The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I would not have thought it necessary to discuss this, but it has become a surprisingly widespread talking point that it is "paternalism" and a sign of an encroaching "nanny state" for government officials to take drastic actions to stop the spread of COVID-19. Perhaps this is not surprising since the American government has suddenly become much more interventionist in daily civic life, and there is no doubt that the government's recently announced policies are a restriction of what the founding generation would have characterized as our "natural liberty" to act as we wish unhindered by external constraint. It is certainly true that our normal freedoms are being restricted. But it is not paternalism for the government to take steps to curtail the spread of an infectious disease.
It is a basic tenet of classical liberalism that the government should not protect you from self-harm. "Paternalism" asserts that the government knows what is good for you and can take steps to make you do those things. It is paternalism for the government to tell you that you cannot imbibe noxious substances that will rot your brain. It is paternalism to tell you that you cannot indulge your hedonistic desires to the detriment of your productivity or your everlasting soul. It is paternalism to tell you that you cannot buy a Big Gulp. It is paternalism to tell you that you cannot get falling down drunk. It is paternalism for government officials to tell citizens that they may not develop and distribute a test to detect a new infectious disease. Your mom can tell you that you cannot run around the house with a pencil because you might poke your eye out. The government should not.
It is not paternalism to tell you that when you are falling down drunk you may not then get behind the wheel of a piece of heavy machinery and drive down public roads where you might crash into other innocent drivers or even into their stationary houses. It is not paternalism tell tell you that you may not indulge your hedonistic desires on my front lawn. It is not paternalism to tell you that you cannot walk around spreading an infectious disease to your unsuspecting fellow citizens.
Stopping the spread of infectious diseases is a long-standing core function of even very limited governments. From this country's very founding, the government was expected to inspect and detain those who might be arriving on our shores with infectious diseases. The government was expected to prevent the transportation and sale of goods and livestock that carried infectious diseases. The government was expected to quarantine individuals or even communities who were infected with diseases that could be spread to others. It took longer to resolve and has been more controversial, but once medical science demonstrated that vaccination could effectively prevent the spread of some diseases the government was expected to require that individuals be vaccinated so that they would not become a disease vector unless there were extraordinary risks to the individual from doing so. Even a minimal government was expected to restrict the liberty of individuals in such ways because doing so was necessary to prevent those individuals from wrongfully harming others in the community through their actions.
In the present context, it is reckless to engage in close social interactions with crowds of strangers. If the only consequence of that reckless behavior were that those engaging in it might become infected with a disease and suffer ill health effects, that would be one thing. You might underestimate your risk of infection or underestimate the baneful consequences of becoming ill, but those are risks for you to take and you can suffer the consequences of those risks.
But in the case of COVID-19, self-harm is not the only or even the primary consequence of such reckless behavior. The consequence of engaging in such reckless behavior is that you dramatically heighten the risk of spreading the disease to others and as a consequence of significantly harming or even killing them. The state has a proper interest in preventing you from engaging in behavior that will substantially increase the risks of others dying. Restricting your natural liberty to do what you will in order to protect others from being wrongfully harmed by you is not paternalism and is the appropriate job of a state guided by classical liberal principles.
None of that is to say that state officials are adopting the right policies in this particular case. There may be good reason to question whether the benefits of government policies are worth the costs. Perhaps the government is overreacting to an imagined threat (though I do not think so). Government officials have an obligation to fully explain the basis of their decisions to intrude into the lives of millions of Americans. Government officials have an obligation not to exceed their own specific legal authority when taking actions that they think might advance the public good. Government officials have an obligation to minimize their intrusion into public life and to lift restraints as soon as possible under the circumstances. Government officials should be held to account for bad decisionmaking that facilitated the spread of disease and hampered the development of an adequate response to keep it in check.
There is much to criticize the government for in its preparedness for and response to the current pandemic, but paternalism should not be among those criticisms.