Salus populi suprema lex: Does that justify the COVID-19 lockdown?

Yesterday, I walked outside my home to the edge of my yard to talk with my next-door neighbor.  Although we were at least six feet apart, our brief meeting was a criminal act, because we violated Governor Gretchen Whitmer's Executive Order No. 2020-42, which declares: "all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited."  So that short meeting with my neighbor was an act of civil disobedience.

Tomorrow, my family and I will engage in another act of civil disobedience.  Along with thousands of others around the state of Michigan, we will drive to Lansing and go to the governor's mansion and the state capitol building, where we hope to create a massive traffic gridlock as a demonstrative protest against the Governor's executive order.  Many of those in the cars have lost their jobs and their businesses.  All of them have lost their rights to live and work.  For our protest assembly, under the Governor's order, we can each be fined up to $1,000 and be subject to criminal prosecution.

Okay, so there's no great heroism here.  This Drive to Lansing is no March to Selma.  It is only a modest protest against the violation of our rights to life and liberty.  But it is one sign of what is beginning to happen all around the United States and around the world as people face the destructive consequences of the global shutdown that threaten their lives and their livelihoods.  Such acts of civil disobedience express the natural right to resist oppressive governmental coercion.

Against such resistance, Governor Whitmer has invoked her power as governor of Michigan to declare a state of emergency and to issue all reasonable orders necessary to secure public safety or public health.  As I have indicated in previous posts, she does indeed have such powers by constitutional law and the state laws of Michigan.

Yesterday, President Trump said that he, not the governors, has the ultimate authority to determine COVID-19 public health policies for all the states.  "When somebody's president of the United States, he explained, "the authority is total, and that's the way it's gotta be."  "The authority is total"?  This is not true.  The Constitution does not give the president, or any other federal agents, total authority over public health.  Public health is part of the "police power" that is reserved to state and local governments.

The Supreme Court of the U.S. has been clear about this.  In Gibbons v. Ogden (1824), Chief Justice John Marshall identified "that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves.  Inspection laws, quarantine laws, health laws of every description, as well as laws regulating the internal commerce of a State . . . are component parts of this mass."

The standard for this broad police power that is reserved to the states, and which includes health laws and quarantine laws, is sometimes conveyed by a Latin maxim first stated by Cicero (De Legibus, 3.3.8):  Salus populi suprema lex esto.  "Let the safety (alternatively, health, welfare, or good) of the people be the supreme law."  As the supreme law, this law can override all other laws when it is necessary in an emergency to have an executive ruler exercise discretionary power in doing whatever is required to secure the public good.

John Locke quotes this same Ciceronian maxim as the standard for the executive power of prerogative, which is the "power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it" (Second Treatise, secs. 158-160).  Locke makes it clear, however, that the people grant this power to the executive as a public "trust" that will truly be used for the public good.  And if there is any doubt as to whether this power is being abused to deprive the people of their natural rights contrary to the public good, the people must judge this for themselves, which includes the "appeal to Heaven"--violent resistance to government (secs. 164-168).

So when a state governor like Whitmer invokes this emergency police power to do whatever is necessary to promote the public good, it is the right of the people to judge for themselvcs whether the governor's actions really do serve the public good.  In the present case, the question is whether the end justifies the means, because the end is good, and the means are rationally proportioned to the ends, so that the benefits of the end outweigh the costs of the means.

Or, more specifically, do the likely benefits from shutting down the social and economic life of Michigan outweigh the likely costs in depriving the people of Michigan of their rights to life, liberty, and property without due process of law?  And, if they do, then at what point do the likely costs of continuing the shutdown outweigh the likely benefits?  Those are the moral questions now being considered as state governors and citizens consider whether or when the shutdown should be lifted to allow the reopening of social and economic life in the states.

This moral cost-benefit analysis requires first that we weigh the benefits of saving some human lives through a shutdown.  To do that we must put a value on human life.  That might seem crass, but in fact we do that all the time when we engage in risky activities.  American regulatory agencies--like the Environmental Protection Agency--have to assign a value to human life in deciding whether the benefit of some reduction in the risk to life is cost-effective.  In tort law, judges and juries sometimes have to give human life some value in deciding on monetary damages for loss of life.  Typically, the assigned monetary value of human life ranges somewhere between $5 million and $10 million.

There is a good moral argument, however, for saying that we need to value not just life but years of life.  Surely the death of a healthy 25-year-old person, who might have expected to live for another 60 years, is a greater loss than the death of a severely ill 85 year old, who could not have expected to live much longer.  In contrast to the 1918 flu pandemic, which killed children and young adults as well as old people, the COVID-19 pandemic is predominantly killing older people in bad health.  Neil Ferguson, the British epidemiologist advising the UK government on their shutdown, has said that around half to two-thirds of the people who will die from COVID-19 would not otherwise have lived to the end of this year because of their pre-existing illnesses.  The lost value of these older lives with few years left to live might not be as great as the lost value of younger lives with many years of expected life left.

We also need to know how many lives are likely to be saved by a shutdown of our social and economic life.  To know this, we need to know infection rates, fatality rates, the effectiveness of social distancing and other measures, and the capacity of the healthcare system to provide care for the ill.  Until we have quick and extensive testing for COVID-19, we will not know infection rates, and without that we will not know fatality rates.  The "case-fatality-rate" that is being widely reported is almost meaningless, because most of the people infected do not show symptoms, or they show only mild symptoms, and thus they are not identified.  The number of people actually infected could be up to 10 times the number of people who have been identified.  And if that is so, the real fatality rate for COVID-19 would be much lower than the case fatality rates being reported.  The number of lives likely to be saved by a severe shutdown would then be much lower than what the proponents of a shutdown assume.

We also have to weigh the costs of coercively shutting down our social and economic lives.  One way to measure this would be to estimate the likely reduction in the Gross Domestic Product over the next year caused by a severe depression brought on by the shutdown.  This is not the total cost, however, because it ignores the human cost from reducing human liberty--such as the cost to me of being forbidden by the governor to have personal face-to-fact contact with my family, friends, and neighbors, or all kinds of private and public gatherings forbidden by the governor.

So let's do the math.  Economists Martin Eichenbaum and his colleagues offer this model.  Assume that each human life is worth $9.3 million.  Assume that their "optimal containment policy" increases the severity of the recession by reducing GDP over the next year by $2 trillion dollars, while saving 500,000 lives that would have been lost without the containment policy.  That comes to roughly $2 million dollars for each life saved, which is a bargain in saving a life worth $9.3 million.

But notice all of their dubious assumptions.  We have to assume that they are right in estimating the mortality rate for COVID-19 to be extremely high, even though they do not know the infection rate, and therefore they can't be sure they are right.  They also have to assume that the only alternative to their shutdown is doing nothing to fight the pandemic.  That is obviously false, because people will change their behavior in response to a pandemic to reduce the risks of infection and death: they will engage in social distancing and self-quarantines even without governmental coercion.  They also have to assume that the economic cost of their shutdown will be only $1 trillion in reduced GDP.

Consider an alternative scenario suggested by David Bernstein.  He indicates that the value of human life assigned by various regulatory agencies is usually no higher than $9 million.  He assumes that COVID-19 could kill as many as 480,000 people if there is no severe containment policy, and that containment measures could reduce this by half--saving 240,000 lives.  That's the benefit.

In calculating the costs, he assumes that containment measures would reduce GDP by one-half for one quarter of the year.  Since the GDP of the U.S. is about $21.5 trillion for a year, the containment measures would cost about $2.7 trillion.  Dividing that by 240,000 lives saved, we get a cost of about $11.2 million for each life, which is greater than the estimated value of a human life--less than $9 million.

So in the model of Eichenbaum and his colleagues, a severe shutdown to reduce the deaths from COVID-19 is justified, because while the costs are high, the benefits are even higher.  In the model of Bernstein, the conclusion is just the opposite: the costs of a shutdown outweigh the benefits.

Sure, I know, it's ridiculous to try to reduce this moral judgment to a mathematical calculation that appears precise even though it's based on speculative assumptions for which there is very little data.  But still in the political debate over whether the shutdown is justified, we all have to make some intuitive judgment based on what we know about the data and about our experience in our society.

Governor Whitmer is confident in the moral superiority of her judgment that she has correctly calculated what the public good demands.  But the people driving to Lansing tomorrow--and the many other Michigan citizens who agree with them--are demonstrating their judgment that she is wrong, and that the costs to life and liberty from her executive orders exceed any likely benefits.

As Locke said, when the question is "Who shall judge?" the answer is "The people shall judge."