 4: 260-273.

Pocock, J. G. A. 1957. The Ancient Constitution and the Feudal Law. Cambridge: Cambridge University Press.

Thursday, May 28, 2020

Does the Evolution of SARS-CoV-2 by Natural Selection Depend on Intelligent Design?

A Colorized Electron Microscopic Image of the SARS-CoV-2 Virus (in Red) Attacking a Human Cell (in Green)

Was the SARS-CoV-2 virus responsible for the COVID-19 pandemic intelligently designed--by either a human or a divine genetic engineer?  Or did it evolve by natural selection working on chance variation without any intelligent design?  Or should it rather be understood as a virus that evolved by natural selection but parasitically dependent upon the divine intelligent design of its animal hosts--bats and humans?  

And how does this influence our moral judgment?  If this pathogenic virus was created by an intelligent designer, can we rightly blame its designer--either human or divine--for the suffering of its human victims?  If it was created not by design but only by natural evolution, blaming a dumb virus for harming us makes no sense, but can we still judge it to be a bad virus that is very good at infecting us to achieve its parasitic reproduction of its progeny though our cells?  

Or should we blame ourselves for this bad virus because the Bible teaches us that it is a consequence of the Fall of Adam and Eve, whose sin in disobeying their Creator provoked his Curse on them and their world so that all of humanity would have to suffer and die until their redemption by Christ and resurrection in the afterlife to eternal life in Heaven?  If this is so, can we still rightly use any natural means available to us to understand and fight against this virus, while also praying to God for consolation in our suffering and perhaps even relief from the pandemic?  In doing this, is our scientific understanding of the pandemic contradictory to or compatible with our religious understanding of ourselves as sinful creatures longing for redemption by our Creator?  Should this pandemic remind us of our mortality and of our desire for immortality that can only be fulfilled through religious faith in resurrection to eternal life?  Or should this reminder of our mortality enhance our appreciation for our mortal earthly lives, as the only lives we will ever live, in which "death is the mother of beauty"?

Oh, I know what you're thinking--too many questions that I cannot possibly answer in any fully satisfactory way.  Of course, you're right.  But knucklehead that I am, I'm plunging ahead anyway.


The virus that has caused the COVID-19 pandemic has been identified by virologists as SARS-CoV-2--a strain or variety of the species severe acute respiratory syndrome (SARS) coronavirus, belonging to the genus Betacoronavirus and the family Coronaviridae (Gorbalenya et al. 2020).  The term coronavirus was originally coined because there are spike proteins protruding out of the surface of the virus so that as pictured through an electron microscope, the virus seems to have a "corona" like the Sun.

SARS-CoV-2 is the seventh coronavirus known to infect humans.  A previously identified strain of this same species is SARS-CoV, which is the virus that caused the SARS pandemic in 2003.  A closely related virus is MERS-CoV, the strain of the Middle East respiratory syndrome (MERS)-related coronavirus species that caused the MERS epidemic in 2012.  These three coronaviruses that cause severe disease all came from bats.  Of the four coronaviruses that cause common colds, two (OC43 and HKU1) come from rodents, and the other two (229E and NL63) come from bats.

One of the most popular conspiracy theories about the SARS-CoV-2 virus is that it originated not through natural evolution but through the human intelligent design of genetic engineers in a lab near Wuhan, China, who wanted it to be released in the United States so that it would cause a pandemic that would destroy Donald Trump's presidency and lead to his defeat by Joe Biden.  Other variations of this theory that the virus was genetically engineered come up with different sinister motivations for the conspirators--such as pharmaceutical companies that want to profit from selling vaccines and Bill Gates who wants to impose a global mandatory vaccination program on all of humanity.

Arguing against this assumption that this virus is the product of purposeful design, some virologists have compared the SARS-CoV-2 genome with the genomes of other closely related viruses, and they have concluded that the most plausible inference is that SARS-CoV-2 emerged through evolution by natural selection (Andersen et al. 2020).  Coronaviruses have single strands of RNA that carry their genetic information, and they can evolve quickly because not only do they mutate, they also recombine--when two distant coronavirus relatives are in the same cell, they can swap chunks of their RNA; and sometimes this recombination can create new versions of the RNA strand that can infect new cell types and jump to new species.

Recombination happens often in bats that carry many viruses known to infect humans.  The SARS-CoV-2 virus shares 96% of its RNA genetic material with a virus found in a bat in a cave in Yunnan, China, which suggests--although it does not prove--that this virus or some immediately ancestral virus came from bats.  The SARS-CoV-2 virus differs in one critical respect from this similar virus found in the rat.  The spike proteins of coronaviruses have a receptor-binding domain (RBD) that connects to the membrane of the host cell and allows the virus to enter the cell.  This is the key that unlocks the cell so that the virus can invade the cell and then hijack its metabolic machinery for reproducing new viruses that then break out of the cell for transmission to other host cells.  The SARS-CoV-2 virus has a particularly efficient binding domain adapted for entering human cells.  This binding domain differs in important ways from the binding domain of the Yunnan bat virus, which seems to be unable to infect humans.

A scaly anteater called the pangolin carries a coronavirus that has a receptor-binding domain almost identical to the RBD of the SARS-CoV-2 virus.  But the rest of this coronavirus in the pangolin is only 90% genetically similar to SARS-CoV-2.  So there is debate among virologists over whether the pangolin could have been the intermediary animal between bats and humans for the evolution of SARS-CoV-2.

So the SARS-CoV-2 virus might have evolved by natural selection in an animal host (a bat or a pangolin) before it jumped into a human.  Or an ancestor of this virus might have jumped into humans, and then it might have evolved into SARS-CoV-2 through adaptation to its human host cells.

It is unlikely that SARS-CoV-2 was designed in a lab by genetic engineering because its genome does not show any of the standard genetic tools used by genetic engineering scientists (Andersen et al. 2020).

Although it cannot be proven one way or the other, one can infer from this that the most plausible explanation for the SARS-CoV-2 virus is that it emerged not by human genetic engineering but by evolution through natural selection.

On his popular blog, P. Z. Myers--a self-described "godless liberal" who fervently defends Darwinian evolution against creationists and intelligent design proponents--has concluded:  "Sorry, conspiracy theorists.  The best explanation is evolution and natural selection, not Evil Intelligent Design."

Michael Egnor, an advocate of intelligent design theory affiliated with the Discovery Institute, responded to Myers' blog post by agreeing with him that evolution by natural selection can explain the origin of SARS-CoV-2.  But he also insisted that this shows the failure of Darwinian evolution as an explanation for the origin of living species.  He wrote:  "There is another lesson about design and evolution to be learned from scientific research on this virus.  Natural selection, if understood as undirected variation and differential reproductive success, is a destructive process.  Natural selection destroys biological functional complexity--it produces diseases, cancer, and pandemics.  It weakens and kills.  Natural selection does to living organisms what rust does to a machine.  Natural selection corrodes and destroys life, and plays no role in creating it."

Myers responded by claiming that Egnor was wrong about this: "Not for the virus, it wasn't a destructive process.  What was undergoing natural selection here was the virus, not us, and it has acquired attributes that make it wildly successful--it is now colonizing vast fields of billions of human beings, producing uncountable numbers of progeny, infecting more people at an accelerating rate.  The virus is stronger and thriving thanks to those features, and doing very well thank you very much."  It is also possible, he observed, that natural selection could be working through the viral pandemic attack on human beings to make the human species more resistant to SARS-CoV-19, which would be a constructive process in improving the functional complexity of the human immune system.

Egnor responded by claiming that Myers fails to see how the evolution of SARS-CoV-2 by natural selection of chance variation presupposes the intelligent design of those animal species (bats and humans) that serve as hosts for this parasitic virus, which cannot be explained by undirected evolution.  It is not even clear that viruses are living beings, because unlike living species, viruses cannot reproduce themselves on their own.  They reproduce only by parasitically using the metabolic machinery of the living cells that they invade.  And if viruses are not alive, then the evolution of viruses through random mutation and differential reproduction does not show the evolution of life.  "The coronavirus's evolution--the pandemic--depends on the living specified complexity of humans and bats.  Intelligent design in nature is the prerequisite for all natural selection--nature without teleology would be chaos, and no evolution at all."

Egnor claimed that his point here was recognized by Aristotle.  "Aristotle saw this in his definition of chance in nature--chance is the accidental conjunction of purposeful events.  Without purpose there can e no chance.  His example is instructive: he considered a farmer who ploughs his field and by chance discovers a treasure buried by someone else.  The treasure is discovered by chance, but everything else--the farmer's ownership of the field, his decision to plough it, the accumulation and burial of the treasure by the other man--is purposeful, and in fact the only reason the accident of discovery happened is because it is embedded in a world of purpose.  Chance can't happen--the word has no meaning--in an entirely accident world.  Chance presupposes design."

Notice what Egnor does here: he jumps from claiming "intelligent design in nature" to Aristotle's account of human intelligent design.  Here he employs the sophistical technique that runs through the intelligent design rhetoric of the Discovery Institute--the fallacy of equivocation in conflating human intelligent design, which we know by ordinary experience, and divine intelligent design, which we do not know by ordinary experience.  I have written about this here and here.

Notice also that in saying that viruses show how "natural selection corrodes and destroys life and plays no role in creating it," Egnor ignores that fact that most viruses support life in mutualistic relationships with plants and animals.  So, for example, we know that viruses are part of the human microbiome in the human gut, and that some parts of the human genome originated from viruses.

Egnor also ignores the fact that even if viruses are not living, other infectious pathogens--such as bacteria, fungi, protozoa, and helminths (worms)--clearly are living things; and they evolve by natural selection just as viruses do.

Contrary to Egnor's argument, our explanation of the evolution of SARS-CoV-2 and other parasitic pathogens by natural selection does not depend upon any assumption of divine intelligent design.


Any scientific account of the COVID-19 pandemic must explain why the SARS-CoV-2 virus is so good at being a bad virus.

In the scientific writing, it is common to see it said that the SARS-CoV-2 virus is better than the SARS-CoV virus, because SARS-CoV-2 is much more effective than SARS-CoV in successfully infecting host cells (Cyranoski 2020).  SARS-CoV-2 is good at forcing entry into human cells because this virus has a receptor-binding domain that has evolved for a particularly snug fit with the membrane of human cells in the upper respiratory tract and the lungs.

But this good functional complexity of SARS-CoV-2 makes it a bad virus for us.  What's good for this parasitic virus is bad for its human hosts.

This manifests the general character of Darwinian ethics.  There is no cosmic good for all living beings, because what is good is relative to each species, and what is good for one species can be bad for other species.

It is possible, however, for different species to enter relationships of symbiotic accommodation in which one species cooperates with another for mutual benefit.  And so, for example, the viruses and bacteria in the human gut benefit themselves even as they benefit their human host.  In fact, the number of these viruses and bacteria in the human body exceed the number of human cells.  Walt Whitman was right: "I am large, I contain multitudes" (Yong 2016).

To see why SARS-CoV-2 is so good in causing a bad pandemic, one needs to follow the virus through the five steps in his invasion of human cells (Cyranoski 2020).

   An Electron Microscopic Image of  SARS-CoV-2 Viruses Showing the "Corona" of Spike Proteins

First, one of the virus's spike proteins has a special receptor binding domain that binds to a receptor enzyme on the surface of human cells, which is called angiotensin converting enzyme (ACE2).  This enzyme helps to regulate blood pressure, which is good for us, but it's bad for us when this enzyme is used by the virus as the first step in its invasion of our cells.

Second, furin or another enzyme on the surface of the human cell breaks the spike protein at one of its cleavage sites.

Third, this releases small chains of amino acids that fuse the viral membrane with the membrane of the human cell.

Fourth, the fusion of the membranes allows the virus's RNA to enter the human cell, where it hijacks cellular machinery to produce more viral RNA and proteins that are assembled into new viral particles.

Fifth, the new viral particles break out of the human cell, and these new particles can then either attack other cells or leave the body and infect other people.

While the four coronaviruses that cause common colds are most successful in attacking the upper respiratory tract, and the MERS-CoV and SARS-CoV viruses are most successful in attacking cells in the lungs, the SARS-CoV-2 viruses are good at doing both, which makes them more effectively infectious.  This might explain the differences in symptoms.  If the virus starts in our nose or throat, and does not go into the lungs, this might produce a cough and fever, but not much more.  If the virus gets into our lungs, the attack on our respiratory system might become more severe, and even kill some of us.

So, for these and other reasons, SARS-CoV-2 is good at being a bad virus.


Some of the scientists who are studying SARS-CoV-2 and looking for a way to fight it are Christians, who are also trying to understand how the Bible might explain the spiritual meaning of this virus and the pandemic that it has caused.  Perhaps the most prominent of these Christian scientists is Francis Collins.  As the Director of the U.S. National Institutes of Health, Collins is supervising most of the research studying the COVID-19 pandemic and looking for a vaccine.  He is famous as the former leader of the Human Genome Project.  He is also famous for arguing that natural science and religious faith are not in conflict, because science and faith can actually reinforce one another.  A critical part of his argument is that religious believers who reject Darwinian evolution as atheistic are mistaken, because Christians can accept the scientific truth of evolution while seeing natural evolution as God's way of carrying out His creative plan.  To promote this kind of thinking, he founded BioLogos as an organization defending the idea of "evolutionary creation."  Last week, Collins was honored as the 2020 Templeton Prize Laureate for promoting progress in religious thought through science.  (The Templeton Prize website has a lot of material on this.)

I have written a series of posts on Collins as a theistic evolutionist hereherehereherehereherehere, and here.

At BioLogos, there is a podcast with Collins on "Where Is God in a Pandemic?"  He says that he has been troubled by the old question as to why God permits evil and suffering--such as a pandemic.  He says he finds consolation in two Biblical verses.  Psalm 46:1-2 promises "God is our refuge and strength, a very present help in trouble.  Therefore will not we fear."  Joshua 1:9 commands: "Be strong and of good courage; be not afraid, neither be thou dismayed; for the Lord thy God is with thee."

Collins does not hold God responsible for the pandemic.  He does not suggest that God is using the pandemic to punish us.  Collins probably agrees with Jim Stump, Vice President at Biologos, on this point.  As I have indicated in a previous post, Stump argues that God does not intentionally design natural evils like viral pandemics, which actually arise as unavoidable side effects of the naturally good world that God has created.  Human life as we know it would be impossible without viruses.  Most viruses on Earth are infecting bacteria and thus slowing down their reproduction, so that rapidly reproducing bacteria do not overwhelm us.  But for viruses to do that, they must mutate rapidly, and that rapid mutation can sometimes create viruses--like SARS-CoV-2--that are dangerous to human beings.  Evolution creates trade-offs in which we have to take the bad with the good.

Collins and Stump reject the traditional way in which some Christians have solved the problem of natural evil by saying that it's a consequence of the Fall.  Adam and Eve were created by God to live in a naturally good world, free from death and suffering, but when they yielded to the temptation of the serpent in the Garden of Eden, they sinned, and God's curse on them for their sin included a curse on nature, so that human beings would henceforth suffer and die from natural threats to life, including deadly viruses.  In this way, the COVID-19 pandemic is God's punishment for our Original Sin inherited from Adam and Eve.

In this podcast, Gary Bates of Creation Ministries International asserts the literal truth of the Fall in Genesis 2 as the explanation of the COVID-19 pandemic.  Most viruses are beneficial for human beings, but some become bad, and this arises as a consequence of God's curse on Adam and Eve.

Although a scientific creationist like Bates (or Ken Ham) would disagree with theistic evolutionists like Collins and Stump on this point, they all agree that as Christians they can take consolation in their faith that they will be redeemed for eternal life after death, and therefore they need not be thrown into despair by the pandemic's reminder of human mortality.

They also agree that in responding to the pandemic, Christians should follow the guidance of the natural scientists--the virologists and epidemiologists--studying the pandemic.

They also agree that since Christians believe that all human beings are "created in the image of God," this gives ultimate value to every human life, and therefore the governmental orders for lockdowns for minimizing COVID-19 deaths must be obeyed, regardless of the catastrophic economic costs.  To engage in a cost-benefit moral analysis to see if the economic costs of the shutdown outweigh the health benefits would violate Christian morality.

But is that really true?  Shouldn't Christians be morally concerned about the devastating human costs of lockdowns--including the human lives that will be lost or ruined as a consequence of the global Great Depression caused by the lockdowns?


Andersen, Kristian, et al. 2020. "The Proximal Origin of SARS-CoV-2." Nature Medicine 26:450-52.

Cyranoski, David. 2020. "Profile of a Killer Virus: The Complex Biology Powering the Coronavirus Pandemic." Nature 581:22-26.

Gorbalenya, Alexander, et al. 2020. "The Species Severe acute respiratory syndrom-related coronavirus: Classifying 2019-nCoV and Naming It SARS-CoV-2."  Nature Microbiology 5:536-544.

Yong, Ed. 2016. I Contain Multitudes: The Microbes Within Us and a Grander View of Life. New York: HarperCollins Publishers.

Monday, May 25, 2020

The CDC Lowers Its Estimate of the COVID-19 Infection Fatality Rate

Two months ago--in the third week of March--Trump and many of the state governors ordered a mandatory lockdown of the U.S. economy, while Prime Minister Johnson did the same in the U.K.  They did this because they were persuaded by some epidemiological models that without such a lockdown there would be up to 2.2 million deaths from COVID-19 in the U.S. and 510,000 deaths in the U.K.  These estimated death rates were based on the assumption that COVID-19 would be at least as lethal as the 1918 flu pandemic.

In my posts in March and April, I argued that there were at least three problems with the reasoning for these lockdown policies.  First, the estimates of the infection fatality rate for COVID-19 were unreasonably high.  Second, the assumption that without a mandatory lockdown people would not voluntarily change their behavior to mitigate the pandemic was implausible.  Third, the people advocating the lockdown had not engaged in any ethical analysis that would weigh the likely human benefits of a lockdown against its likely human costs, and so they never considered the possibility that the costs of a lockdown might exceed its benefits.

Now, a few days ago, the CDC has issued a new statement of its "COVID-19 Pandemic Planning Scenarios."  This statement is silent about the second and third problems.  But it implicitly recognizes the first problem.  In March, Dr. Anthony Fauci testified to Congress that about 1% of the people infected with the SARS-CoV-2 virus could die.  At the same time, the Imperial College model in the U.K. estimated that 0.9% of those infected would die.  In the new statement from the CDC, however, the "best estimate" scenario assumes a symptomatic case fatality rate of 0.4%; and since it also assumes that over 35% of the people infected show no symptoms, the total number of infections must be more than 50% higher than the symptomatic cases, which implies an infected fatality rate of around 0.3%.

This 0.3% is an overall fatality rate.  The rate is much lower for younger people and much higher for older people.  The CDC estimates a symptomatic case fatality rate of 0.05 for people younger than 50, 0.2% for people between 50 and 64, and 1.3% for people over 65.  Most of the deaths have been among older people in poor health, particularly those in nursing homes.  This supports a policy of protecting older people with prior medical conditions while leaving all others more free to move around.

The higher estimates of the fatality rate in March predicted millions of Americans would die without a shutdown, the lower estimates today would say that hundreds of thousands might have died without a shutdown.

We also have evidence now confirming the second problem with the lockdown policy.  Studies using various kinds of "big data" show that people in the U.S. started to restrict their travel dramatically in early March to mitigate the pandemic, which began before the mandatory orders were in place.  Now, we have similar evidence that beginning in late April, people have been travelling more even before the state governors began loosening their lockdowns.

We can also see now that people are confronting the third problem--the failure to weigh the costs and benefits of mandatory lockdowns--because the move to lift the lockdowns implicitly recognizes that these lockdowns are unsustainable because their costs exceed their benefits.

The general lesson from all of this is that when people understand what kind of pandemic they are facing, their behavioral immune system will motivate them to spontaneously change their behavior in adaptive ways to mitigate the health costs of the pandemic through social distancing, while also securing the social benefits of freedom of movement.

Wednesday, May 20, 2020

COVID-19: How Bad Is It Today?

Many of us begin each day now by checking the latest numbers for the COVID-19 pandemic.  Today, it's reported that the total number of deaths worldwide is 322,483 and for the United States 91,921.  Some epidemiological models are predicting over 110,000 deaths for the U.S. by early June.  Dr. Fauci has predicted the final number of deaths for the U.S. could approach 200,000.

Those are disturbing numbers.  But the obvious question is: Compared with what?

In 2017, 50 million people died around the world.  The leading causes of death were cardiovascular diseases (17.80 million) and cancers (9.56 million).  Other causes included road injuries (1.24 million), suicide (800,000), homicide (400,000), and drowning (295,000).  Compared with these numbers, the numbers of deaths from COVID-19 don't seem so shocking.  Instead of worrying about the SARS-CoV-2 virus, I should be worried about dying in a car accident every time I drive to the grocery store.

But then maybe the appropriate comparison is with death rates for infectious diseases.  For most of human history, infectious disease was the leading cause of death.  Only in the last 100 years, have the degenerative diseases taken the lead, as the death rate for infectious disease has fallen dramatically (at least for the developed countries).  Nevertheless, even when infectious diseases are not the leading cause of death, they can still be shockingly deadly when their outbreaks become severe.

So how does COVID-19 compare with other pandemics and epidemics over the past 100 years?

The yearly death rate worldwide for a typical seasonal flu ranges from 290,000 to 650,000.  In 2017-2018, the U.S. had a high severity season in which over 80,000 people died from the flu.  So, clearly, COVID-19 is going to be worse than a typical seasonal flu.

The worst flu pandemic was the H1NI flu outbreak in 1918-1920, which killed 20-50 million people around the world and about 675,000 in the U.S.  The equivalent death toll today for the U.S. as a proportion of the population would be 2,145,000.  There is no reason to believe that the deaths from COVID-19 will be anywhere close to that.

In 1957-1958, the Asian Flu pandemic killed 1.5 million people worldwide and 116,000 in the U.S.  The equivalent numbers as a proportion of the population today would be 3.9 million deaths worldwide and 220,430 deaths in the U.S.  It seems unlikely that COVID-19 will surpass those numbers.

In 1968-1969, the Hong Kong Flu pandemic killed over 1 million people worldwide and over 100,000 in the U.S.  The equivalent numbers today would be 2.2 million worldwide and 164,500 in the U.S.  It seems possible that the death toll for COVID-19 could surpass that number for the U.S.

In 2009-2010, the Swine Flu pandemic (caused by a new strain of the H1N1 flu virus) killed about 280,000 people worldwide and about 13,000 in the U.S.  COVID-19 is much deadlier than that.

Although COVID-19 is often said to be "unprecedented," these numbers show that previous pandemics of infectious disease have been at least as deadly and in some cases much more deadly than COVID-19.  It is surely "unprecedented," however, in one respect--in that the shutdown of all "non-essential" social and economic activity has never been done before.  In these other pandemics, some schools, factories, and workplaces were shut down temporarily, and sick people were expected to quarantine themselves in their homes, but there was no general governmentally mandated shutdown like that initiated in March and April.

Previously, it had always been assumed that the human costs of such a shutdown would far exceed the human benefits for controlling a pandemic.  Do we have any reason to believe that this assumption was mistaken?  Has anyone proven that the likely benefits of such a shutdown to mitigate the COVID-19 pandemic are much greater than the likely costs?

As I have indicated in a previous post, I can't find any evidence that anyone has actually tried to perform such a cost-benefit analysis in any rigorous way.

Isn't it incomprehensible that we have decided to intentionally create a global Great Depression that will devastate human life without weighing the likely human suffering this will bring?


In his comment on this post, Roger Sweeny has made a good point--that the COVID-19 death numbers in the United States are probably more reliable than the flu death numbers, because the flu death numbers are only statistical estimates by the CDC, and the experience of doctors suggests that far fewer people die from seasonal flu than is reported by the CDC.  If this is true, then there is no comparison between flu deaths and COVID-19 deaths, because COVID-19 is much more deadlier.

The CDC's guidelines for certifying deaths due to COVID-19 look rigorous to me.  In filling out death certificates, doctors and coroners must distinguish between the "cause of death" (Part 1) and "significant conditions contributing to death" (Part 2).  And under Part 1, they must begin with the "immediate cause" and then move back through the list of conditions leading to that cause ending with the "underlying cause"--the disease or injury that initiated the events resulting in death.  So, to certify a death due to COVID-19, this must be identified as the underlying cause.

Here is one of the hypothetical scenarios presented in the CDC guidelines:
"A 77-year-old male with a 10-year history of hypertension and chronic obstructive pulmonary disease (COPD) presented to a local emergency department complaining of 4 days of fever, cough, and increasing shortness of breath.  He reported recent exposure to a neighbor with flu-like symptoms.  He stated that his wheezing was not improving with his usual bronchodilator therapy.  Upon examination, he was febrile, hypoxic, and in moderate respiratory distress.  His chest x-ray demonstrated hyperinflation and his arterial blood gas was consistent with severe respiratory acidosis.  Testing of respoiratory specimens indicated COVID-19.  He was admitted to the ICU and despite aggressive treatment, he developed worsening respiratory acidosis and sustained cardiac arrest on day 3 of admission."
"In this case, the acute respiratory acidosis was the immediate cause of death, so it was reported on line a.  Acute respiratory acidosis was precipitated by the COVID-19 infection, which was reported below it on line b, in Part 1.  The COPD and hypertension were contributing causes but were not a part of the causal sequence in Part 1, so those conditions were reported in Part 2."
In some cases, COVID-19 can only be identified as the "probable" underlying cause:
"In cases where a definite diagnosis of COVID-19 cannot be made, but it is suspected or likely (e.g., the circumstances are compelling within a reasonable degree of certainty), it is acceptable to report a COVID-19 on a death certificate as 'probable' or 'presumed.' In these instances, certifiers should use their best clinical judgment in determining if a COVID-19 infection was likely.  However, please note that testing for COVID-19 should be conducted whenever possible."
There have been reports--broadcast by Fox News--that hospitals and doctors are fraudulently inflating the numbers of COVID-19 cases and deaths because of the financial incentives from Medicare--$13,000 for every COVID-19 patient and $39,000 for every COVID-19 patient on a ventilator.  Although there might be some cases of such fraud, it's unlikely to be widespread because there are severe penalties for deceptively "upcoding" patients to increase Medicare payments.

Sunday, May 10, 2020

The Darwinian Moral Dilemmas of Infection-Avoidance Behavior in Humans and Other Animals

Shelley Luther was fined and sentenced to seven days in jail when she opened her hair salon in Dallas, which violated Governor Greg Abbott's COVID-19 lockdown orders.  The judge who sentenced her told her that she was selfish for putting her self-interest ahead of the public good.  She responded that she was not being selfish in opening her salon so that she could feed her children, and that her employees also needed to work to be able to afford food for their children.  In response to the public outrage over her punishment, Governor Abbott revised his orders, so that incarceration would not be a punishment for violating his orders.  Recently, he has loosened the lockdown so that hair salons can open.

This illustrates the Darwinian moral dilemmas that arise when animals fighting against infectious diseases face a trade-off between their need for social distancing and their need for social interaction.

As shaped by Darwinian evolution, animals have two distinct systems for defending themselves against infectious diseases.  One is the physiological immune system of the body that detects pathogenic organisms (bacteria, viruses, fungi, and protozoa) that have invaded the body and then targets them for destruction or mitigation.

The other is the behavioral immune system that includes those behavioral strategies by which animals attempt to prevent infectious pathogens from invading their bodies (Schaller 2016).  One of those behavioral strategies is social distancing: social animals who can be infected by social contact with infected individuals can protect themselves by avoiding contact with those individuals who appear to be infected.  But as social animals who naturally benefit from social interaction, social distancing creates a dilemma in which the animal must weigh the health benefits of avoiding infection against the social costs of being isolated from others.  That's the Darwinian evolutionary explanation for the moral debate we are now having over the COVID-19 lockdown.

Humans are not the only animals who engage in social distancing to avoid infectious diseases (Curtis 2014; Hawley and Buck 2020).  Since social insects are densely packed into large colonies, it is easy for contagious diseases to spread through a colony.  When this happens, ants change their behavior to slow the transmission of the disease.  Among some ant colonies, the older ants are assigned to risky jobs foraging outside the nest, while the younger ants stay inside the nest to care for the queen who lays all the eggs and for the developing brood.  If foraging individuals become sick from a fungal infection, they spend more time outside the nest, thus self-isolating themselves, and the indoor workers move the brood farther inside the nest so that they are far away from the foragers (Stroeymeyt et al. 2018).

Bullfrog tadpoles do not swim with other tadpoles that have been parasitized (Kiesecker et al. 1999).  Social lobsters do not share their dens with lobsters infected with a deadly virus (Behringer et al. 2006).  And olive baboons refuse to mate with partners infected by a sexually transmitted virus (Pacienca et al. 2019).

Sometimes animals must balance the need for social distancing against the need for social interaction.  Healthy vampire bats will not groom sick bats, but they will continue to share their food with the sick bats.  It's as though food-sharing is an essential service that must be maintained even when there's a risk of spreading infectious disease.  Moreover, bat mothers are inclined to care for their sick offspring, so that parental care outweighs social distancing (Stockmaier et al. 2020).  Similarly, among mandrills (a kind of monkey found in the African rainforest), healthy individuals will care for their sick family members, but they will avoid sick individuals unrelated to them (Poirotte et al. 2020).

Some animals are so tightly bound to one another in their social lives that they find social distancing too costly, even when it might protect them from infectious diseases.  So, for instance, among the highly social banded mongooses, there is no avoidance of diseased individuals (Fairbanks, Hawley, and Alexander 2015).

We too are such intensely social animals that we cannot flourish--we cannot satisfy our deepest natural desires--without social interaction with our families, our friends, and our larger community of associates.  For that reason, the COVID-19 lockdowns around the world will provoke a natural resistance from people claiming their natural rights to life and liberty.


Behringer, D.C., M.J. Butler, and J.D. Shields. 2006. "Avoidance of Disease by Social Lobsters." Nature 441: 421.

Curtis, Valerie A. 2014. "Infection-Avoidance Behaviour in Humans and Other Animals."  Trends in Immunology 35: 457-464.

Fairbanks, Bonnie, Dana Hawley, and Kathleen Alexander. 2015. "No Evidence for Avoidance of Visibly Diseased Conspecifics in the Highly Social Banded Mongoose (Mungos mungo)." Behavioral Ecology and Sociobiology 69: 371-381.

Hawley, Dana, and Julia Buck. 2020. "Social Distancing Works--Just Ask Lobsters, Ants, and Vampire Bats." The Conversation, April 3.

Kiesecker, J.M., D.K. Skelly, K.H. Beard, and E. Preisser. 1999. "Behavioral Reduction of Infection Risk." Proceedings of the National Academy of Sciences USA 96: 9165-9168.

Pacienca, F.M.D, et al. 2019. "Mating Avoidance in Female Olive Baboons (Papio anubis) Infected by Treponoma pallidum."  Science Advances 5: eaaw9724.

Poirotte, Clemence, and Marie Charpentier. 2020. "Unconditional Care from Close Maternal Kin in the Face of Parasites." Biology Letters 16: 20190869.

Schaller, Mark. 2016. "The Behavioral Immune System." In David M. Buss, ed., The Handbook of Evolutionary Psychology, 1:206-224. Hoboken, N.J.: John Wiley and Sons.

Stockmaier, Sebastian, Daniel Bolnick, Rachel Page, and Gerald Carter. 2020. "Sickness Effects on Social Interactions Depend on the Type of Behaviour and Relationship." Journal of Animal Ecology, February 28.

Stroeymeyt, Nathalie, et al. 2018. "Social Network Plasticity Decreases Disease Transmission in a Eusocial Insect." Science 362: 941-945.

Tuesday, May 05, 2020

COVID-19 Shutdowns By Consent of the Governed? David Hume's Maxim

How do we explain the amazing events of the past eight weeks?  Billions of human beings on planet Earth have been locked in their homes, as much of their social and economic life has been shut down, by orders from their rulers, in response to the COVID-19 pandemic.  Now many people in some parts of the world are beginning to show some freedom of movement, trying to return to a more normal life, but with warnings from governmental experts that such free movement will spread viral infections and elevate the death toll.

David Hume offered one way to explain this, in the first paragraph of his essay "Of the First Principles of Government":
"Nothing appears more surprising to those, who consider human affairs with a philosophical eye, than the easiness with which the many are governed by the few; and the implicit submission, with which men resign their own sentiments and passions to those of their rulers.  When we enquire by what means this wonder is effected, we shall find, that, as FORCE is always on the side of the governed, the governors have nothing to support them but opinion.  It is therefore, on opinion only that government is founded; and this maxim extends to the most despotic and most military governments, as well as to the most free and popular.  The sultan of EGYPT, or the emperor of ROME, might drive his harmless subjects, like brute beasts, against their sentiments and inclination: But he must, at least, have led his mamalukes, or praetorian bands, like men, by their opinion."
Hume's maxim that "the governors have nothing to support them but opinion" sounds like John Locke's claim that governmental authority arises from the consent of the governed, or the argument of Michael Tomasello and John Searle that the social reality of institutions depends on our subjective belief that institutions are authoritative.  (I have written about that here.)

Political rulers cannot govern their people by force alone, because they depend upon the voluntary obedience of the people or at least acquiescence to their orders.  "Force is always on the side of the governed," in the sense that if most of the people in a political order resisted the commands of their rulers, the political order would collapse.  Even despots or military dictators cannot rule by brute force if they do not have the support of some crucial social groups, or "minimum winning coalitions," which I have written about here.

We can see Hume's maxim confirmed by what has happened with the COVID-19 shutdowns.  Governments have commanded shutdowns by executive orders.  In the United States, these orders have come mostly from state governors, following guidelines from Trump's White House and federal agencies (like the CDC).  But all of this depends on the voluntary obedience of the people; and as I have argued in earlier posts, the shutdowns will end when people refuse to obey them.

We now have the big data about the patterns of human movement--from Foursquare and Apple--that show this.  Requests for directions in Apple Maps began to decline dramatically in early March, even before the governmental lockdown orders, because once people heard about the COVID-19 pandemic, they decided voluntarily that staying at home and social distancing were prudent behaviors to minimize the spread of infections.  But then, beginning in early or mid-April, people in some countries (particularly, the United States and Germany) have decided to travel more, even if  this meant disregarding the governmental orders.

For example, in my home state of Michigan, Governor Gretchen Whitmer imposed some of the most severe restrictions on travel--even prohibiting people from travelling to visit family and friends.  But if you go to the data for Michigan provided by Apple, you will see the Michiganders began increasing their travel in April, disobeying the Governor's orders.  Last Sunday, I saw over 40 of my neighbors gathering for a church service in violation of the Governor's order that in-person church services are illegal.  She cannot enforce her orders.

The data collected by Foursquare shows the same pattern in shopping and social movement.  In early March, there was a steep drop in trips to casual dining chains, bars, movie theatres, and gyms, and there hasn't been much movement yet to return to pre-COVID-19 levels.   But travel to gas stations, auto shops, big box stores, and discount stores is back up to normal levels.  During this same time--March and April--there was an increase in visits to hardware stores to buy paint, lawn, and gardening supplies, because people have decided to spend their time working around the house and gardening.

The Foursquare data show regional differences in these patterns of movement--people in rural areas and in the Midwest are moving more quickly out of the lockdowns than are those in urban areas and in the West and Northeast.  Here we see what Friedrich Hayek identified as local knowledge--in deciding how to adapt their social interactions to the contingencies of time and circumstance, people spontaneously generate patterns of behavior that are best for them, without any central planning from government, which lacks the knowledge that is dispersed among millions of people facing their unique and variable circumstances of action.

So in this way, deciding how best to adapt our behavior to the challenges of a viral pandemic arises more from the bottom-up interactions of individuals acting for their interests than from the top-down dictates of central planners in government.  The influence of central planners in this evolutionary process of adaptive behavior comes more from persuasion than from coercion.  In this case, the public health bureaucrats can tell us what they think they know about the SARS-Cov-2 virus--how it spreads, its virulence, and which groups are most at risk of being killed by it--and they can make recommendations about how best to fight the virus.  But their influence will depend on how successful they are in persuading us to voluntarily comply with their advice.

Because these governmental experts--even when they are backed up with mandatory orders from political executives--cannot succeed unless they win our voluntary consent.

"The governors have nothing to support them but opinion."

Thursday, April 30, 2020

The Evolutionary Libertarianism of Justin Amash and His Presidential Candidacy

As I anticipated in some posts last year (here and here), Justin Amash has announced that he is running for the American presidency by seeking the nomination of the Libertarian Party.  Last year, he became the first Republican member of Congress to call for the impeachment of Donald Trump; and then he left the Republican Party to become an Independent.  Now, he has become the first member of the Libertarian Party to be serving in the Congress.  Having denounced the two-party system in the United States as corrupt, he now offers his race for the presidency as an alternative to that system.  He has explained his reasoning for doing this in an interview with Reason magazine's Matt Welch.

Amash's decision raises lots of questions.  Is there anything distinctive about his libertarian political thought?  Can he defend his libertarianism as rooted in some American political traditions?  Can he answer those members of the Libertarian Party who doubt that he speaks for the principles of their party?  If he is nominated by the Party, does he have any realistic chance of winning?  Or is it more likely that he will only take away enough votes from Joe Biden to allow Trump to win?

Amash regularly quotes Friedrich Hayek or paraphrases his ideas in a way that suggests that he has actually read Hayek with some care.  Most often Amash appeals to one of Hayek's central ideas--the evolutionary emergence of social order through the spontaneous interaction of a number of people who each possess only bits of local knowledge.  In this way, markets and market-like orders allow for the use of dispersed knowledge that can never be held in the minds of central planners, who falsely pretend to have the knowledge necessary for planning everything by design.

In "The Pretence of Knowledge," Hayek's Nobel Prize acceptance speech, Hayek said: "To act on the belief that we possess the knowledge and the power which enable us to shape the processes of society entirely to our liking, knowledge which in fact we do not possess, is likely to make us do much harm."  Hayek and the other Austrian economists rejected the concept of economic equilibrium, because they saw the economy as an everchanging evolutionary process that is naturally prone to shocks and disruptions that require the spontaneously adaptive adjustments of free markets, which are impeded by governmental interventions.  (I have defended Hayek's evolutionary liberalism herehere, and here.)

Amash expresses the same idea in his interview with Welch.  In explaining what he means by the need for "humility with respect to how much one individual knows about things," he says: "What you really have right now are two presidential candidates who think they know everything and want to run everything.  And you see the mess that's happening right now just with the coronavirus relief, where you get this one person thinking they know everything, instead of using the type of knowledge that exists out among the public, which is the knowledge of time and circumstances, things that only people on the ground know, that no one in Washington can know, or no one in the state Capitol can know."

The reference to someone "in the state Capitol" is probably pointing to Michigan Governor Gretchen Whitmer, because Amash has criticized her (on his Facebook page, April 11) for her severely restrictive executive orders shutting down the state in response to the COVID-19 pandemic.  "Sensible instructions to practice social distancing, wear masks, and stay at home already do most of the work to reduce the virus's spread," he observed.  "By pushing too far, the governor undermines her own authority and increases the likelihood people will not follow reasonable guidelines.  At the very least, government officials need to trust people with matters that are extremely low risk. . . . The governor needs to allow communities and businesses to establish safety procedures based on actual conditions.  Not every place has the same risks, and it's not good governance, good health science, or good economics to pretend they are."

Amash implies here that instead of a mandatory governmental lockdown of social and economic life, the governor should follow the example of South Dakota or Sweden, where public health officials have strongly recommended that people voluntarily restrict their social movement to minimize the spread of the virus, but without any coercively imposed lockdown.  This allows individuals to exercise personal responsibility and to spontaneously generate a reasonable response to the pandemic based on what they know about the local circumstances of their life.  Governors like Whitmer are foolish if they "think they know everything and want to run everything."

Amash roots his evolutionary libertarianism in the principles of the American founding--particularly as expressed in the Declaration of Independence and the Constitution.  In doing this, he follows the example of the Libertarian Party Platform of 2018, which echoes the language of those two founding documents.

From the Declaration, Amash draws the fundamental principle that "the purpose of government is to secure our rights," as he tells Welch.  Amash sees the Constitution as securing the rights of the people by designing a government that is divided and limited in its powers--as he says to Welch, "that means allowing legislators to legislate, and keeping the executive branch in check, and having a court that does its job interpreting and deciding cases."

He laments the great departure from this constitutional design that comes from the failure of the Congress to act as the chief deliberative body, a failure that he attributes to the current system of partisan lawmaking in which most of the laws are written by the Speaker of the House and the Majority Leader of the Senate consulting with the White House.  Most members of the Congress have no chance to deliberate about the laws because they are forced to vote as they are instructed by their party leaders.  Many times, they are not even given enough time to read what they're voting on.  Amash is famous for being one the few members of Congress who refuses to vote on legislation if he has not be given time to actually read it.

As one of Amash's constituents in the 3rd Congressional District in Michigan, I can testify to the fact that when he speaks to his constituents, he repeatedly tries to impress on them how they should be concerned about the constitutional process of congressional deliberation and how excessive partisanship has impeded this deliberative process.  But I can also report that in his public meetings, his audiences often seem uninterested in this.  The constitutional process of deliberating about laws is just not exciting for most voters.  (Matt Welch has made the same observation.)  If Amash tries to speak this way in his presidential campaign, we will have to see if he can overcome this problem.

There are now over 21 candidates running for the presidential nomination of the Libertarian Party.  A half dozen or more of these have been in a series of debates sponsored by the Libertarian state party organizations.  Based on some straw polls, Jacob Hornberger appears to have the most support among party members, although the delegates to the national convention are not pledged to any candidates, and the nominee will be whoever wins the majority of the delegates at the convention.

Some of the candidates and other members of the party have criticized Amash's decision to enter the race for two reasons.  First, some say that his entry comes too late--less than a month before the national convention--and that he chose to delay so that he would not have to participate in any debates.  The debates are intense--with participants being vigorously questioned about their positions, which allows party members to judge the rhetorical skills of the candidates and to decide whether they are rightly defending libertarian principles.  By not participating in the debates, Amash escapes this scrutiny.

In his interview with Welch, Amash admits that he should have announced his presidential campaign earlier, perhaps even in July of last year when he left the Republican Party.  But he says that he needed a long time to make up his mind.  He thought that he could be reelected to his sixth term in Congress, and he was not sure he wanted to give that up.

The second criticism is the charge that Amash is not a real libertarian who has shown commitment to the principles of the Libertarian Party.  Hornberger has a series of blog posts/podcasts pointing to Amash's deviations from true libertarianism, which claim to show that Amash is not a pure libertarian but rather a libertarian conservative who blends some libertarian themes with conservative positions.  Hornberger argues that Amash will speak the libertarian mantra of "liberty, limited government, and fiscal responsibility," but then he often violates these principles.

The clearest recent example of this is Amash's support for at least part of the COVID-19 stimulus packages.  For the first stimulus legislation, Amash voted "present"--that is, he refused to vote either for or against it.  He justified this by saying that the party leadership did not distribute copies of the bill early enough for everyone to read it before the vote.  He also said that he opposed those parts of the bill that provided bailouts for business, because he regarded this as "crony capitalism" or "corporate welfare"--taxpayer money going to those businesses with the most political clout.  And yet he favored the stimulus money going out as checks to individual citizens.  Actually, he thought all the money--over $2 trillion dollars--should have been spent as checks for individuals who needed this to help them through the economic crisis.

How is this libertarian?  Don't libertarians--Amash included--regularly condemn the endless increases in the national debt as an immoral burden--theft really--on the future generation of taxpayers that will have to pay off that debt?  During the first three years of Trump's administration, the national debt has skyrocketed to $24 trillion.  Now, the coronavirus stimulus packages are predicted to add another $6 trillion.  So soon the national debt will be over $30 trillion.  Who's going to pay that debt?  It will be paid by future taxpayers or by inflationary printing of money, or there will be national debt crisis, and in any of these cases, ordinary citizens will be impoverished by this.

I have not seen that Amash has answered this criticism.  But the way he speaks about the need for the federal government to send stimulus checks to everyone suggests that he sees this as a pragmatic compromise of his libertarian principles.  When people are facing another Great Depression caused by economic lockdowns mandated by government, they will demand that the government give them some relief.  Does this mean that Amash believes in a libertarian welfare state?

After all, Amash might point to Hayek's defense of a classical liberal welfare state in Part 3 ("Freedom in the Welfare State") of Hayek's Constitution of Liberty, which argues that a liberal social order might have to provide the security of a minimum income for all citizens.  I have written about the Nordic Social Democracies as models of the capitalist welfare-state.  Is this what Amash has in mind?  And if so, can he defend it as compatible with the principles of the Libertarian Party?  We'll see.

In his interview with Welch, Amash says that one reason for his delay in announcing his presidential run is that he wanted time for researching things and thinking through the political situation to see if he would have a chance to win the race, because he doesn't want to run if he's only going to be a "spoiler."

"I believe there are enough votes out there to win this race," he says.  Because if there are some Republicans and Democrats who are dissatisfied with their parties, and if there are many independents looking for an alternative to Trump and Biden, these are the voters whom Amash might win.  The Republican electoral losses since the 2016 election--including many losing candidates enthusiastically endorsed by Trump--suggests that Trump's core of solid supporters is a minority of the voters.  And if there's a high turn-out of anti-Trump voters, Trump will surely lose.

Amash also has a chance to pull over to his side one of the crucial groups for Trump--the pro-life evangelical Christians.  Amash is a serious Christian (Eastern Orthodox).  And he is a pro-life libertarian who believes that those not yet born have a right to life.  He does not, however, argue for making abortion illegal, although he does argue that there should be no federal funding for abortion.  Libertarians are divided over abortion because some believe those not yet born are "persons" with the right to life, while others do not accept this.  The Libertarian Party Platform declares: "Recognizing that abortion is a sensitive issue and that people can hold good-faith views on all sides, we believe that government should be kept out of the matter, leaving the question to each person for their conscientious consideration."

But why isn't Biden the best candidate to defeat Trump?  And what does Amash say to those who are warning that his candidacy will split the anti-Trump vote and thus allow Trump to win?

Amash says that Biden "frankly doesn't seem to be up to it."  I assume that Amash is here alluding to Biden's increasingly frequent lapses into incoherence in his speaking, which suggests some cognitive decline with aging.  This could become ever more disturbing for voters.  And the larger point here is that the contrast between Trump and Biden as the two oldest men to ever run for the presidency and Amash as an energetic 40-year-old must increase Amash's attractiveness.

Another potential problem for Biden is that one of his former staffers--Tara Read--has accused him of sexual assault when she worked for him 30 years ago.  Amash has said: "I think anyone is disqualified if they've engaged in some kind of assault, especially a sexual assault."  He has also said, however, that while the charges of sexual assault against both Trump and Biden are serious, he would not make this an issue in his campaign.

But all of these factors are less important in deciding Amash's chances for a win than the debate over the COVID-19 lockdown and its consequences.  We can foresee that by the end of this summer it will be clear that the lockdown has caused a global Second Great Depression.  Since both Trump and Biden have supported the lockdown as the only possible response to the pandemic, they will be held responsible for the Depression.

This will create an opportunity for Amash to point to this social and economic catastrophe as deliberately created by the leaders of both political parties, and he will have to set himself apart as the one politician who saw that the harm from the lockdown--the loss of life, liberty, and property--would far exceed any likely health benefits.  He will have to argue that the United States and other countries have dealt with deadly pandemics previously--like those of 1918, 1957, 1968, and 2009--without shutting down their social and economic life, and there was no good reason to order such a shutdown for this pandemic.  He might point to Sweden as pursuing the more reasonable strategy for achieving herd immunity through largely voluntary adjustments in social life in the face of a pandemic, and this would be the libertarian approach to a pandemic.

If Amash can make that argument, he might have a chance to win.