Epidemics

Is It Paternalism to Protect You from the Plague?

|The Volokh Conspiracy |

I would not have thought it necessary to discuss this, but it has become a surprisingly widespread talking point that it is "paternalism" and a sign of an encroaching "nanny state" for government officials to take drastic actions to stop the spread of COVID-19. Perhaps this is not surprising since the American government has suddenly become much more interventionist in daily civic life, and there is no doubt that the government's recently announced policies are a restriction of what the founding generation would have characterized as our "natural liberty" to act as we wish unhindered by external constraint. It is certainly true that our normal freedoms are being restricted. But it is not paternalism for the government to take steps to curtail the spread of an infectious disease.

It is a basic tenet of classical liberalism that the government should not protect you from self-harm. "Paternalism" asserts that the government knows what is good for you and can take steps to make you do those things. It is paternalism for the government to tell you that you cannot imbibe noxious substances that will rot your brain. It is paternalism to tell you that you cannot indulge your hedonistic desires to the detriment of your productivity or your everlasting soul. It is paternalism to tell you that you cannot buy a Big Gulp. It is paternalism to tell you that you cannot get falling down drunk. It is paternalism for government officials to tell citizens that they may not develop and distribute a test to detect a new infectious disease. Your mom can tell you that you cannot run around the house with a pencil because you might poke your eye out. The government should not.

It is not paternalism to tell you that when you are falling down drunk you may not then get behind the wheel of a piece of heavy machinery and drive down public roads where you might crash into other innocent drivers or even into their stationary houses. It is not paternalism tell tell you that you may not indulge your hedonistic desires on my front lawn. It is not paternalism to tell you that you cannot walk around spreading an infectious disease to your unsuspecting fellow citizens.

Stopping the spread of infectious diseases is a long-standing core function of even very limited governments. From this country's very founding, the government was expected to inspect and detain those who might be arriving on our shores with infectious diseases. The government was expected to prevent the transportation and sale of goods and livestock that carried infectious diseases. The government was expected to quarantine individuals or even communities who were infected with diseases that could be spread to others. It took longer to resolve and has been more controversial, but once medical science demonstrated that vaccination could effectively prevent the spread of some diseases the government was expected to require that individuals be vaccinated so that they would not become a disease vector unless there were extraordinary risks to the individual from doing so. Even a minimal government was expected to restrict the liberty of individuals in such ways because doing so was necessary to prevent those individuals from wrongfully harming others in the community through their actions.

In the present context, it is reckless to engage in close social interactions with crowds of strangers. If the only consequence of that reckless behavior were that those engaging in it might become infected with a disease and suffer ill health effects, that would be one thing. You might underestimate your risk of infection or underestimate the baneful consequences of becoming ill, but those are risks for you to take and you can suffer the consequences of those risks.

But in the case of COVID-19, self-harm is not the only or even the primary consequence of such reckless behavior. The consequence of engaging in such reckless behavior is that you dramatically heighten the risk of spreading the disease to others and as a consequence of significantly harming or even killing them. The state has a proper interest in preventing you from engaging in behavior that will substantially increase the risks of others dying. Restricting your natural liberty to do what you will in order to protect others from being wrongfully harmed by you is not paternalism and is the appropriate job of a state guided by classical liberal principles.

None of that is to say that state officials are adopting the right policies in this particular case. There may be good reason to question whether the benefits of government policies are worth the costs. Perhaps the government is overreacting to an imagined threat (though I do not think so). Government officials have an obligation to fully explain the basis of their decisions to intrude into the lives of millions of Americans. Government officials have an obligation not to exceed their own specific legal authority when taking actions that they think might advance the public good. Government officials have an obligation to minimize their intrusion into public life and to lift restraints as soon as possible under the circumstances. Government officials should be held to account for bad decisionmaking that facilitated the spread of disease and hampered the development of an adequate response to keep it in check.

There is much to criticize the government for in its preparedness for and response to the current pandemic, but paternalism should not be among those criticisms.

NEXT: Sens. Richard Burr, Kelly Loeffler Accused of Coronavirus-Motivated Insider Trading

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  1. It’s paternalism if I don’t want whatever you propose.

    Individualism includes the right to do myself wrong, whether by accident or intentionally.

    Collectivism means you think I am too stupid and ignorant to make decisions for myself.

    1. To assume that any government knows what it is doing during this media- and government-induced panic is paternalism. Governments have shown their incompetence over and over and over again. Look at how they prevented private testing, just because “government knows best”. Look at how Ebola, SARS, MERS, HxNx all were predicted as dire as Coronavirus, yet none turned into anywhere near the disaster predicted, the media had AGW to push so ignored the new sources of panic, and the government also did not want to be distracted from AGW.

      What makes this panic difference is that not even Greta could convince the public that AGW was important, so the media and governments were eager to have some new way to panic the public.

      There is negative reason to think the government has any idea how to stop Coronavirus, and positive reason to disbelieve everything they are doing.

      Yes, this is paternalism.

      1. Thank you for the perspective from the disregarded, disaffected, unhelpful, anti-social fringe.

        1. Were you too busy buying toilet paper and avocado toast to provide that perspective?

          1. I have never had avocado toast. Do you have a recipe to recommend?

    2. Cue a ginormous “WHOOOSH!” sound as the basic point flies over your head a mach speed.

      1. Spoken like a true statist who thinks government can do no wrong.

        1. Where did zarniwhoop say government can do no wrong?

    3. In point of fact, some people are too stupid and ignorant to make decisions for themselves. Normally, a free society allows them to do so anyway. However, when their stupid and ignorant decisions start to spill over and impact the lives of other people, there comes a point at which society has the right to intervene to protect others. This debate is over where that line gets drawn, and not whether it exists.

      1. I said nothing about preventing people from harming others. That is not paternalism.

        1. How direct does the harm have to be? I suspect we would both agree that if someone cultured some COVID-19 and then used it to deliberately infect other people, we would both agree that they could be stopped, by force if necessary.

          But what if someone with COVID takes a walk through a public park? Or what if it’s known that COVID has infected a certain neighborhood but it’s not known which specific individuals are infected, so the government locks down the whole place? Those lines aren’t quite as bright. But those types of questions are going to have to be answered, and “big gummint bad” isn’t going to be a sufficient answer.

        2. You DID imply that it’s paternalism for government to prevent people from harming others. In your initial comment, you wrote, “It’s paternalism if I don’t want whatever you propose.” That logic is specious, and has nothing to do with whether your behavior harms others. People often resist having their behavior restricted even when they KNOW it runs a serious risk of harming others (e.g. Evangeline Lilly). So to say that a given regulation is paternalistic–and therefore presumably unjustified–simply because the people it restricts oppose it necessarily implies that in at least some cases, regulations that constrain people from harming others still constitute paternalism.

          What’s more, your logic isn’t only specious and poorly thought through; it’s also uninformed and just plain inattentive. Didn’t you read the article?? Its whole point is that rules or regulations are NOT paternalistic WHEN THEY AIM TO PREVENT PEOPLE FROM HARMING OTHERS.

    4. What simplistic drivel. Whether you do or don’t want the proposed restriction is NOT the criterion that determines whether it’s paternalism or not. By that logic, it’s “paternalism” to outlaw rape or murder as long as the would-be rapist or murderer doesn’t want to have his freedom to rape or murder people restricted.

      As this article explains, what determines whether it’s paternalism is whether or not the individual behavior being restricted *harms others or violates their rights.* People rarely want their freedom restricted (unless they have some ulterior motive for it, like crony capitalists who welcome certain government regulations because they benefit from the resulting suppression of market competition), so the logic you employ here would basically render *all* regulations “paternalist.”

  2. “It is not paternalism to tell you that you cannot walk around spreading an infectious disease to your unsuspecting fellow citizens.”

    35 years ago, it was AIDS and Cuba dealt with it by locking up all the gays so it couldn’t be spread. We didn’t do that….

    But now we are locking up everybody (except the politicians) and if this extends beyond two weeks, it’s going to ignite open rebellion.

    1. But back to the underlying concept that government has a duty to protect the public good — doesn’t International Law hold that governments (collectively) have a duty to protect the world from rogue regimes? Well, what is China?

      Assuming this actually came from Bat Soup and didn’t escape from the Wuhan Lab, the world is dealing with this because the Chinese Government tolerated the butchering of animals on streetcorners, with that having helped spread SARS in China a few years back. In 2017, Smithsonian Magazine, no bastion of right-wing thought, openly asked “is China Ground Zero for a Future Pandemic?”

      China then lied to the world about the Wuhan Virus being contagious, costing the rest of the world a few months of preparation, not to mention the ability “to inspect and detain those who might be arriving on our shores with infectious diseases.”

      The government also imposes penalties should I drive my car while falling-down drunk and run into the side of someone’s house. Should not the world place a similar penalty on the Chinese Government?

    2. You’re comparing apples and oranges. We didn’t lock up gays at the height of the AIDS epidemic because HIV can’t be spread through casual contact. An HIV+ person can’t give you the bug by sneezing on you. Coronavirus, by contrast, can be and often is spread by casual contact. The two epidemics you’re comparing aren’t even remotely analogous in the way you seem to think they are.

  3. I like how you use the phrase “the government” like they’re some outside body and not part of our society, families, neighborhoods, etc., and that we have no influence of them.

    If We the People don’t like what the govt is doing then change it.

    (I have a dim view of We the People so maybe we are screwed.)

    1. Back in 1978, wildly popular Governor Michael Dukakis responded to a blizzard by shutting down the state’s highways for 10 days. This led to him being defeated in the primary that fall, and a taxpayer revolt (Prop 2 1/2) two years later.

      Right or wrong, even if this gulag approach ends before there is open rebellion, I expect a populist revolt against both government and the medical industry.

      1. I expect an accelerated conclusion to the anti-government, anti-expert, anti-competence, right-wing populist revolt and a relatively quick implementation of universal health care.

    2. @apedad–here I have to disagree. In a democratic society, the populace does have some ability to hold their government accountable–but that doesn’t make the government identical to the people themselves, nor does it give the government the right to impose *absolutely any restrictions under the sun.* Given how many unpopular restrictions remain in effect thanks to powerful interest groups that support (or simply because most voters are understandably preoccupied with other, more pressing matters), voting the bums out at the next election isn’t an adequate remedy for unjustified government intervention.
      (Of course, you yourself say you have “a dim view of We the People,” so maybe you actually get the point already. 😉

  4. The government has an interest in preventing people from being infected with COVID19 only if they pose a risk to others. Many people would agree to be intentionally infected and quarantined until they are no longer contagious to avoid getting COVID19 at a more inconvenient time. For an NFL player, it makes sense to want to be infected in June, to prevent getting COVID19 during the season. There is some health risk of COVID19, even for healthy young people. However, people who play pro football do not have the same concern about their health, or they would work in another profession.

    We could reduce the risk of COVID19 by setting up a program that would pay healthy people in their 20s to become infected voluntarily and quarantined until they are cured. They could not infect anyone while quarantined, and once they are better, this would increase herd immunity. Besides reducing the number of people infected, it would substantially reduce the strain on hospitals because young people are much less likely to need medical care.

    There will be plenty of empty hotels, so the government could rent places to quarantine people cheaply. And people would probably need less money to agree to participate than you would think. The incentive for people to participate in the program would not just be the money that they receive. They will also be receiving immunization as a result of participating in the program. Some young people think there is no risk to them, so they want to be infected to get over it. (It’s not true that there is zero risk, but enough people believe it that it is a real problem.) We need to give these people a way to get infected without infecting others.

  5. My one quibble with Lrofessor Whittington, which is a quibble with his assumption all framework and not his argument, is that a far greater amount of what we do affects others than classical liberalism posits.

    And, as Justice Holmes put it, so far as the constitution is concerned the state is as free to select organic paternalism for its assumptional framework as classical liberalism.

  6. If so many people in government and associated social circles didn’t exhibit hatred for ordinary Americans, we might be more inclined to trust — or at least tolerate — their actions.

    Four months ago they were obsessed with plastic straws.

    1. A more practical example is the ban on plastic shopping bags.

      The Wuhan Virus can live on the re-usable shopping bags for up to 3 days, bags that the same people in government have mandated. So we have Wuhan Virus being spread throughout grocery stores and to other households.

      And they are trying to prevent the spread of it?

      1. I don’t believe made up dramatic stories about someone getting sick from reusing a shopping bag either.

        Bag bans are bad, of course. We don’t need to make up stories to know that bullying people about something completely meaningless like shopping bags is wrong. If they wanted people to listen to them now, they shouldn’t have been such ridiculous jerks about bags and straws.

    2. Ben, project much?

      1. None at all actually.

        1. None at all? You’re funny.

        2. I rub circles with politicians. They don’t hate you. They may not all be super altruistic as they say, but this whole disrespect/resentment narrative has been stoked by the right until it’s become a self-reinforcing anti-elitist BS narrative.

          1. “Exhibit hatred” is about how they relate to people. They say hateful things and treat us as badly as they can get away with. Does it really matter if you are somehow correct and they secretly aren’t as hateful as you’d conclude from their words and actions?

            1. Ben, to my knowledge I’ve never met you, and it may be that I’m giving you less credit than you deserve, but here’s how you’re coming across: Just like a teenager who says, “You won’t let me drink a fifth of vodka and then drive the family car? YOU HATE ME!”

              I think the real issue is that most people don’t like being told what to do, even if what they’re being told is the right thing to do. We Americans have turned it into an art form. But sometimes “they” really do tell people to do things because it really is the right thing to do. Not always; sometimes they make mistakes too.

              1. Free people shouldn’t be bullied because you have some stupid obsession or moral panic.

                You used up your credibility on plastic straws. No one will listen to you about that vodka or the virus or anything else.

                Why listen to whimsical would-be totalitarians? Why treat them any better than they treat us?

                1. Well, plastic straws do in fact harm the environment — even if you don’t believe in global warming — so we actually would be better off without them. So I’m not sure what credibility you think “you” used up.

                  But that sounds like more of an excuse. You don’t like being told what to do, so you’re going to resent anyone who does, even if they happen to be right.

                  1. No, plastic straws are very obviously insignificant to the environment. You are showing you can’t distinguish a fact from a wish or a notion or a feeling. And you prioritize those notions above people. People are wise not to listen to you.

                    You are also very clearly showing us how you treat others. Someone says something in clear, unambiguous words, and instead of listening and taking them at face value, you make up a narrative about how you should decide for them. People are wise to treat you as a potential threat — maybe not an actual threat, but definitely not someone trustworthy.

                    1. Ben, project much?

                      I did not say that I should decide for others. I said plastic straws are bad for the environment. I was silent on what, if anything, the government should do about it. From that, you said I made up a narrative about how I should decide for other people, that I’m untrustworthy, and a potential threat.

                      Project much?

                      You’re also mistaken on the facts. The cumulative effect of plastic straws on the environment — millions of them — is not insignificant. Plus they keep showing up in the digestive tracts of birds, fish and animals that swallow them.

                      So, not only are you a petulant adolescent who won’t be told what to do, you’re an incredibly thin-skinned petulant adolescent who makes a point of seeing other people in the worst possible light. It must suck being you.

                    2. Yeah, we should clearly be listening to people like you on the virus. Clearly you’ll be treating us as if our concerns as free people matter and aren’t subservient to theoretical birds and fish. Clearly you won’t dismiss anything you don’t want to hear as projection. Clearly you see others as fellow countrymen deserving mutual respect.

                      Why won’t all the people you look down on take you seriously? It’s a mystery.

    3. Ordinary Americans aren’t stridently anti-government. Ordinary Americans aren’t bigots. Ordinary Americans aren’t social conservatives. Ordinary Americans don’t disdain science, credentials, reason-based education, expertise, and experience.

      If you figure recent developments are going to make disaffected right-wing cranks more popular, I expect you to be disappointed.

      1. Name-calling is about 95% of what you post so I will never read your messages. Too boring and unintelligent.

  7. There’s a subtle but important distinction to be made. If the ground of criminalizing assembly in groups (think the Elizabethan closing of the theatres due to the plague), the action is acceptable under most reasonable libertarian schemes. If, however, the ground of the prohibition is individual behavior that leads to contamination and the same enforcement action is taken, libertarians might very well object. Not a semantic distinction; ground becomes the force of precedent.

    Mr. D

  8. Contrast the current theorizing and government actions with the theorizing and the actions/inactions of local and state governments at the outset of the AIDS epidemic, when any steps to halt or curb behaviors that were infecting others with a fatal disease for which there was no cure or even treatment were branded as overly intrusive and violative of the basic human right to go to bathhouses.

  9. “None of that is to say that state officials are adopting the right policies in this particular case. ”

    Correct. Curfews and so called “shelter in place” diktats [especially the state wide ones] are examples.

    1. Good luck persuading Americans to credit your opinions.

      Especially in educated, modern, accomplished, forward-thinking communities.

  10. “But in the case of COVID-19, self-harm is not the only or even the primary consequence of such reckless behavior. The consequence of engaging in such reckless behavior is that you dramatically heighten the risk of spreading the disease to others and as a consequence of significantly harming or even killing them.”

    First, that is false. Second, even if it were true, that is irrelevant. The people who choose to inhabit the same public space with other potentially infected people made an affirmative choice to be there.

    It’s one thing, and completely fine, to tell people who have tested positive to keep it to themselves.

    It is a wholly different, and unacceptable form of paternalism, to tell people who have no reason to believe they are infected that they must be under house arrest.

    1. Nope. What you believe about your medical condition is unrelated to the public interest in your true, but still-unknowable, medical condition. So policy is right to treat you as a statistic, and not as an individual.

      Statistically, your true medical condition, on average, is what counts in the policy reckoning. Policy can justifiably conclude that need to husband medical resources justifies keeping you (and everyone, of course) from avoidably using a ventilator. Policy can also conclude that outweighs your personal preference, because your preferences have nothing at all to do with you as a medical statistic.

      All this libertarian outrage might more accurately be expressed as candid opposition to the practice of public health as a public good. Good luck selling that to the public anytime, but especially now.

  11. Instead of arguing that it is not “paternalism” — which it clearly is — argue that paternalism is sometimes OK.

    1. Read the OP. It makes a quite clear distinction between keeping your from harming yourself and keeping you from harming others.

      It is not paternalism to tell you that when you are falling down drunk you may not then get behind the wheel of a piece of heavy machinery and drive down public roads where you might crash into other innocent drivers or even into their stationary houses.

      1. No it does not. It makes the distinction only to immediately conflate the two.

      2. It’s a fair point. But I don’t think the distinction can be maintained. For example, outlawing meth and heroin is about preventing an individual from harming themselves, but it’s also about the infants who inevitably die from extreme neglect as a side effect of such drug use, to name one of a host of indirect and immeasurable societal harms. On the other hand, banning groups of 50 people is about preventing potentially infected individuals from harming others, but it’s also about preventing those 50 people from voluntarily assuming the risk to themselves of partaking in that gathering on the basis that they don’t know what’s good for them.

        If the government were just quarantining individuals who have tested positive or been exposed (and I suspect efforts should focus more on this kind of thing and less on society-wide measures), then you could have a better argument for the relative lack of paternalism in such measures.

        So I don’t think you can sort things into “paternalism” or “not paternalism” but perhaps there are relative degrees to how paternalistic a government dictate may be.

  12. . . . and there is no doubt that the government’s recently announced policies are a restriction of what the founding generation would have characterized as our “natural liberty” to act as we wish unhindered by external constraint.

    Once again, when you apply the, “would have,” construction to history, you are almost always doing it wrong. And this is another of those wrong instances. Whittington is reading back into history a modern interpretation of, “natural liberty.” He probably could not justify that based on the historical record of that era. I said, “probably,” because I am a bit uncertain what the record says on that point, so anyone with historical citations they think are on point is invited to prove me wrong.

  13. If I have the argument right then the possibility that you might harm me justifies any restriction against you, me, Bob and Sally.

    You might drive drunk and injure someone therefore banning all sale of alcohol beyond one near-beer a day is just fine to protect the public at large from the drunk driving scourge. You haven’t driven drunk, you aren’t a public safety risk but you could be so severe restrictions on everyone’s civil liberties are just fine.

    1. There wasn’t any argument here about proportionality, or what was good policy, only what counted as paternalism.

      Drunk driving laws apply to everyone, history of DUI or no. Do you oppose those?

  14. I think this argument inevitably slides into paternalism. You said it was paternalism to tell people they can’t drink alcohol, but it’s NOT paternalism to tell people they can’t drive drunk. Ok. What if we phrased it this way: You can’t make rational decision while drunk so you shouldn’t be allowed to drink alcohol because you may make irrational decisions that could endanger others.

    I don’t see a big difference between the two arguments.

    You should only punish actions that result in harm. Ergo, driving drunk isn’t the problem; hurting someone is the problem. Besides, I don’t think most of us avoid drunk driving because of the law. I avoid it cause I don’t want to kill anyone or die myself.

    Any way, you can make this kind of argument about anything:
    – Owning a gun makes it much more likely that you’ll shoot someone; therefore, you shouldn’t be allowed to own guns.
    – Owning a pool makes it far more likely someone will drown on your property; therefore, you shouldn’t be allowed to own a pool.
    – Having lots of sex makes it far more likely you’ll give someone HIV; therefore, your number of sexual partners should be limited.

    Etcetera, Etcetera

    Either you respect people’s freedom and accept the risks that come from that or you don’t.

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