Liberty of Movement and Assembly

when everyone is potentially lethal to others, without any individual choice on anyone's part.

|The Volokh Conspiracy |

Some recent comments have faulted people (like me) for not being "principled libertarians" because we support various restrictions in a time of epidemic, including restrictions that we agree are extraordinarily burdensome. As it happens, I don't claim to be a principled libertarian: There's a reason the subheader of the blog says "Often libertarian" (though of course that reflects the aggregate of the cobloggers as well). But more broadly, I think that many facets of liberty rest on certain assumptions, and sometimes can't extend to situations where those assumptions don't apply.

Some examples, of course, are familiar. Sexual liberty is very important, for instance (as a matter of libertarian principles, whether or not you think the U.S. Constitution is properly interpreted as protecting it). But it rests on assumptions of individual capacity to make potentially risky decisions that might not apply to, say, young children, or mentally handicapped people. Likewise, the right to procreate is very important. But if we were living on a spaceship that was limited to recycling a sharply constrained amount of air and food, that might call for limits on the number of children one has that wouldn't be justifiable in our current world of plenty.

Liberty of movement and of physical association—coming together for political, religious, social, professional, recreational, or other purposes—is likewise tremendously important. "The right of the people peaceably to assemble, and to petition the Government for a redress of grievances" is just one particular express elaboration of this liberty. But the premise behind the liberty is that people assembling together can choose to be "peaceable," and thus physically safe for each other and for bystanders, and we should punish only those who deliberately abuse the right (by acting non-peaceably).

Contagious disease, unfortunately, has the property that I can sicken or even kill you with it entirely inadvertently, without any choice on my part. It's not like carrying a gun, which I might misuse but which I can choose to use properly. It's like carrying a gun that every so often (and largely unavoidably) just shoots a bullet in a random direction, without my pulling the trigger.

What's more, not only can I sicken or kill you when you've voluntarily agreed to be around me (e.g., agreed to go to a political rally or a religious service where many potentially infected people gather): I can end up helping cause the sickness or death of other parties with whom you later come into contact, or those even more steps removed.

Libertarians often articulate the basic principle that people cannot initiate the use of force or fraud against others. But I don't think it makes sense to see the "force" prong as limited to deliberate injury; causing sickness or death to others inadvertently may be less morally culpable, but it is just as injurious. Right now, our bodies (at least until the availability of highly reliable tests for not being infected, or, better yet, being immune) are, for most of us, a potential source of infection and thus injury and death to third parties. The normal conditions that have justified liberty of movement and assembly in the U.S. for all my life unfortunately do not apply right now.

Now of course this raises all sorts of complicated questions. Obviously liberty emerged at a time when contagious diseases were both much more common and more deadly than they are today, because of the absence of effective prevention and treatment—consider, for instance, tuberculosis. Some amount of unintended risk created for others was seen as acceptable.

My sense is that our society is now insisting on a much lower threshold of acceptable risk, perhaps because we have gotten so used to a very low death toll from casually communicated illnesses (mostly from the flu and similar diseases). One can certainly debate whether we have adopted too low a threshold: Perhaps massive restraints on travel and assembly might be acceptable for diseases with the lethality of Ebola or some unvaccinatable-against mutation of smallpox, but shouldn't be acceptable for this strain of coronavirus.

And of course this is further complicated by the uncertainty of just how reliable various protective measures might be: For instance, if it we were confident that wearing a certain kind of mask would prevent the wearer from infecting others, then there would be much less justification for banning mask-wearers from traveling and gathering with others. Unfortunately, so much remains unknown about the facts here.

But the broader point is that the normal conditions that justify liberty of movement and travel—that make this liberty consistent with the libertarian judgments that each of us should have the right to do things that don't physically harm others—are regrettably not present when each of us (with no conscious choice on our parts) is potentially highly lethal to people around us. However peaceable we might be in our intentions, our assembling is a physical threat. Our judgments about liberty, I think, need to reflect that.

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  1. If this was in response to my comment, I wasn’t really making a statement about you. I had just come off reading several stories and have been seeing people who had previously claimed to be “principled libertarians” cheering these infringements on. I just chose your article to comment on because it was the last one. Probably a mistake on my part.

    But anyways, when we have police coming to break up birthday parties on private property, the idea that government is a net positive for liberty has “jumped the shark”.

    1. No problem, and while your comment did immediately prompt the post, I’d been meaning to write this for a while, in response to other comments.

      As to the government being a net positive for liberty, it’s a bit complicated, no? The question is whether the costs to liberty in breaking up the birthday party (and other similar events) are exceeded by the benefits to liberty of those whose lives might have been saved by breaking up the birthday party (and other similar events), and helping prevent other such parties.

      1. I don’t even understand the phrases “cost to liberty” or “benefits to liberty” in that context. I see liberty as an individual state of being, not a collective one. Coming in with guns on someone else’s property to forcibly remove people who are “peaceably assembling” does nothing positive for the liberty of any of the people involved. Both the police and the people in the house end up being exposed to more people than they chose to. And no other individuals had their liberty affected while the party was happening.

        1. Here’s a nice example of ignorance. Of course he doesn’t look at it that way, it’s so he can blame his violence on others.

          1. ???

            1. Of course you’re confused, if you want to encourage his ignorance that’s on you. I see you’re not concerned with the violence and racism among the commentariat. Maybe you should email them.

              1. A person’s comment can’t be violence. It’s just words.

                1. Dyzalot’s comment was not violent. It was belligerently ignorant.

                  1. No what is ignorant is the belief that liberty is a collective idea instead of an individual one.

                    1. If you pay for it, sure. But I imagine you don’t want to be responsible for your actions after that party. Hence, you’re violent.

                    2. Although it applies to each individual, ‘liberty’ is not an individual idea, and it is not the same or mean the same as ‘freedom’.

                      The word and its meaning ultimately derive from from the indo-european meaning to take one’s place among the people; to mount up on a horse, to grow into adulthood, to offer a sacrifice to the gods, etc. Liberty confers freedoms that others don’t have; but liberty also confers responsibilities to one’s tribe or people.

                2. Nice try thug, you show what you are willing to do.

                  1. I’m willing to use my words! The HORROR! 911 Call the Seattle Police Chief! It’s nasty words!

        2. I’m listening to the “Free Staters” out of Keene, New Hampshire right now, their weekly radio show, and if these two are reflective of the movement, we are going to have a problem soon.

          Right or wrong, this isn’t going to last another month. And legal nuances tend to become irrelevant in revolutions.

          1. I can tell you, the rural upstate New Yorkers are not reacting well to news of Cuomo sending in the National Guard to seize their life-saving equipment and redistribute it NYC.

            1. the National Guard to seize their life-saving equipment and redistribute it NYC”

              Who exactly are the rightful owners as a matter of law of what you speak of as “their life-saving equipment”?

              1. Is that like “our” lifesaving equipment?

              2. “private hospitals, nursing homes, and other facilities” according to this.

                https://www.politico.com/states/new-york/albany/story/2020/04/03/cuomo-plans-to-use-national-guard-to-seize-ventilators-from-upstate-facilities-1271376

                The governor’s plan drew concern from some upstate Congressional lawmakers, including Republican Rep. Tom Reed.

                “Taking our ventilators by force leaves people without protection and hospitals unable to save lives today or respond to a coming surge,” he said on Twitter. He added: “We stand together opposing the Governor’s very dangerous and reckless action of taking our ventilators. He is leaving our communities in a terrible position which will cost lives.”

            2. And I notice that the stores in NYC are boarding up their windows.
              Paranoia — or prudence????

              https://www.fox5ny.com/news/store-owners-boarding-up-buildings-across-manhattan

            1. F.H. Buckley is mobilizing his dozens of followers?

              Let’s hope America’s ankles can survive those nips.

            2. The Union is indivisible. Are you or that guy hoping the current makeup of the Supreme Court will overturn the 1869 ruling?

          2. “we are going to have a problem soon”

            If so, I expect it to be a problem not much different than that we customarily encounter with respect to counterproductive, anti-social losers.

            Deadbeats who do not pay child support or other civil judgments. People who are drunk and disorderly in public. People who do not comply with subpoenas. People who drive without a license. People who vandalize property. People who violate protective orders. People who trespass. People who violate fishing and game laws. People who loiter or litter. People who menace.

            Society can and does handle those jerks, and others. In this case, most citizens are likely to be especially supportive of law enforcement seeking to leash disaffected offenders.

            I read that the Bundys (the right-wing malcontents from Idaho, not the sorority stalker) are taking up the cause Dr. Ed evokes. If one of those misfits wishes to go “the full LaVoy” in flouting public safety, let’s make it quicker this time.

            1. Insofar as Russian and Chinese trolls troll web sites to stir up animus goes, to weaken the US, if there are secessions, mission accomplished and bonuses for the trolls.

              Maybe pull it back instead of throwing in with them, unknowingly. But the rhetoric is so much fun.

            2. If so, I expect it to be a problem not much different than that we customarily encounter with respect to counterproductive, anti-social losers.

              No, the problem is different in that it is the middle who is getting upset, the productive backbone of society. The apolitical middle.

              Now will it reach critical mass before the fiats end — I hope so.
              But I’m seeing a start to an us versus them mentality that no society can withstand, or at least none yet has in human history.

              1. I don’t see it. Most Americans like the progress achieved during our lifetimes — especially the properly educated, the marketably skilled, the socially adept, the residents of modern and successful communities.

                Those who object to America’s progress are receding as our electorate continues to improve and the great American sifting continues — that’s why they are desperate.

                America is strong and resilient enough to withstand a health crisis and the Trump administration, in my judgment. Bet on education, reason, tolerance, science, modernity, freedom, progress, strong institutions, inclusiveness, and the liberal-libertarian mainstream to win in America. As usual.

                1. I don’t see it. Most Americans like the progress achieved during our lifetimes

                  Many have seen their retirements evaporate….

                  America is strong and resilient enough to withstand a health crisis and the Trump administration

                  Why do you think there *IS* a Trump administration?!?
                  Why do you think half the people voted for him?!?

                  There is a very vocal woke minority in this country, one which makes a lot of noise and reads too much of its own literature.
                  And there’s a majority that is silently fuming…

                  1. The markets are roughly where they were when Trump announced the ‘biggest inaugural crowd ever — after an extraordinary eight-year market swell. People who have seen their retirement funds evaporate are delusional or dopes.

                    You see a different America than I do. I blame my education, my nice neighborhood, my successful careers, my lack of interest in pining for good old days that never existed. I escaped the desolate backwaters and avoided the character flaws led people to stick with declining towns and industries, cling to superstition and guns, and vote for Trump. You, apparently, spend too much time with the culture war’s losers.

                    1. The hubris of every empire ever.

                    2. The markets are roughly where they were when Trump announced the ‘biggest inaugural crowd ever

                      And imagine where they would be if Trump hadn’t been POTUS for the past three years….

                      You see a different America than I do.
                      Yes, I do — in part because I was trained to see such things, but I digress….

                      I blame my education, my nice neighborhood, my successful careers, [etc.]

                      There were a lot of people like you in 1928.

                      Many of them were very soon living in a very different reality, and we haven’t had a re-shuffling of the social deck (until now). Throw in significant inflation (if not hyperinflation), the inevitable consequence of what the Federal Government is doing, and you may find yourself in the same situation as many similarly situated people 90 years ago.

                      …cling to superstition and guns, and vote for Trump. You, apparently, spend too much time with the culture war’s losers.

                      They said the same thing about the supporters of Andrew Jackson.

                      And as to the culture war, a fourth Great Awakening will very much shift the axis on that, won’t it?

                  2. To answer your question about why there’s a Trump administration, it’s because there’s an electoral college that renders public opinion irrelevant. Next question.

                    1. The electoral college exists because we live in a Federal Republic.

                      Next false claim???

                    2. What’s false about my claim that the reason Trump was elected is that we have an electoral college, which renders public opinion irrelevant? What part of that isn’t true?

                  3. Many have seen their retirements evaporate….

                    I suppose the market crash is Obama’s fault. Right, Dr. Ed?

                    1. To the bigot, it’s always the black guy’s fault. And the white guy can do no wrong. That explains most of the Trump defenders.

                      Well, that and substandard education.

        3. Dyzalot, I don’t know whether you’re being deliberately obtuse or words are getting in the way of clear thinking here. I believe Eugene’s point is simply that a sufficiently severe pandemic can make prohibiting partying for a limited time a reasonable price to pay to avoid the (permanent, total) reduction in liberty that would otherwise result due to extra deaths.

          Please answer the following before changing the subject: Is there ANY pandemic infectiousness/severity level at which you would be ok with enforcement of a ‘no partying’ rule even on private property?

          If Yes, I think you are on board with the main point Eugene is making, though you may haggle over the drawing of the line. If No, I can only comment that any political philosophy prepared to march the population off a precipice (here I am referring to my Q, not necessarily to the current CV scenario) merits serious reexamination.

      2. I’ve occasionally thought that one of the differences between actual libertarians, and people of other persuasions who just approve of freedom as one among many goods, is how they react to externalities.

        The libertarian looks at the externality, and asks, “How can we get rid of this externality at the least cost in liberty?” The non libertarian looks at the externality, and says, “Well, I guess liberty has to be set aside in this case.”

        What’s the problem with the birthday party? The chance of transmission. So, permit the birthday party so long as the attendees all wear masks. Don’t just categorically ban it.

        1. That puts you with with the eight backwater Republican governor holdouts — each of whom will cave (call it a “DeSantis Denouement” or a “Kemp capitulation) as reality, science, education, and reason overcome their backwardness, superstition, delusion, and belligerent ignorance.

          1. The same “reality, science, education, and reason” that gave us the Wuhan virus in the first place — it came out of the Wuhan Institute of Virology….

            The same “reality, science, education, and reason” that gave us the Thalidomide Babies. Yes, it did….

            1. These are your peeps, Conspirators.

              I see no reason to cancel the next victory party for the liberal-libertarian mainstream as the culture war with conservatives continues.

            2. Quote from a friend. “We’re relying on the same government for health information that for fifty years told us that Margarine was good for us. The same government that, for the purpose of subsidizing corn farmers, mandates ethanol in our gas. The same government that involved us in Vietnam based on an event that never happened. I can keep going, and going and going. How are we supposed to know what to believe here? Even when they’re not intentionally lying, their track record for incompetence is off the charts.”

              1. Oh, there are a lot better ones than this:

                The same government that mandated MBTE in the 1990’s, much to the opposition of the oil companies that knew that it (a) was water soluble (unlike gasoline), (b) carcinogenic, and (c) likely to contaminate a bleepload of wells used for drinking water — which it did. The same government that banned DDT from safe indoor uses which is why we now have problems with bedbugs. Etc….

                1. The government didn’t mandate MTBE, it mandated oxygenates. Refiners chose MTBE over other alternatives such as ethanol which are used for this purpose today, because MTBE was easier to work with, so if there was a problem it was that there wasn’t enough regulation. There was no demonstrated cancer risk, except to lab rats at high doses. From a 2000 California report:

                  The true value of the human cancer potency may in fact have a lower bound of zero (i.e. there may be no human cancer risk at very low doses), based on statistical and biological uncertainties.

                  The motive to ban it in CA was that it imparts an unpleasant taste and odor to drinking water, not that it was dangerous.

            3. Just curious, what gives you your certainty that “the Wuhan [sic] virus…came out of the Wuhan Institute of Virology”? Any evidence to support that allegation, or its simply speculation?

              1. The Washington Examiner has covered this at length, including translations of WIV job postings last fall for people to study what appears to be this very virus. Also bats apparently don’t live in Wuhan, or within some 300 KM of there — something about climate. Also WIV’s “Bat Lady” — their premier bat virus scientist — quickly left a conference and hurried home when she heard about this. Also there are some Israelis with some interesting things to say, and Israel has a fairly competent secret service.

                So no, it’s not just speculation….

                1. Got any links?

        2. EV did address this

          And of course this is further complicated by the uncertainty of just how reliable various protective measures might be: For instance, if it we were confident that wearing a certain kind of mask would prevent the wearer from infecting others, then there would be much less justification for banning mask-wearers from traveling and gathering with others. Unfortunately, so much remains unknown about the facts here.

          I do think some of the measures taken are too far, but if you start talking more about degree than kind then it isn’t necessarily a libertarian vs other discussion.

          1. “but if you start talking more about degree than kind then it isn’t necessarily a libertarian vs other discussion.”

            Degree vs kind is exactly what the distinction between libertarians and people who just view liberty as one value among many is about.

            Because it isn’t that libertarians don’t recognize other values. It’s just that they, (For the reasons I explain above.) view liberty as the most important value. Inherently so, because if you don’t have it, whether or not you get any other value is somebody else’s decision, not yours.

            1. “Because it isn’t that libertarians don’t recognize other values. It’s just that they, (For the reasons I explain above.) view liberty as the most important value. Inherently so, because if you don’t have it, whether or not you get any other value is somebody else’s decision, not yours.”

              That’s not true at all. It is quite possible (and in fact frequently happens) that people don’t have liberty with respect to a particular value, but do have liberty with respect to multiple others. For example, I do not have the liberty to have sex with a 10 year old; big bad gummint forbids it. That says nothing, however, about whether I have liberty to, i.e., attend a particular church, or vote for a particular candidate, or express my opinions in a letter to the editor, or do any of the hundreds of other things I still have the liberty to do.

              Your all or nothing approach is just wrong.

  2. I also don’t agree about each of us being “lethal”. That is just a matter of degree. If I had cold last year and went to visit my grandmother at the nursing home, no one was arguing about “lethality”. If they don’t want anyone with colds to go on their property then make such a rule. True property rights such that there is little to no public property would fix this problem.

    1. Very persuasive argument you have there.

    2. Ok, had to comment here. Nursing homes do in fact make those rules = no one with colds/respiratory infections to enter. They did this on a voluntary basis (well before Covid-19) because they know the heightened risk to the people they care for.

      Whether you say ‘lethal’ or ‘potentially lethal’ as your label, Professor Volokh’s point still holds true: But the broader point is that the normal conditions that justify liberty of movement and travel—that make this liberty consistent with the libertarian judgments that each of us should have the right to do things that don’t physically harm others—are regrettably not present when each of us (with no conscious choice on our parts) is potentially highly lethal to people around us. However peaceable we might be in our intentions, our assembling is a physical threat.

      Nothing in your comments I can see directly addresses this point. Your actions, in the midst of a viral pandemic, will threaten the lives of those around you. You made that choice, they did not. You made the choice for them, and that is where your argument just falls apart (If I am following you correctly).

      I would go one step further to complement what Professor Volokh states. As long as these restrictions are a) in response to a bona fide national emergency, b) are temporary, and c) are time-bound; then the restriction on your liberty is reasonable.

      Net net: You have to be alive to exercise those rights and enjoy liberty.

      1. Those around you also made the choice to be there, knowing the risks. Can’t we accept that some people might make choices which entail more risk than would be personally acceptable to oneself, and make decisions accordingly?

        ie, if you’re personally worried about covid-19, don’t go to large gatherings. Why must that translate into insisting *other people* not go to large gatherings?

        1. Because not going to large gatherings doesn’t cut it with a disease this virulent.

          It’s one type of silliness to accept the externalities as a sacrifice you’re willing to make on behalf of everyone.

          It’s another to deny the reality of such externalities. Editing reality to conform to your ideals is not a healthy impulse.

          1. Oh come now, this isn’t that virulent (Mumps has an R of 12), nor is it that dangerous for younger healthy people, and given the current response is to basically assume everyone has it, then people who wish to do that to themselves don’t even need to worry about what other people are doing. You’re basically forcing the maximally safe response to an externality on everyone else. It would be like outlawing engines and ending the industrial revolution because of air pollution.

            And what of the externalities that response engenders? Job loss, recession or depression, accompanying stress, and the very real medical consequences that entails. Why is it okay to deny the reality of those externalities, but not the ones you’ve deemed to be important?

            1. I believe a particular virus’ Ro is an observed value, not an inherent property of the virus at all times in all places. And “virulence” is usually refers to the degree of damage caused by a microbe to its host. So your medical understanding of the considerations is woefully wrong and your prescriptive advice potentially dangerous.

              If despite your assurances that “younger healthy people” have relatively little to worry about (is that what you mean by “nor is it that dangerous” for them?), one of them them becomes severely ill and requires ventilatory support to save their life, as sometimes happens, then do you thing they should get in line ahead of or behind those who isolated themselves to avoid the virus but contracted it anyway? How about tattooing on their foreheads “I accepted the risk,” so we could assign them their deserved priority if they do become grievously ill? Too bad that wouldn’t be practical for libertarian fools like you.

              1. “I believe a particular virus’ Ro is an observed value, not an inherent property of the virus at all times in all places. And “virulence” is usually refers to the degree of damage caused by a microbe to its host. So your medical understanding of the considerations is woefully wrong and your prescriptive advice potentially dangerous.”

                May I ask how you are so knowledgeable about the Wuhan Virus?

                Unless you’ve traveled forward in time a dozen years and read refereed journal articles that haven’t even been written yet, based on morbidity and mortality statistics that don’t even exist yet, I’m hard pressed to understand how you might have acquired this knowledge…..

                1. Because I have the medical/scientific credentials to say what I have said about epidemiology and virus in general. No knowledge of as yet to be learned facts for this. Which “facts” do you dispute and on what basis, “Dr.” Ed? (BTW, have you educated yourself as to the meaning of “pandemic” since the other day? It doesn’t get much more basic than that.)

                  Now

              2. By dangerous I mean, severe consequences will be rare. Which for healthy young people, they will be.

                (Reported measures of confirmed case CFR for people 50% were asymptomatic iirc. Most of the remaining cases had mild symptoms, many of whom may not have sought medical help at all outside that contained setting, so it’s in rough agreement with the Wuhan estimate. Until somewhere starts doing population serological testing, we have no idea how widespread it already is, so those probably are the best estimates we’re going to have for awhile).

                Nor would i have hospitals treat such people differently than others. Voluntarily taking on such risks has public benefits, including not only economic activity (which benefits everyone in various ways), but also helping build herd immunity in the part of the population least likely to strain the medical facilities, which will reduce demands on the medical system in the longer run.

                Yes, you can point to anecdotes of young people developing serious covid-19 infections. But anecdotes are not data, and if the ~130 million americans least vulnerable to covid-19 were to become exposed and immune, the relatively small volume of medical care would be amply be repaid by society ending up most of the way to herd immunity.

                I mean, what do you think the endgame here is? Stay locked in our houses until a vaccine is ready sometime in 2021? Maybe?

                1. Ug, something ate some text between “CFR for people” and “50% were asymptomatic”.

                  Confirmed case CFR for people 40 or younger were ~0.2%. And that’s still too high, because it misses all the people who weren’t diagnosed.

                  50% asymptomatic is from teh Diamond Princess cruise, where everyone was tested.

                  Estimates from Wuhan are 84% of people infected never sought medical help, because they were asymptomatic or because they didn’t develop symptoms significant enough to prompt them to seek a diagnosis.

                  I think that covers everything that was cut.

                2. Squirreloid…when you say Yes, you can point to anecdotes of young people developing serious covid-19 infections. But anecdotes are not data, and if the ~130 million americans least vulnerable to covid-19 were to become exposed and immune, the relatively small volume of medical care would be amply be repaid by society ending up most of the way to herd immunity., you are simply off-base, and badly mistaken. Please stop.

                  Young people comprise ~15% of Covid-19 hospitalizations, according to the medical data I have seen (I downloaded from IHME and did my own limited analysis). The data is not merely anecdotal, it is quite real. The Wuhan coronavirus will afflict young people, and it can kill them (albeit, at a lower rate).

                  1. 0.2% is the CFR for under 40. That’s an overestimate of the true infection fatality rate by at least a factor of 2 and more likely a factor of 5 or more (most infections never get diagnosed. ~50% have no symptoms at all). Wuhan data suggests deaths are half of critical cases, and critical cases are 1/4 of hospitalizations, which means the ‘confirmed case’ critical case rate for under 40 should be 0.4%, and the hospitalization rate for confirmed cases for under 40 is 1.6%. It’s hard to interpret these numbers as highly risky, given that these are also overestimates for the same reasons.

                    Note that means 20% of confirmed cases even get admitted to the hospital. If 15% of hospitalizations are ‘young people’ (whatever that means to your source), that means ‘young people’ get admitted at lower rates than older people. Most of those admissions will be non-fatal. Without seeing the data, since you didn’t provide a link, it’s hard to know if that percentage is inflated because significantly more cases were diagnosed among young people than other age cohorts, since its given as a percentage of the hospitalizations.

                    Overall, this is data supporting the claim that covid-19 is substantially less dangerous to younger people than older people.

            2. If you need to set the bar at memos to minimize this, you are being dishonest.

              1. Mumps. Oy.

              2. That was a comparison of infectiousness. Mumps is actually super infectious.

                But on severity, it’s a 0.2-1% likely true population-wide infection fatality rate. Mostly biased towards older people, whom i agree should be isolating themselves. (I’ve certainly advised my own parents they need to social distance and avoid gatherings, and i’ve delayed a trip to see them because of covid-19).

                If the average fatality is over 80, that means there can’t be very many young people dying. And since fatality and severity appear to be closely correlated (only critical cases die, approximately half of them), that strongly suggests severity tends to be much lower in younger people as well. Ergo, it’s not that dangerous for young people – probably closer to seasonal flu than not for younger people. (Covid severity and fatality seems to spike more for older people than seasonal flu does).

      2. I’ve never seen a nursing home check peoples’ temperatures before allowing entry.

        “Your actions, in the midst of a viral pandemic, will threaten the lives of those around you. You made that choice, they did not. You made the choice for them, and that is where your argument just falls apart (If I am following you correctly).”

        I disagree. If someone invites me on to their property then they are accepting the risk that they can contract any illness that I might be carrying. The problem is that we have laws making it so business can’t discriminate as to who comes on to their property.

        If a grocery store decides to start excluding anyone that looks sick and “leftists” get mad because it ends up being a higher percentage of the poor or minority community that gets denied entry, then they will be sued for racial discrimination.

        1. I have had my temperature checked before I was allowed in to a nursing home. That was before they exclude all visitors on the governor’s orders (Maryland, under Larry Hogan, a sentient R). So what that you haven’t had that experience, it is somehow meaningful here?

          1. What’s meaningful is that if private property owners were allowed to discriminate for any reason they feel is necessary, including public health then the free market would sort out how much risk society was prepared to take.

            1. Because private property owners can tell at a glance who is infected and who isn’t. Why do we use those silly tests, then? Just let property owners make the diagnosis.

              the free market would sort out how much risk society was prepared to take.

              Wow. The True Believer.

              1. No, because a property owner should be able to say who can or can’t be on his property.

        2. I disagree. If someone invites me on to their property then they are accepting the risk that they can contract any illness that I might be carrying.

          Except, society is not inviting symptomatic people to the public square. And again, you somehow assert your ‘right’ is somehow greater than everyone else’s by your actions. Uh….no.

          1. This isn’t about it spreading to you. It’s about it spreading to you, and then you walking around spreading it to others.

            Banning of large gatherings is about that, and not about the danger to you, of it spreading to you.

  3. “It’s like carrying a gun that every so often (and largely unavoidably) just shoots a bullet in a random direction, without my pulling the trigger”

    Great analogy. Let’s say there was a gun that came onto the market and sold well which had this defect. Would anyone, even our strongest and most absolute RKBA advocates, claim that the government couldn’t ban and even recall that gun? Of course not.

    1. Shouldn’t the property owner get to determine how much risk he wants to take on his own property?

      1. D
        Generally, yes…I think most of us would agree with that.

        But these types of viruses have a unique quality. If I take the risk and end up shot by this odd gun, then I have earned my own reward. But no one who does not go onto your property has even a tiny risk of being shot. But with Corona (and any other contagious disease), the difference-maker is that I can go onto your property, get infected, and then infect 81 other people [4th generation of each infecting 3 other people]. And not only did none of these 81 choose to go onto your property, it’s possible not one of them is even aware that I did make that decision…let alone that I am infected.

        I’m all for assumption of risk in most cases. But here, a ton of potential victims never assumed such risk. Doesn’t that distinguish our reality in 2020 from your hypothetical?

        1. I disagree. How is this any different that the risk of carrying a cold into a nursing home? Aren’t we talking about matters of degree? Isn’t it incumbent on the owner of the nursing home to restrict people with illness or potential illness from their property if they so choose in order to protect the health of their tenants? The problem is that because we have a convoluted system of “rights” that don’t even respect the fundamental right they all come from, property, no one actually gets to control it. If government tells me as a business that I have no right to decide who to hire or fire, who to allow into my business and who to restrict, what safety measures to prioritize, what rights do I really have? If we had true private property then every property owner could determine how to screen for illness and whether it is necessary and private labs would have a thriving market for testing materials at a time like this.

          1. No, you are not talking matters of degree, in the context of the rights you talk about.

            There is an aspect of autonomy in our liberty that you only address half-way. You argue that you should be autonomous in your actions, without government interference. In normal times, absent a national emergency (like a global viral pandemic – duh!), I would agree.

            What you fail to address is the nature of the emergency (viral pandemic with easy spread of disease) and that by your exercising your autonomy, your decisions and actions will in fact compromise the autonomy of those around you, not to mention their very lives. Big difference. Put another way: Why do you get to decide to behave in a manner that increases my risk of death, in the middle of a viral pandemic? Because you feel like it?

            I don’t want to come off as unduly harsh. Be safe, be healthy.

            1. “What you fail to address is the nature of the emergency (viral pandemic with easy spread of disease) and that by your exercising your autonomy, your decisions and actions will in fact compromise the autonomy of those around you, not to mention their very lives. Big difference. Put another way: Why do you get to decide to behave in a manner that increases my risk of death, in the middle of a viral pandemic? Because you feel like it?”

              I’m only increasing the risk of those who chose to do so. I’m not trespassing and trying to expose people. But if a grocer is known to allow anyone in regardless of how healthy they are, then anyone that voluntarily goes to that store is accepting that risk.

              1. No dyzalot, you are wrong. You are not only increasing the risk of those who chose to do so; you are endangering them with your autonomous choice. And you have veto’ed their autonomous choice, in so doing.

                1. How? I’m not forcing anyone to interact with me.

          2. Dyzalot, your notion that property is the fundamental right, and the source of all the others, is thinly held. Also, it is unsupported by anything in the founding history of America. Indeed, perhaps the most famous of all the Federalist Papers, Federalist 10, by Madison, presents his argument against sanctifying property at the expense of liberty.

            Because that might confuse you, I should point out that to Madison, liberty was not the crabbed, 20th-century libertarian construct you advocate. Liberty to Madison, and to most of the nation’s founders, was instead the right to self-government. Whenever you read the word “liberty,” in connection with the founding of the nation, you will do well to presume the intention conveyed was that readers would think in terms of the right to self-government, not in terms of property rights.

            The founders did have regard for property rights, and concerns about protecting them. They did not sanctify property the way extremist libertarian ideologues do today. Instead, the founders looked to self-government to vindicate their other rights. For most of the nation’s history, that has been a widely-shared public consensus. Some libertarians today try to dupe Americans into supposing the nation was founded first and foremost on protection of property. Historically, that is nonsense.

            1. Just 4 years after that, the Framers completely repudiated Madison’s propaganda in the Federalist Papers, enacting the 5th Amendment, which placed liberty and property on equal footing AND containing special protections for property.

              So as always, you literally do not know what you are talking about.

            2. What rights do you have without property. You can’t exercise free speech without property. You can’t exercise your right to bear arms without property. You can’t exercise your right of free assembly without property. Property is the fundamental right and all rights stem from the fact that you have property rights in your own person and ideas.

              1. I am not nearly as libertarian as you are, but I certainly believe the protections of property rights in the BoR (based on Lockean philosophy) adopt a version of your argument.

        2. In this environment, anyone who is choosing to come into contact with other people is assuming the risk of being exposed to coronavirus. At least, unless those other people have been isolating as well.

          That’s my only quibble with EV’s post. “[N]ot only can I sicken or kill you when you’ve voluntarily agreed to be around me . . I can end up helping cause the sickness or death of other parties with whom you later come into contact” Yeah, but didn’t I voluntarily agree to come into contact with those other parties who had come into contact with you?

          I’m not a principled libertarian so at some level I think, ok but we all have to go to the grocery store to get food. But the libertarians have a point.

          1. M L: I’m not sure that “choosing to come into contact with other people” is quite “voluntary,” any more than “choosing to shop for groceries” is really that voluntary. But beyond that, the Alzheimer’s patient in a nursing home? The bedridden patient who needs a caregiver?

            “Assumption of risk” can’t be that broad. We don’t say “no tort liability for auto accidents, no criminal liability for drunk driving, because anyone who is choosing to go out on the road is assuming the risk of getting killed,” right?

            1. How is “choosing to shop for groceries” not a voluntary activity? People are perfectly capable of being self sufficient if they wish. Or they can get together a co-op that has rules you must voluntarily follow in order to join. Choosing to enter someone else’s property, no matter the purpose, is a choice.

            2. Also, as far as tort liability goes, do we sue hospitals if we catch an illness there not related to why we went in. Do those that contract staff infections in hospitals get to sue? Shouldn’t the responsibility be on the individual to know that any time he gets involved with a large group of people, he is exposing himself to all kinds of unknown pathogens?

              1. “Staff infections”???
                1. You meant staph, not staff.
                2. You did mean staff, in which case it’s a very on-point and funny pun . . . we’re all scared right now in hospitals of catching something from the staff (and they’re even more terrified of catching something from us, of course).

                I’m going with Option 2 (and I’m totally stealing it from you) . . . in my effort to keep a positive attitude and to keep a sense of humor in the midst of this ongoing tragedy.

                1. Unintentional humor as my brain has a tough time with homophones whenever I’m typing. Feel free to take it though, it works.

            3. I do agree, as I intended to suggest with the grocery store example, there are practical limits. But it seems likely that assumption of the risk should be broader in the context of this crisis. Particularly if as we get more information the estimates of lethality continue to decline significantly compared to previous figures.

              I’m more interested though in the idea that “our society is now insisting” on this. Did it really? Who decided this? Who should decide? Should rural West Virginia be treated the same as San Francisco? Must the people in those places impose their decisions on each other or can they decide for themselves?

            4. “We don’t say “no tort liability for auto accidents, no criminal liability for drunk driving, because anyone who is choosing to go out on the road is assuming the risk of getting killed,” right?”

              Ummm, isn’t that what “no fault” insurance WAS?

        3. Unless you have a giant ranch in Texas, that random bullet is going to make it to someone else’s property. So, too, any infections transferred at the party will be walked out to other property, other people.

          And I think the real issue wasn’t the direct threat of death, but death by overwhelming hospitals too quickly, creating needless deaths.

          If it weren’t for that, the best course would be to hole up the most at risk and let it burn itself out.

        4. If you’re already treating everyone as infected (which people in favor of the lockdown are), then you’re basically assuming everyone has been on that person’s property. Self-isolation is fine if you’re that worried. Insisting other people who you won’t be encountering anyway (because you’re self-isolating, remember) also isolate involuntarily doesn’t help you at all.

      2. What if the gun might shoot the mail carrier or the UPS guy?

      3. As well, due to the advance of technology over the past 200 years, the right to peaceably assemble virtually in almost any size group still exists for most of the population. No, it’s not the same as assembling in meat-space, but it’s a long ways there. It is also the assembling (in meat-space) that presents the risk directly. As such, assuming the ban is reasonably limited in time and scope, it’s not alarming to me.

        On the other hand, in California counties that have classified gun shops as “non-essential businesses” and have banned travel for “non-essential” reasons, the ban seems to make it virtually impossible to acquire a firearm or ammo, which is essential to one’s RKBA. The dodge of traveling to another county that classified gun shops as “essential businesses” would seem to be unavailable as if a gun shop’s business isn’t “essential”, presumably traveling to one isn’t either (at least under San Mateo’s order). As such, there is no practical way for some to exercise their RKBA which makes the ban very concerning to me.

        Of course, reasonable restrictions on gun store operations would be acceptable. The same restrictions imposed on all retail outlets would obviously be acceptable. But even more stringent requirements might be acceptable. For example, requiring that gun shops make appointments for customers in order to control the lines and number of people inside at once might be fine as this would be impractical for grocery stores but would be much more practical for gun shops.

        1. ARGH… I hate this commenting software. This was meant to be at the top level and, when I entered the comment, that’s where the “comment box” was.

          Apparently if you start a comment at one level (as I did at the location that my “misplaced” comment ended up) and then decide to abandon it (as I did), there is a problem. There is no “Cancel” button to abandon a comment so I just reloaded the page and my “abandoned” comment input box disappeared upon reloading. I then went down to the bottom and started entering my comment (above) at the “comment” box at the highest level. Unfortunately, upon clicking on “Submit”, the comment instead ended up nested up above at the (appearently un)abandoned location.

          Disqus anyone?

          1. And, again, I hate this commenting software – no ‘Preview’ and no ‘Edit’ (at least for a short interval such as five minutes).

            In

            This was meant to be at the top level

            “this” was meant to refer to my April.4.2020 at 8:25 pm comment just above.

        2. Australia has banned all gun sales — so rural general stores that sell hardware, food, and farm supplies (in addition to guns) are forced to be closed. Right…

    2. You mean like the Remington 700, which does exactly that, and which the government *can’t* recall?

      It has a defective trigger, everyone knows it, and gun enthusiasts recommend replacing it privately instead of having Remington do it.

      See: https://www.cbsnews.com/news/popular-remington-700-rifle-linked-to-potentially-deadly-defects/

      1. Do you doubt the federal government’s power to issue a recall?

        1. 60 Minutes explicitly stated that the government lacks the authority. Take it up with them — see the above URL and read the transcript.

          1. That’s not true. Congress could clearly authorize a recall.

            If Congress has statutorily prohibited one, that’s a different issue from one of governmental power.

            1. 60 Minutes researched this — I didn’t — ask THEM…

  4. I have little problem with special measures in emergencies such as this as long as its only as much as necessary and no longer than necessary. Unfortunately authorities tend to have problems with the last two things.

    Once rapid and accessible mobile testing becomes a reality we can and should do away with even these exceptions.

    1. AmosArch: I agree with the concern about restrictions extending unnecessarily — but, as I blogged a few weeks ago, the very fact that these restrictions are so annoying and so economically costly suggests that they are likely to be self-limiting.

      1. A significant number of these restrictions are likely to prove to have been unnecessary in the first place.

        1. Even if you’re right, it’ll be pretty hard to prove that counterfactual.

          1. Just about as hard as it will be to prove that the restrictions were necessary to the extent implemented, and effective to the extent claimed.

            1. Correct.

          2. We might have been able to test it if states actually acted like sovereign states instead of subordinate subdivisions of a national government. But we also do have Sweden to watch. My understanding is that they have used “minimal” restriction on individual liberties so far.

            1. Dyzalot….Uh, no. Here are those ‘minimal’ restrictions.

              – The public were urged to avoid mass transit at busy hours and authorities requested stores to limit the amount of people allowed in at any one time.
              – Sports organizations have also been told to cancel upcoming matches and competitions.
              – A ban on gatherings of more than 50 people was put in place.

              1. Yes? I think most in the U.S. would gladly trade those for what we have now. The first two aren’t even mandatory.

                In any event, that leaves plenty of contrast to help determine (sadly, in hindsight) whether the current fearmongering overreactions in the U.S. really resulted in measurably different outcomes. And I took that to be Dyzalot’s larger point, not picking at the precise definition of “minimal.”

                1. Brian…even NYC has mass transit operating right now. So I am not sure what point you are making. Sweden tried the minimal restriction approach and quickly changed course when they saw how badly they miscalculated. Now they have implemented what we have implemented, more or less.

                  It is no better in that socialist paradise…

                  1. even NYC has mass transit operating right now.

                    For those people allowed out of their homes for that limited set of purposes deemed “essential.” Simply having mass transit in operation isn’t a valid comparison.

                    Now they have implemented what we have implemented, more or less.

                    Of course, given a sufficiently murky definition of “more or less.”

                    As I said, if offered the option to largely resume the rest of our lives and stop melting down the broader economy (outside of large-forum events like sports, larger church services, and music concerts), I suspect the response would be overwhelmingly in favor. But percentages aside, the likely robustness of the debate would speak for itself re the level of contrast.

                    1. Just because something is popular, doesn’t mean it’s correct.

                    2. I doubt it’s popular. Most Americans seem to recognize the risks and the proprietary of prophylactic measures. Two or three weeks ago, the ‘Americans reject stay-at-home orders and think the reaction is overblown’ position would have been more defensible. Today it’s a solid loser.

                    3. Apparently, we’ve hit the comment nesting limit.

                      Sarc, my thoughts exactly on the popular–nay, pervasive–bidding war by governors and mayors across this country to try to prove themselves to be the mooooost cautious and shut down their local economies for time spans that are vastly disproportionate to any tangible, realistic, demonstrated level of risk in their communities.

                      Rev, citation needed as usual, but thanks for being civil for a change.

                    4. Life of Brian:

                      After you advance two unsupported assertions (‘most Americans would prefer the alleged Swedish model,’ ‘most people would choose to ‘largely resume normal activity’), I contended that your undocumented claims were not persuasive — and you responded that I ‘need a citation?’

                      Would you like another chance at that one?

              2. That’s pretty minimal compared to most of the rest of the world which is shutting down their economy.

        2. “Unnecessary” is not a particularly meaningful adjective here. Do you mean they don’t help at all, only help a little, or what?

    2. So we go to internal passports like the Soviet Union had???

  5. I don’t have problems with quarantining people against their will, and I’m about as close to an anarchist as you’ll find. But I think the concepts of self-defense and threat work well. My IANAL definition of “threat” is “imminently unavoidable harm”, and no doubt lawyers have opinions on my naiveté. What I mean is I don’t agree with that old saw about “your right to swing your fist ends at my nose”. No, your right to swing your fist ends when I perceive it probably going to contact my nose, and that is when self-defense comes into play. I have every right to appropriately counter your swinging fist before it gets to my nose, as long as I (a) don’t react too late, such that it does contact my nose, and (b) don’t react too soon, before it is even possible to begin its swing.

    Obviously there are variations. A 90 year old swinging a fist doesn’t require nearly the preventative self-defense of a 25 year old professional fighter. A 90 year old aiming a gun may require more preventative self-defense that a 25 year old professional fighter making a fist.

    And so it goes with contagious diseases. If someone shows all the signs of leprosy, bubonic plague, coronavirus, or some other contagion, it is entirely reasonable to keep them distant while verifying what they have going on.

    But there needs to be some counter balance; you can’t just have every uninformed yahoo making wild accusations and locking people up on a whim. My counterbalance is that such actions would be treated as bets of a sort; if you are proved wrong, you suffer the same penalty you inflicted, including all associated costs — lost wages, foreclosed mortgage, etc. Perhaps some “qualified immunity” makes sense, but judged by true juries of peers, not robed judges working for the same employer.

    1. “If someone shows all the signs of leprosy, bubonic plague, coronavirus, or some other contagion,”

      Of course, in this case, they show no signs at all when first contagious – – – – – – –

      What then?

  6. The government probably have the quarantine poorly thought out. Data show that the Covid-19 virus is only more deadly than regular flu to older people and those with compromised health. Those people all know who they are, and should avoid contact with the public either until enough younger, healthier people have had and recovered from the virus to establish a herd immunity or until a vaccine is available.
    People 65 and older mostly do not work, so their removal from the workforce will be of little impact, and most of those with compromised health also do not work. The nation can conduct most business as usual.
    Adjustments for those of working age who live with a member of the at risk groups will have to be made. Shopping hours can be established for at-risk people, as they are now. At-risk people can observe social distancing. The point is, quarantine will be for those at risk and voluntary.

    1. People 65 and older mostly do not work, so their removal from the workforce will be of little impact, and most of those with compromised health also do not work. The nation can conduct most business as usual.

      Oh really, just remove themselves from society? No big deal, right? Um….no.

      1. For three or so months? The economic impact will be very low. Or do you think having everyone stay home is equal to that or less?

        1. He was pretending to misunderstand the phrase as a euphemism for permanent removal.

        2. Dinkle…I did not understand your post to mean temporarily remove themselves from society. I read your post as saying just shunt them off to the side until whenever. You’re talking about a very significant proportion of society, roughly 25%, maybe a little more. Not so easy.

          I don’t think the nation will conduct business as usual for a long, long time. If ever.

          1. He gave an ending condition (herd immunity). Your mis-reading isn’t even plausible.

      2. “Oh really, just remove themselves from society? No big deal, right? Um….no.”

        Isn’t that what everyone is doing now?

        1. ML…In a word, no. Social distancing does not equal removal from society. We are still able to ‘connect’ to each other, but we have to do this differently for a short time. Case in point: Never in a million years did I ever think I’d attend a Shabbat service via Zoom. Just not halakhic. But guess what? I have attended several. Now it is permissible. Very different, but it works for the short term. My Seder this week will be the first I have ever celebrated alone. It feels strangely out of place, but I can make it work. It has been fascinating to see how quickly we have adapted to a temporary new reality.

          For now, a brief time, we must self-isolate. I mean, there is that matter of a global viral pandemic, which is killing more than a thousand a day (that we know of) right now. And BTW, young people do get afflicted with Covid-19.

          I think Dr. Birx and Dr. Fauci are 100% correct when they say that the lives of our fellow Americans are literally within our individual power to save, by slowing or stopping the spread of the Wuhan coronavirus. It is critically important that we immediately put into practice the CDC 30-days to slow the spread guidelines.

          1. What about all the lives that will be lost because of the lockdown? https://consistentprinciples.wordpress.com/2020/03/23/the-powerful-reason-covid-19-lockdowns-may-cause-more-deaths-than-they-prevent/

            You’re pretending as if the lockdown will not have a cost measured in bodies, so you never bothered to notice how big that pile of bodies will be.

            1. That article argues that due to the stress of the situation, there will be more strokes and heart attacks and cancer and AIDS and misscariages.

              This is some incredible motivated reasoning. It ignores the alternate cost entierly. What would the stress be if we were just letting 10% of our population die in overwhelmed hospitals?

              Oh, and there are no numbers to quantify the number of deaths.

              Also it claims to be such a truth bomb it got censored by medium. Not understanding what censorship is or how it works.

              Here is the ending bit:

              recognize that the disaster being wrought by your Federal, State, and local governments is based on the politics of fear. There’s no proof that any of these measures will do any good.

              And I just gave you plenty of evidence that they will do a lot of harm.

              You don’t have to passively cower in your home and submit to senseless limitations.

              You can let your voice be heard.

              1. 10%? What kind of fantasy-land are you living in. Even Fauci puts the worst-case true CFR at 1%. (0.2-1% in an article for BMJ, i believe). Nor is everyone in the US going to be infected, but even if they were, that’s still just 3.5 million deaths.

                The important part of the article is the medical literature it cites to back up its stress claims. That’s the part you should be taking seriously, not the author’s rhetoric. Deaths from the lockdown will be very real, and likely outnumber deaths from covid-19.

                And they at least try to measure the cost in bodies of the lockdown, reasoning from evidence in the medical literature. It’s a lot. Over 5.5 million deaths from heart attacks alone beyond what a no-lockdown world would have seen. Over 3 million excess cancer deaths. And so on. That vastly outweighs even a reasonable ‘worst case’ scenario from Covid-19.

                Want to bet the lost QALYs from those deaths will be a lot greater than the Covid-19 ones, too?

                If you’re going to make a decision on utilitarian grounds, you can’t just ignore consequences like that and be making a reasonable utilitarian argument. If you’re using some other ethical theory, tell me, what ethics allows us to sacrifice relatively younger, healthier, more productive people @ >2:1 for elderly people whose life expectancy is measured in months? Average age of fatality in Italy is something like *85*.

                Bottom line is people are going to die no matter what you do. Stop living in a fantasy world where covid-19 deaths are the only ones that matter. Shut up and do the math.

                1. “Nor is everyone in the US going to be infected, but even if they were, that’s still just 3.5 million deaths.”

                  OK, I have just corrected some of your faulty medical assertions, but now I see this about “still just 3.5 million deaths” and realize I am addressing myself to someone pretending medical knowledge they don’t have, but a moral cretin too. Does “moral cretin” operate independent of the libertarianism or in conjection with it.

                  In any event, I won’t waste any more time trying to enlighten you, I’ll just warn others to be highly skeptical of all that you say.

                  1. So, if any action (or lack thereof) is going to result in the deaths of some people as a consequence of those actions, how would you choose a path if not to compare deaths (and possibly QALYs) for each proposed action?

                    If the medical assertions are faulty, well, i provided a link which cites medical literature. Please provide medical literature (or an article which links to same) that corrects any faulty assumptions here. I’m willing to be wrong on the consequences, so long as they get discussed.

                2. There’s a certain kind of libertarian that would rather be right than worry about things like lives beyond cold equations.

                  1. And there’s a certain kind of person who thinks some deaths are worth talking about, and some aren’t, and only the deaths we’re permitted to talk about matter for public policy.

                    I think the people who are going to die because of the lockdown deserve due consideration here. We need to be able to explain to people why their loved ones died, whether from avoidable medical complications or suicide, and that it wasn’t unnecessary.

                    1. The deaths you are speculating about are not in any way assured as those from this virus.

                    2. well, we’ve reached maximum nesting depth, so this is in response to Sarcastr0 above.

                      The deaths you are speculating about from the virus are also speculative. I mean, you’re the one who claimed a fantastical 10% fatality rate, which is supported by no data anywhere.

                      Yes, the deaths I’m claiming are statistical likelihoods. They’re more ‘certain’ than disease projections, because they’re based on vetted data, unlike the epidemiological models (which even Fauci has claimed are speculative and *unverified* against historical epidemics).

                      And the deaths I’m concerned about are *probably an underestimate*, because this isn’t just one stressful event, this is a month (or more) of stressful events for most people, with little opportunity for the sorts of positive social interactions that can help relieve that stress.

                    3. No – deaths from disease are a pretty well-defined and understood phenomenon.

                      Deaths from ‘stress’ is an amorphous thing that is more about correlation than causation, conflates and includes many factors, some of which are confounding.

                      In other words, it’s BS. Desperate, straw-grasping, unscientific BS.

                    4. Except we aren’t actually doing the work to attribute deaths to covid-19 medically. If you die and test positive for covid-19, you’re counted as a covid-19 death, even if you patently didn’t die from covid-19. (There was an article last week about a 19yo who died from something else and tested positive for covid-19 – you want to bet against him being counted in the covid-19 death statistics?) To get a real answer to that question requires an autopsy – which can’t be done as fast as we’re getting death updates. And in many cases, covid-19 may be unrelated to real cause of death, or a cofactor that exacerbated some other condition that actually caused death. We won’t know until and unless the bodies are exhaustively autopsied.

                      So covid-19 death count is itself speculative. (You also realize the annual Flu death rate isn’t an actual measure of deaths caused by flu, but a statistical approximation of excess deaths – these kinds of statistical techniques are common in ‘death from disease’ measures).

                      Further, it’s hard to measure reality against a counterfactual that never happens. Statistical methods are not BS, nor are they desperate. They’re our best and only way to measure the counterfactual world we haven’t chosen. (It’s not scientific in the sense that we can’t hypothesis test it, but neither is any of our knowledge about covid-19).

                      Do you honestly think the current lockdown situation and media-induced panic-fest is not stressful? Do you doubt stress exacerbates various medical conditions? Do you think neither the lockdown nor the economic downturn will cause suicides that wouldn’t have happened otherwise, despite the historical record demonstrating suicides increase during a recession?

                      If you think none of this matters, and none of it will have consequences measured in bodies, then you have no business accusing anyone else of being callous either, and no basis for saying the lockdown is a good idea (because you have no alternative world to compare it to). If you think we can’t compare it because we can’t accurately measure it, then you might as well disregard all the ‘data’ we have for flu severity and covid-19 too, since we haven’t accurately measured those things either.

                    5. I’d further add that these are reasoned conclusions from the scientific medical literature on stress. It’s better vetted than most of the data on covid-19 is.

      3. People 65 and older mostly do not work, so their removal from the workforce will be of little impact, and most of those with compromised health also do not work. The nation can conduct most business as usual.

        Oh really, just remove themselves from society? No big deal, right? Um….no.

        As opposed to what, everybody removing themselves from society?

        Retirement homes are already sealed like moon colonies.

  7. I’ve read enough EV slippery slope posts to know how to respond to this. It’s okay to restrict liberty because people are potentially lethal without any conscious choice as to their lethality. the argument seems to be that being potentially lethal to others and lacking the ability to consciously choose whether to actually exercise that lethality is what justifies restrictions on liberty. Everyone is de facto lethal, and the element of free will and choice is absent. This reasoning could be extended then to those who are mentally ill and act violently, absent a conscious choice on their part to do so. They are lethal (perhaps based on repeated behavior) and lack the ability to choose not to act lethally (perhaps based on medical assessment). If they are de facto lethal and the element of free will and choice is absent, then restrictions against their liberty are justifies under EVs precedent. I’m sure with a little more sliding we can further extend the logic and apply restrictions to more groups of people.

    All aboard the EV slope to despotism!

    1. What bothers me more is that I think we’ve crossed the Rubicon to a populist revolt of some sort. Possibly peaceful — I truly hope so — but I am not so sure….

      1. I’ve seen you post about this before, but do you actually have any basis for this speculation? Not just a few people who say they are annoyed, or who violate the lockdown rules to go to a party, but outright willing to engage in a “populist revolt,” peaceful or otherwise? Maybe it’s just me, but while no-one is happy about this (except perhaps our dogs), my sense is that it’s mostly being grudgingly accepted as a regrettable restriction aimed at saving the lives of, among other things, our own elderly family members (among others).

        1. We’re a long long ways from any kind of militant revolt. The most I can see is people simply gradually ignoring the lockdowns, going out in public more and more often. It might extend to businesses re-opening if the crowds get big enough that it’s obvious police can’t stop them; governments might try to revoke licenses of a few pour encourager les autres, but that’s the worst I can see happening.

          1. And then what does the state do?

            1. Be fearful of the voters, as usual. That’s why they can get away with this for now. In a while, probably not so much.

              1. When I say “revolt”, I am neither ruling out a “throw the bums out” movement this November, nor a taxpayer revolt in refusing to pay the massive bills that this is incurring. And when I say taxpayer revolt, I mean things like California’s Prop 13 and Massachusetts’ Prop 2.5 — as well as simply refusing to fund things on the municipal level.

        2. I don’t think Ed is really saying a revolt is going to happen. I think Ed is saying he wants it to happen.

          1. No, Ed is seeing the level of coercion necessary to enforce it increasing and historically that indicates that a revolt is imminent.

        3. Not now. When/if it happens it will happen all at once.

          1. It’s never happened yet without signs that it was going to — signs usually only seen in hindsight, but signs nevertheless.

            1. Signs only seen in hindsight are suspect. You can always claim that X foretold Y.

        4. I notice that the NYC store owners are boarding up their windows.
          Now why might they consider that worth doing?

  8. The basic problem remains the same. What constitutes an emergency? Where does it stop? Who decides? The constitution, although twisted almost beyond recognition by now, establishes the parameters of government power. It doesn’t have an “except when we’re scared” clause.

    Even now, the states could be helping to coordinate voluntary measures to protect and provide for the people that most need it, so others could get back to work. Millions of people desperate to do something useful. Yet not a single state or local government is making any such plans, much less implementing them. Instead, sit at home while they burn the village to save it. Don’t worry, they’ll get you a check. All the while, they whine and complain like spoiled children.

    Nothing of the last few months has provided any indication that members of our elected class have the wit, wisdom, or even basic math skills to be allowed to decide for themselves when our rights should be suspended.

  9. The key issue is: Who decides?

    The most important thing to my mind is to keep government power as local and decentralized as possible.

    1. Thank you. It’s disturbing how there are calls for a nationwide lockdown. You don’t want to introduce that dangerous power when local states can do it themselves.

      “So this is how liberty dies, with thunderous applause.” – A lesson from Star Wars…and all human history.

      1. Yes. There is a recurring pattern where some localized tyranny, injustice, or just some supposedly wrong thinking and policy is identified. The supposed problem is the result of some kind of authority and power being abused.

        Now, there are many conceivable initiatives or responses that could be made. But the perpetually alluring and dangerous proposal is to set up a greater structure of authority and power to supersede the localized one, and use this to enforce the righteous way. The problem with this, of course, is that while the greater more universal power might (or might not) be turned to righteous ends in the immediate term, it is fundamentally just as fallible and further abuse is inevitable, only now on a much greater scale.

  10. Comment: I am generally inclined toward “communitarianism,” very little toward “libertarianism.” Additionally, I think Ayn Rand was one of the worst creators of fiction ever recommended to me, and, more importantly, theoretical conversations among libertarians, though they may be intelligent or even hype-intelligent individuals often turn truly bizarre in short order. Dyzalot’s chafing at the limitations imposed upon him by civil society in a democratic country in a time of pandemic impress me as bordering on coocoo, and I say that as someone professionally trained and certified to recognize seriously coocoo.

    1. But perhaps not so well trained in manners.

    2. Scratch a liberal, find a tyrant, I always say.

      There will always be some crisis for the tyrant to exploit. Just look at how gross Pelosi is right now trying to exploit this one for an example of how humans can behave.

      1. It’s no coincidence the deep blue states were the first to jump on lockdowns. The eternal belief in the benevolent and useful nature of the omni-controlling state, as long as “they” are in charge, leads to this cavalier attitude towards repeatedly proven dangers from history.

        Freedom and democracy fail when the people grant the leaders emergency powers that they don’t give up. It’s one thing to say, well, we consciously choose this dangerous path, but acknowledge it and will keep an eye on it, and another to decry such concerns as idiotic when humanity’s sadly few historical excursions into freedom often end up collapsed in exactly this way.

    3. The more an individual participates in the society in which he lives, the more he will cling to stereotyped symbols expressing collective notions about the past and the future of his group. The more stereotypes in a culture, the easier it is to form public opinion, and the more an individual participates in that culture, the more susceptible he becomes to the manipulation of these symbols. The number of propaganda campaigns in the West which have first taken hold in cultured settings is remarkable. This is not only true for doctrinaire propaganda, which is based on exact facts and acts on the level of the most highly developed people who have a sense of values and know a good deal about political realities, such as, for example, the propaganda on the injustice of capitalism, on economic crises, or on colonialism; it is only normal that the most educated people (intellectuals) are the first to be reached by such propaganda… All this runs counter to pat notions that only the public swallows propaganda. Naturally, the educated man does not believe in propaganda; he shrugs and is convinced that propaganda has no effect on him. This is, in fact, one of his great weaknesses, and propagandists are well aware that in order to reach someone, one must first convince him that propaganda is ineffectual and not very clever. Because he is convinced of his own superiority, the intellectual is much more vulnerable than anybody else to this maneuver…

      http://www.swaraj.org/shikshantar/propaganda.htm

  11. Question: Do maximally earnest libertarians, like I take Dyzalot to be, support limits on reproductive choices (contraceptive methods and abortion) consistent with Roe v Wade; are they more permissive than R v W; or as absolutist as the most hardcore Right-to-Lifers. If they’re with the Right-to-Lifers, it’s because religion is trump for them over the liberty principles of libertarianism? Who are/aren’t the “principled” libertarians?

    1. neurodoc: I can’t speak for Dyzalot, but in my experience (1) most libertarians support abortion rights, but (2) some do not, on the theory that the fetus is a person from conception and has rights, too.

      My guess is that there’s something similar as to animal rights: Libertarianism doesn’t tell you that much about the subject as a matter of first principles, because it all depends on who you think is a rightsholder who’s entitled to protection from force or fraud.

      1. You know, we could ban abortion on the same “emergency” basis — a shortage of children…

        1. In which parallel universe is there a shortage of children?

          1. In this one, where every developed country is below replacement, often so far below it that severe averse changes to the demographic profiles are expected? Most of the developed world is currently at birth rates you’d normally expect to see only in the middle of a serious pandemic like the Black Death, or in an active war zone.

            Most of the countries in Europe are going to be unrecognizable in a century, due to the native populations having largely died out and been replaced by immigrants from dramatically different cultures.

            1. Ah, so it’s not a shortage of children, it’s a shortage of *white* children. Got it.

              1. So you don’t have a problem with the elimination of the Native Americans because they were replaced with other peoples?

                1. Had the Native Americans been displaced by normal demographic trends rather than by violence, genocide and theft, I would be fine with it.

                  Normal demographic trends happen. I doubt there is a single place on earth that has the same demographics it had 2,000 years ago. Cultures come and go. Your argument is with basic anthropology.

                  1. Are you familiar with how Islam spread? Or with how Africans became enslaved (i.e. who did it to them)?

                    Violence, genocide and theft are HOW cultures come and go.

                    1. Sometimes. Sometimes cultures come and go due to normal migration patterns. Unless the Native Americans could have put a stop to massive immigration, in time they would have been swamped by European cultures (plural) even without violence, genocide and theft.

                      And that’s really the fear with respect to non-white immigration. Nobody seriously expects non-whites to do to white Americans what white Americans did to the Indians. Rather, it’s that in time, ours simply will no longer be the dominant culture.

                    2. Do you think it’s wrong to want to preserve one’s culture if you’re white?

                    3. Depends on what aspects you’re trying to preserve.

                      Is there actually a single “white” culture, as opposed to British, French, Italian, Jewish, etc. culture?

                    4. Forgot to mention, violence, genocide and theft are also how Christianity came to Northern Europe and South America. Mr Ed conveniently left that part out when he singled out Islam for special mention.

                      Sam, I think there’s a natural desire for “your team” to be on top, but there is no right to have your team be on top in perpetuity. No culture stays on top forever.

                    5. @Krychek_2

                      I didn’t say “White culture” is said “your culture if you’re white”.

                    6. Sam, tell me what exactly the term “your culture if you’re white” means to you. I have a suspicion that different people understand that term to mean different things, so we may not be talking about the same thing. Before we continue, what do you mean when you say “your culture if you’re white.”

            2. severe averse changes to the demographic profiles

              Ban abortion because we need more white children?! FFS, Brett.

            3. Brett, would you support an abortion ban for whites, but abortion on demand for everyone else? Because that seems to be one possible conclusion from your premise.

              1. I think he’s just a support of Planned Parenthood and other progressive institutions who otherwise target The Poors for their virtual sterilization crusades.

      2. So religion is trump over the otherwise ineluctable logic of libertarianism? That’s fine for those who so believe, but the problem is for those who don’t and don’t want a woman’s freedom of choice with respect to reproduction circumscribed beyond the limits of Roe v Wade.

        “theory that the fetus is a person from conception and has rights, too.” I don’t know how such a theory should be characterized except that it is not one rooted in science. And the Catholic Church, when/where it has had the power to do so, has tried to go pre- conception, outlawing forms of contraception that prevent the creation of a fetus. On abortion, I’m with most libertarians.

        (How might protection against fraud come into play where “animal rights” are concerned?)

    2. I’ll answer. I have actually been on both sides of it at different times as it really comes down to when “a life with rights” starts. But after hearing Walter Blocks “middle ground” argument a few times, I think I’m persuaded. The idea is that the mother can “evict” from her body at any time but can’t just kill it. So no cutting the baby up inside and sucking it out. Once evicted the mother has given up all rights to the child and interested third parties are free at that time to try to save or raise the child as their own. Works for me as property rights are kept intact while also preserving the right to life as much as possible. And potentially as medicine gets better, more children may be able to be saved “post eviction” if they are so desired.

      1. That wasn’t my point — instead, I was suggesting that this national gulag approach is establishing a precedent that could be applied to pregnant women where the social need of having the child justifies the elimination of all relevant civil rights of the woman.

        Taken to it’s logical extreme is The Handmaid’s Tale where infertility has led to those women still fertile being forced to become baby factories for the greater good of society. And if you think about this, it really isn’t that different from forcing men to be drafted for military combat for the greater good of society.

        This goes to my point to Professor Volokh regarding the difference between the 1930’s and today — I don’t think a military draft would be tolerated today.

        And I don’t think the lockdowns will be tolerated much longer.

      2. This “middle ground” has at least a couple of consequences that you wouldn’t expect to be endorsed by the same person:

        1) A woman will have to risk her life or health to have an abortion when the safest method for her involves killing the fetus before removal.

        2) A woman can, on demand for an reason, terminate her pregnancy in the third trimester and perhaps the baby will die as a result.

        1. “1) A woman will have to risk her life or health to have an abortion when the safest method for her involves killing the fetus before removal.”

          There are many cases where the hard core libertarian requires you to take more risk to achieve your goal than you’d have to if your life was the only one that mattered.

          “2) A woman can, on demand for an reason, terminate her pregnancy in the third trimester and perhaps the baby will die as a result.”

          This will be remedies by advances in science. No solution for the abortion question is simple or perfect. But this approach seems to keep the woman’s property rights intact while not entirely ignoring the right to life of the fetus.

      3. No cutting of anything when RU 486 and methotrexate are used to bring about a termination of pregnancy, or “eviction” of the fetus for your “middle ground” approach.

        (Sorry, didn’t mean to drag this thread off to a discussion of abortion. Just trying to understand how much came under the umbrella of some commenters’ personal versions of libertarianism. It is revealing and disconcerting when in the course of it, Samuel Gompers throws out, “Do you think it’s wrong to want to preserve one’s culture if you’re white?” A touch of “black” humor given the “culture” of his chosen nom de plume?)

    3. This is not directed at you, doc. But most of the “how can libertarians be pro-life?” head-scratching incredulity bandied about in so many Internet comment sections is usually a strawman of libertarianism. If one regards libertarianism as mere anti-government or anti-authoritarian rabble-rousing, then, sure, being a pro-life libertarian seems like a contradiction for all the obvious “Hey! I thought you guys didn’t like duh government!” reasons. But if one understands that libertarianism stands for the notion that the only legitimate function of government is to protect citizen A from the deliberate infliction of harm by Citizen B, it doesn’t take any great leap of logic to see how libertarians might frown on Citizen B (the mother) vacuuming out the brains of Citizen A (the human being in her womb).

      1. The answer to which is that even if I agree that the fetus is a person from the time of conception, I could not legally force you to let me sleep on your couch for nine months, no matter how badly I needed to. The idea that I can take over your body for nine months is simply beyond the pale.

        1. Quoting Justice Blackmun from Roe:

          The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. […] If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.

          1. While I agree with Roe’s bottom line, I never said I agreed with every line in it. By what right would the fetus, even if a person, be allowed to seize someone else’s body for nine months?

            1. Same logic that if you invite someone on to your boat, take them into the middle of the ocean your property rights don’t give you the right to “evict” them from your boat out there. So they basically are “allowed to seize someone else’s property” in order to get to shore safely. Or in the case of the fetus, to make it to viability safely.

              1. Right, the special duty exception under tort law. Except I’m not sure it applies here.

                For one thing, not every pregnancy is “invited”. Birth control sometimes fails. Rape and incest happens.

                For another thing, pregnancy is not a risk-free proposition. As with any other medical condition, it has potential complications. Even if I invited you into my boat, if you become a threat to my safety, I think I probably can evict you.

                For another thing, few boat trips last nine months.

                1. Seeing as how birth control is free and a vast majority of pregnancies are conceived through voluntary means, I believe that the special duty exception applies. Also no, I don’t think you can evict me from your plane (as an example) if you all of a sudden lose an engine and become too heavy to fly. Just like you can’t be evicted from a hot air balloon even if you need quick altitude due to an obstruction.

  12. I’m largely in agreement with the Professor. The Constitution grants the people rights, but the rights aren’t unlimited. In times of crisis, certain rights can be limited, as needed. There is a large amount of case law on regarding many of these rights, and how a crisis can limit or restrict them. Whether it be limits on the right to assemble, due to an epidemic, or other limits.

    The Bill of Rights is not a suicide pact. Wisdom can limit the rights in times of crisis.

    Where we need to be careful however, is those people and governments who haver pre-existing beliefs, and use the crisis to crush those civil rights that they don’t agree with. History is filled with examples of governments who have used a crisis to file away the rights of the people, rights that never seem to return once the crisis has ended. Or the crisis “never ends”.

    Whether this be further proposed restrictions on the second amendment, or the media and the first amendment, or excessive restrictions on the freedom of religion, vigilance is required in order to preserve our rights. And if a media organization can continue working as long as 6 feet of social distancing is done, we need to ask ourselves why a religious organization cannot?

    The Bill of Rights is not a Suicide Pact. But extensive vigilance is required in order to ensure that a “crisis” does not result in the Bill of Rights evaporating forever.

    1. “The Bill of Rights is not a Suicide Pact”
      Nothing here is requiring citizens to commit suicide.

      However, since the numbers on this disease were initially based on propaganda from communist China, and later based on numbers specifically manipulated for political purposes, we are late to the game in basing policy on actual fact. The ‘proper’ number of people allowed to “freely assemble” started at 500, and went down to 10, based on political calculations, not any pretense of science. The total bans, opposed to thought out restrictions on the most vulnerable and.or the most threatening, were also a political knee-jerk, completely ignoring both the economic factors as well as the need for developing a herd immunity. However, the political response fits well into the desire for government control of every economic facet of society.
      As a retiree with no co-workers, and no children at home, I am among the least affected by the actual disease. However, the government directed disruption, possible destruction, of the economy is putting my mental health at risk through eliminating human contact, and my financial health at risk through damage to the results of 45 years of labor.
      What is more likely to cause my death, not by suicide, is the future consequences of the actions taken at this time by the state and federal government. Five years from now, inadequate medical care as a result of the forced changes in medical care specifically, will not be logged against these times.

      1. “The Bill of Rights is not a Suicide Pact”
        “Nothing here is requiring citizens to commit suicide.”

        A little context here is needed. What this refers to is a quote by Robert H. Jackson in 1948. The full quote is “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

        The suicide pact does not refer to suicide by the individual citizens, but suicide of the nation. IE “the belief that constitutional restrictions on governmental power must be balanced against the need for survival of the state and its people.” IE the Bill of Rights taken to extreme examples would result in the fall of the nation.

        1. And I reply to it with:

          “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

          Justice Louis D. Brandeis, dissenting, Olmstead v. United States, 277 US 479 (1928)

          1. To which I’ll respond with the last sentence of my OP.

            “But extensive vigilance is required in order to ensure that a “crisis” does not result in the Bill of Rights evaporating forever.”

            1. Suppose there were a pandemic that were taking lives in the tens of millions instead of the current few thousand, which caused a nationwide panic. That’s precisely the set of circumstances under which fascism comes to town. At which point, I agree with Armchair Lawyer that it’s better to avert the crisis, even if it temporarily infringes liberty, than to lose liberty itself.

        2. Robert H Jackson was a fool or a liar when (and if) he said that. Anarchy or increasing government power were not the only choices – and either one was a good choice. He lived in a century when at least 100 million were killed by oppressive governments, and he wanted to increase the power of governments. Trading liberty for safety is an illusion – except for the elites (who never lose their own liberty in such a trade-off), people become less safe when they lose liberty.

    2. The Constitution grants the people rights

      The Constitution does not grant rights. You have them inherent to being human. The Constitution lists some, and notes others exist even if not listed. They were concerned politicians would ignore rights if not listed, but if they were, some would claim those were the only rights you had. Both concerns turned out to be very accurate.

      Never let your mind get into the way of getting on bended knee for the powerful to grant you rights.

      1. Perhaps a better wording would be, the Constitution helps people recognize and protect their rights.

        Better?

      2. Politicians also ignore the listed rights, except for a slight chance that some court will rein them in. BUT I’ve never heard of an American court taking action to prevent the same politician from trying to enact the same or a different rights violation – not issuing indictments and arrest warrants for the rights violators, not finding them financially responsible for the costs to the person whose rights were infringed, and hardly ever even compensating that person out of tax fund.

    3. “The Constitution isn’t a suicide pact” is, I’ve observed, mostly said by people who are asserting that it WOULD be a suicide pact if followed, and so, as with any suicide pact, should be violated.

      1. And in certain contexts, taking pieces of the Constitution to extreme examples, it would be a suicide pact.

        The right to bear arms, for example, doesn’t extend to the right for private individuals to freely to carry nuclear weapons into the US. Freedom of speech does not mean any and all libel and slander is legal.

        1. I would argue that the right to bear arms does extend to nuclear warheads. Just because my rights aren’t protected in full doesn’t mean they don’t exist. In fact, if I as an individual don’t have a right to do something, then how do I give my government that right? What’s the philosophy whereby governments created by individuals somehow are granted powers that the individuals never had?

    4. The Constitution doesn’t grant any rights. It was created to protect already existing rights.

    5. “The Constitution grants the people rights, but the rights aren’t unlimited.”
      Reasonable restrictions must not deny the exercise of our rights as many court cases have shown.
      It’s reasonable to require masks and social distancing when people are out in public. It is not reasonable to prohibit going out in public. It is reasonable to limit the amount of people in public spaces to maintain social distancing, It is not reasonable to prohibit peaceable assembly altogether.
      This also brings up the question of what is public space. Is a vehicle an extension of your home in this case, as it is for some other purposes. This would be reasonable as there is virtually no chance of passing on the virus while out for a Sunday drive.

  13. “Often libertarian … more often utilitarian…”

    1. I don’t see a utility calculus. Pragmatism is not the same as utilitarianism.

      1. “the doctrine that actions are right if they are useful or for the benefit of a majority.”

        HTH

        1. Depending on how you define utility, that’s not a very useful definition.

          I think you are conflating pragmatism with utilitarianism.

          1. That’s how the Oxford Dictionary defines “utilitarianism”.

            Good lord.

            1. I’m not disputing the definition, I’m disputing your application of it.

              If mentioning ‘lets look at saving lives’ is utilitarian, I question the utility of the phrase.

  14. While I agree with libertarians that liberty is an important value, I disagree that it is the most important, over-riding value that trumps everything else. Public health is a nice thing to have too.

    Cholera was eradicated in this country because property owners, whether they wanted to or not, were required to hook up to a common sewer system which property disposed of waste water. I’m good with that result. I’ve visited parts of the world where cholera is still a problem. Whatever was lost in the liberty rights of property owners was more than made up for in the eradication of a fairly nasty disease.

    1. “While I agree with libertarians that liberty is an important value, I disagree that it is the most important, over-riding value that trumps everything else.”

      What makes liberty the most important value, is that once you lose it, you’re not free to pursue any other value, either. You just get as much of the other values as somebody else decides to let you have.

      You might imagine walking into a restaurant, and somebody offers to pay your bill so long as you let them order your meal for you. (And no backsies!) You look at the menu, everything looks acceptable, so you agree.

      “My friend here is fasting, nothing for him. I’ll have double portions, thanks.”

      1. But it’s not a black and white, either or. There is no such thing as a society that’s 100% free, or a society that’s 100% totalitarian. There’s always going to be a mix. So the question is getting the proportions right so that people have as much liberty as possible without jeopardizing other important values like public health.

        I would oppose locking up the entire population in medium security isolation wards to contain the pandemic, but nobody is suggesting that (even if the government actually had the resources to do it). On the other hand, if there is a demonstrated correlation between closing non-necessary gatherings as a temporary measure until the pandemic passes, and flattening the curve (and there is such a demonstrated correlation), then I don’t see it as the first step toward Stalinism to do that as a temporary measure. Eventually the pandemic will be over and we can all go back to doing whatever we were doing before.

        1. “I don’t see it as the first step”.

          People rarely see the first steps towards totalitarian states when they are occurring. It’s only in hindsight that the events were made more apparent.

          1. Armchair….That is true. Hindsight is 20/20.

            1. But the practical problem continues to be trying to predict in advance. Is it theoretically possible that these restrictions we’re seeing could be a first step toward Stalinism? Yes, it’s possible. It’s also not very likely. It’s far more likely that after the crisis is over, things will go back to more or less what they were.

              If you’re going to insist that we can’t do anything that might possibly be a first step toward Stalinism, then we won’t be able to do much of anything about anything, since every law has the possibility of metastasizing into something else. But usually there are second, third, fourth, and hundredth steps before we actually get to anything sinister.

    2. Cholera was eradicated in this country because property owners, whether they wanted to or not, were required to hook up to a common sewer system which property disposed of waste water.

      That’s not how Cholera was eliminated. Waste water wasn’t properly disposed of until the mid 1970’s — before that, it was straight pipes into the river or the ocean, and I’m told that it was not uncommon to see human feces floating down our rivers.

      No, Cholera was eliminated via the provision of clean & safe drinking water, the consumption of which was voluntary but widely adopted because of the preference to drink clean & safe drinking water. The only coercion was in the taxes to pay for it, and initially it wasn’t that expensive.

      Much of the country STILL does not have a common sewer system — I don’t — we have our own septic tanks. Now heavily regulated for other (environmental) reasons, they weren’t at all when Cholera was eliminated.

  15. Right now, our bodies (at least until the availability of highly reliable tests for not being infected, or, better yet, being immune) are, for most of us, a potential source of infection and thus injury and death to third parties.

    This is true all of the time. Is there some threshold of infectability where people switch from being “free to walk around” to “not free to walk around”? What is the threshold? (Is it “when the press makes a big deal about it”?)

    We could have these limitations in place all the time, and fewer people would die of influenza. Why don’t they matter?

    1. Eyeroller (and others here who oppose the quarantine):

      Since no one is omniscient, it’s impossible to know in advance the results of quarantining, or not quaraning. All our officials can do is to go with the best available information (unless they’re Trump and make a practice of ignoring the best available information), use their best judgment, and hope for the best. We will never know to an absolute certainty if all of these measures are doing good or not. Nor will we know, if they hadn’t been put into place, if an additional million Americans would have died.

      So rather than put every decision under a microscope and harass people trying to protect the public health, maybe just once you could support the people who are trying to get us through a crisis.

      1. “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

        1. Dr Ed., that quotation is based on the assumption that the only value worth caring about is liberty, a value I dispute. Liberty is nice. So is public health.

          I’m not normally a huge fan of Sigmund Freud, but he wrote an absolutely brilliant essay entitled The Future of an Illusion in which he pointed out that the concept of civilization is at war with individual liberty since the whole notion of civilization is telling individuals that they can’t do things they want to do. It’s short. You should read it. The Rev. Arthur would love it because he trashes religion in it too.

          Libertarianism is basically a philosophy for petulant teenagers who can’t stand the idea of someone telling them what to do, even if that someone is right.

      2. ” it’s impossible to know in advance the results of quarantining, or not quarantining.”

        But we DO know the results of shutting down the free economy, and depending on the whims of the ruling class.

        And the results of not quarantining are known; some people will get sick, some of those people will die.

        And the results of quarantining are known; some people will get sick, some of those people will die.

        1. the free economy

          Libertarians call it the free economy when they’re defending it, but when talking about it’s bad consequences love to point out how we don’t actually have a free market because the government has regulated it.

          Prof. Volokh pointed out how our threshold of risk tolerance has likely gone down in the modern era.

    2. That “potential source of infection” part is what has me confused. I thought that I had read on this website that a government’s right to quarantine involved proving that a person was sick.

      Here in Ohio, our lead doctor has said things along the lines of, “if you have these symptoms, assume you have COVID-19 and self-isolate.” Just a few days ago, when she was presenting her scary numbers, she indicated that over 38,000 tests have been conducted in Ohio, but we had just over 3,300 confirmed cases. If over 90% of the people being tested are not positive, how is the government proving that we are sick or carrying? (Second question, if these people are ill enough to get tested and don’t have the virus, what in the hell is making them that sick?).

      1. It’s not a random sampling.

        Partially it’s going to be sick people, raising the rate. Partially it’s going to be the rich and connected, lowering the rate.

        1. I know it’s not a random sampling. They’re claiming that the only people being tested are the ones who need it, i.e. the really sick people and those that treat them. Isn’t it concerning that you’re testing a population more likely to be positive, but the results aren’t showing that positivity?

          1. 1) Where is your source for those numbers? My Googling doesn’t turn that up.

            2) My point above is that there are biases that go both ways. I’d guess that the bias towards being hospitalized would dominate, but that would only be a guess.

            1. Coronavirus.ohio.gov. If you click the dashboard icon, there is a link to “key metrics”. As of today, they’re reporting 4,043 confirmations and 43,756 tested.

              1. I see the number of total cases is well above the number of total hospitalizations, which means there is something else going on than that the tests are administered only to the seriously ill.

        2. Partially it’s going to be the rich and connected, lowering the rate.

          Not if they are at higher risk. My guess is that most of those at the infamous Biogen Conference had six figure salaries.

  16. I am far from “harassing people trying to protect the public health.” I am questioning Volokh’s logic.

    Just a reminder: this blog appears on reason.com, a libertarian website. To suggest that libertarians ought to shut up and withhold their opinions is pretty outrageous.

    1. As with the numbers from communist China, I suspect the designation of this website a libertarian.

      1. Who needs COVID tests when you have purity tests.

  17. “My sense is that our society is now insisting on a much lower threshold of acceptable risk, perhaps because we have gotten so used to a very low death toll from casually communicated illnesses (mostly from the flu and similar diseases). One can certainly debate whether we have adopted too low a threshold: Perhaps massive restraints on travel and assembly might be acceptable for diseases with the lethality of Ebola or some unvaccinatable-against mutation of smallpox, but shouldn’t be acceptable for this strain of coronavirus.”

    This is certainly part of it. The problem is that it demonstrates how ridiculously risk-averse we are. If we can roll over liberty for even small marginal risks, then do we really have liberty at all? There’s risk associated with just about anything we do – surely there must be some line besides ‘has the media whipped us into a fearful panic’. For a comparable instance (where the media is working hard to instill panic), consider the ‘sex trafficking’ fearmongering – is the loss of liberty worthwhile to catch very very few legitimate sex traffickers (which proves the risk is inherently very low)?

    As far as your ‘people are dangerous to you unintentionally’ line of reasoning – the right to assembly comes with risks that people will be dangerous to you *intentionally*, in ways you can’t control, and in some cases in ways that can ‘follow you home’. An engineered pathogen isn’t out of the question (or potentially just small pox), nor is an aerosolized hallucinogen. (I’ve seen at least some claims that Assad used the latter in Syria). Certain dosages of radiation wouldn’t cause immediate health consequences, but would ultimately kill you *and* make you a radioactive hazard to others for a significant period of time. All of these evils could be inflicted on a group without their knowledge or consent, and come with spillover threats to others not in that group, yet we don’t ban large gatherings because some psychopath might, at any moment, have a devious plot underway.

    Liberty means you get to make your own choices. If covid-19 scares you, stay home. Similarly, you can weigh the risks of some terrorist deploying small pox, aerosolized hallucinogens, or a radiation burst on a place you plan on being, and decide whether it’s worth the risk.

    1. This post is full of just saying ‘your line is drawn in the wrong place’ without anything to back that up but personal preference and attempts to analogize to other risks of much, much, lower quanta.

      I disagreed, but thought you were fine in your first paragraph just saying ‘I think the line drawing here is wrong.’
      But you kept trying to back that up with facts that are…disputed, to put it nicely.

      Bottom line, society, via the government, should be making the risk decision, not individuals. If COVID-19 scares you, many can’t stay home.

      1. No, society should not be making the risk decision, because the incentives are all wrong. It overestimates the risk of rare or novel threats, and mis-applies threat construction to justify policies to government’s advantage (US responses after 9/11, for example, including Iraq II, use of torture, PATRIOT Act, etc…). It also inexorably drives society towards catering to the most fearful, ignoring the very real trade offs and restrictions on liberty that come from that.

        Public policy degenerates into a series of witch hunts against whatever the media has convinced us is dangerous. Might as well respond to moral panics about razor blades in halloween candy by cancelling halloween, and the moral panic over stranger child snatching by installing surveillance cameras everywhere and banning white vans. In the real world, safety is generally neither the only nor the most important value.

        “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” – Franklin

        1. Squirrelloid, Franklin was esteemed as one of the world’s leading scientists—in America, and even more so in Great Britain and Europe. Today’s world offers no comparable figure to match the breadth and reach of Franklin’s scientific reputation. He was a pioneer in using data to model scientific phenomena. He deduced the presence of the Gulf Stream by studying ship’s logs. He was the first to understand that great storms which struck the American coast with ferocious easterly winds did not come from the east, but from the west and southwest. He discovered that by collating newspaper reports of storms from all over. In short, Franklin worked and thought in very much the same way epidemiologists do today. He started with empirical observations, collated them, and extrapolated toward systematic insight.

          Franklin was also a skeptic about rights, by the way. He thought too much deference to individual rights tended to shut down needful discussions about public affairs.

          Franklin’s approach to public affairs was very much about organizing collective action, both through government, and by the mobilization of private organizations, which he sponsored prolifically. And of course he more or less invented the mainstream media.

          The “Liberty” Franklin referred to in the famous quotation you cite was the liberty of self-government for the nation. It was not about personal liberty, nor about personal rights, except insofar as self-government offered a means for citizens to secure the ones they agreed upon.

          Taking all that together, you can see that Franklin and you are poles apart. The temperament disclosed by Franklin’s massive historical record could not be more opposite from the direction and tone of your advocacy here. Far from being an heir to Franklin’s thought, today’s libertarianism is an anti-Franklin ideology.

          1. Considering you got the context not only entirely wrong, but backwards (the specifical liberty that quote was in reference to was freedom from state taxes, and was written long before the revolution in a 1755 letter), I can hardly find myself convinced by your non-scientific claims about Franklin, including his stand on rights (which seems to be very skeptical of state power).

          2. It also bears mentioning that while “He started with empirical observations, collated them, and extrapolated toward systematic insight.” might have passed for science in the 18th century, it is not scientific today. It’s very much a discredited positivist idea (verificationism) of how science should work, and thus fails at being scientific, because it never actually *tests* the proposed theory. Science works in entirely the opposite way – by looking for the failure to predict rather than successful predictions. I recommend reading some Karl Popper, to start with.

            As such, I certainly hope that’s not what epidemiologists are doing, because if it is, they’re doing it wrong.

        2. Those were indeed Franklin’s words, but you like so many others don’t understand what he meant by them because you have wrenched them entirely out of context. Look up the history, which pertained to who would bear the expense of frontier fortifications in PA against Indian attacks, and you will see it’s total irrelevancy here.

          (You know MarieAntoinette did not call for the peasants did get along on cake rather than bread either, but who cares when you are going for effect rather than historical truth.)

          1. I am actually aware of the context, and it is relevant. It was against taxing some (the Penns) for the benefit of others who were fearful of native attack, because said taxation (for those frontier fortifications) was an infringement of liberty.

            Seems pretty analogous to me. Some people loudly demand government action because they are afraid. Why should that infringe other people’s liberty?

            It’s not even clearly Marie Antoinette ever said “Qu’ils mangent de la brioche”. If she had, she certainly didn’t call for them to eat cake, it’s true, but it was likely invented by enemies of the monarchy as a propaganda claim. That’s a rather different circumstance of the person never having said the thing that’s attributed to them, so i’m not sure what your point is here.

    2. What terrifies me are the next six times the government thinks it needs to do this again…

      1. With a pandemic striking every century or so, that quite a long-term perspective . . . and an extraordinarily low terror threshold. Maybe talk with someone about that . . .

        1. Not counting 1917-18 spanish flu, there were flu pandemics in 1889, 1957, 1968, and 2009 – no mass quarantines were instituted nor were businesses closed in at least the latter three. (The 1889 pandemic killed 1 million people and reached peak mortality wherever it appeared in 5 weeks, despite no air travel. The 1957 H2N2 pandemic also killed ~1-2 million people, including 116,000 in the US. The 1968 H3N2 pandemic killed ~1 million worldwide and ~100k in the US. The 2009 H1N1 pandemic killed under 600k, about is estimated about the same lethality as seasonal flu).

          There was SARS in 2002-2004, which did go worldwide, but fortunately wasn’t infectious enough to really balloon in cases (it was far more lethal). There also an Encephalitis Lethargica pandemic from 1915-1926 that killed ~1.5 million people. A 1961-1975 Cholera pandemic (don’t have a death toll for that one). And a Mumps epidemic (ongoing).

          And however you want to count it, small pox killed an estimated 500 million people from 1877-1977. That’s ~5 million people per year. (AFAIK, no government ordered its people locked down for that period of time).

          Every century would be a gross misreading of history here. Pandemics are just kind of normal.

          And that’s not even counting a ton of localized epidemics which didn’t hop regions or countries to become pandemics.

          1. Do you have a citation (link?) for those mortality numbers?

            1. I spot checked his numbers.

              The top hit when I googled ‘flu pandemic mortality’ was this CDC page. If you click through to the links for the various epidemics the numbers agree with Squirrelloid.

              A similar search for smallpox found the wikipedia smallpox page, which also agrees with his numbers (“Smallpox is estimated to have killed up to 300 million people in the 20th century[15][16] and around 500 million people in the last 100 years of its existence.” … footnoted to a book titled “Smallpox : the death of a disease” by D Henderson.

              I don’t really agree with Squirrelloid’s thesis, but he’s making reasoned, supported arguments, not just making ad hominems and arguing by assertion.

              1. Yeah, i started with the CDC flu numbers. (They’re actually on the low end of estimates for the ’57 flu). There’s a decently referenced wikipedia page on epidemics throughout history that I picked up some of the other ones.

                It’s worth remembering that population has doubled several times over the last 150 years, so 1 million today would be a lot lower death rate than 1 million in ’68 or ’57.

                And it’s probably worth pointing out that the USFG specifically chose not to do anything during the 1968 flu pandemic. It let it run its course. The economy didn’t even blink.

      2. Your speculation based on suspicion of the government isn’t really very predictive.

        How about we deal with the next time when the next time happens.

  18. Seeing the amount of commentary on the topic, would four or more people be interested in a Zoom meeting to discuss?

    1. Librarian, I’m not sure what topic you have in mind, but I’m curious as to the mechanics, that is the details of how you would go about arranging it.

      1. Thanks for the question neurodoc. The topic would be, why should the constitution matter less during times of crisis? Of course, there are other hot-topic questions flowing from that, such as:
        * should the government close down the churches that refuse to stop meeting?
        * does the climate crisis justify a shelter in place order?
        * how many more government checks should be sent for economic relief?
        * is the federal government doing enough to procure ventilators and PPE, or should that be left to each state?
        * what does bat taste like?

        The meeting time would be by vote. Each participant has the opportunity for a 2-5 minute to answer, followed by free-form back and forth for up to ten minutes or when the group votes to move on to another topic. Anyone can feel free to suggest new topics as moved.

        1. Should the government have the power to (a) shut down fast food and ban other unhealthy foods and/or (b) mandate citizens participate in daily exercise to combat the obesity ‘epidemic’, which likely contributes to more deaths than coronavirus ever will? If not, why are the risks inherent in not exercising and eating junk food more acceptable than the risk of catching coronavirus?

          1. “If not, why are the risks inherent in not exercising and eating junk food more acceptable than the risk of catching coronavirus?”

            Because heart attacks aren’t contagious? I can live on nothing but pork rinds and my early heart attack doesn’t increase your risk of a heart attack.

            1. Your behavior affects the probability of you dying from both. (Social distancing reduces the probability of spread to you, and you can social distance without demanding other people do it. Similarly, avoiding foods which cause heart attacks doesn’t guarantee you won’t get a heart attack, it just lowers the probability). Statistically, there really isn’t any difference.

              1. I’m not sure I completely understand your comment. If you believe that arteriosclerosis and virii are epidemiologically similar, we’ll have to disagree.

                But your other point seems to be something like “your neighbor eating pork rinds doesn’t affect your arteries – you don’t have to eat them yourself – so you shouldn’t object to your neighbor’s diet”. Fine, I agree with that.

                Then, IIUC, you are extending that to “you can protect yourself from an epidemic by staying home; as long as you sufficiently isolate yourself you don’t care what happens outside your door, so just like pork rinds you should let your neighbors socially isolate, or not, as they see fit”. Did I get that right?

                And, if we all still lived on 40 acre self sufficient farms, I’d go for that; just stay home on the farm if you don’t want to get sick.

                But we don’t typically live like that any more. If you are staying home now to do that, you are able to do so only because lots of people are not staying home – they are going to work every day to keep the electricity flowing, the water coming out of the tap, and the sewers working. You probably still expect the police to come if there is a burglar, and the fire department to come if there is a fire, and if those pork rinds catch up with you, you expect an ambulance to take you to a hospital full of nurses and doctors. And all those people don’t have the option of just staying home on their 40 acres.

                And I’d argue that you implicitly accepted this social contract when you moved to town.

                (If, OTOH, you are in fact living on a self sufficient farm in rural Nebraska, then I apologize for the infringement)

                1. I would say that by moving to town and off that self-sufficient farm, you accepted that kind of risk in the first place.

                  But you’re also talking about this as if perfect protection needs to be possible. It doesn’t. Fit vegans do have heart attacks, just at a much lower rate than pork rind bingers. Choosing not to attend large gatherings and voluntarily social distancing when you do have to go out (to the grocery store) reduce your risk of being infected, as does frequently washing your hands and avoiding touching your face. Risk will never go to zero. Even people who never fly occasionally die in airplane crashes, after all (ie, when the airplane lands on them/their house).

                  So, faced with a risk, you can choose to adapt your behavior to reduce your risk, or you can choose to behave in riskier ways.

                  (FWIW, i live in a suburb. I’ve left the house ~1/week for groceries since virtually nothing else is open. And the absolute worst thing for social distancing was making people panic, because I’ve never seen the grocery store more crowded then when the media whipped everyone into a frenzy over covid-19. That was… counterproductive… for all the people who did want to reduce their risk. As was sending college students home to their likely over-50 parents, causing a rather large migration of young people across the country and into the homes of more vulnerable peoples. The various closures and lockdowns increased risk for those who would have chosen safer personal behaviors rather than decreased it).

                  (And like all other risk-reward choices, some people should be able to choose riskier behavior for increased rewards. Working in a coal plant is probably riskier than not changing your behavior with respect to this coronavirus, and yet people choose to do it. People have different values, and safety isn’t everyone’s top priority.)

          2. Squirrelloid, it’s the refrigerator trucks full of corpses. They are bad for morale. If you want to deliver uplift, you are going to have to point to some good old-timey pandemics which featured heaps of corpses in the streets, plus a good time had by all.

            1. Yes, because only coronavirus kills people. Excuse the eyeroll.

              Ignore the fact that the lockdown itself will probably cause more deaths than coronavirus will directly (in suicides and stress-triggered health complications). Ignore that many of the people who die from coronavirus would probably have died before the year is out anyway. (The average age of the dying is in the 80s, frequently with comorbidities. I don’t know what the average QALY loss is from a covid-19 death, but based on that age average, it wouldn’t surprise me if it was less than 1).

              In a normal year, 300,000 people die from complications attributable to obesity. That’s more than the 220k Trump quoted if nothing was done about the coronavirus. Apparently those refrigerator trucks full of bodies aren’t sufficiently bad for morale.

              Tell me, in your world, why do some bodies count and some don’t?

  19. I’m a few days behind and just read this. What an excellent post!

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