Freedom, Plague-Spreaders, and Holmes's Bad Man
by Neil H. Buchanan
The long-overdue backlash against people who elevate their confused notions of personal liberty above the need to fight a catastrophic pandemic continues to intensify, with good reason. My two most recent columns (here and here) explored the maddening recklessness now personified by the governors of Florida and Texas.
Especially in the latter column, I argued that this is not in fact a matter of balancing individual freedom against social harms, because the concepts of force, choice, and all of the other buzzwords that are being endlessly repeated by the antisocial right are deeply incoherent.
There was a very good exchange on the comments board for that second column, with an especially important point offered by Professor Dorf, suggesting that I might have overstated my claim in a way that could seem to endorse the antisocial nihilism of Oliver Wendell Holmes's "bad man." I will return to that important discussion later in this column, but I should begin with a disclosure of self-interest.
This is the beginning of the Fall semester for my third year as a professor at the University of Florida, and I was supposed to be returning there this weekend after having spent several months out of town over the summer. However, I have decided not to return as planned, not so much because I am worried about COVID directly -- being fully vaccinated does not make me immortal, but it radically changes my odds for the better -- but because I do not want to be in a place where I might need to go to the hospital for some other reason.
What might happen? I could be hit by a car while riding my bike (or walking, or driving). Although I am apparently not at risk of a cardiac event, something like that could also strike unexpectedly. In any case, reports from my new home state indicate that emergency rooms have become so overwhelmed that non-COVID cases cannot be treated as emergencies. Not only do I worry about my own health, but I feel that it would be irresponsible to place myself into that situation when I do not need to be there. I should not unnecessarily risk forcing Florida's health care system to deal with me while chaos reigns.
As a less important matter, I should point that I will now be spending money in Maryland rather than Florida for an unspecified additional period of time. When we add to that small amount of money the much larger sums that would-have-been tourists are not spending in Florida as they now avoid what used to be known as the Sunshine State (but that now might as well be known as the Petri Dish State), we see a direct refutation of the Trump/Republican idea that we can either deal with COVID or save the economy. It is, as it always was, not either/or but both/and.
What I referred to above as "a disclosure of self-interest," then, is actually simply a statement that I have a somewhat more direct and salient stake in the current goings-on in Florida than most people do. Everyone has a stake in this, however, and everyone's lives are being altered by the plague-spreaders' malice. And that is before we even consider the likelihood of still other variants being incubated in this increasingly crazy situation.
I readily admit that nothing that I have written above constitutes a deep insight or even a mildly novel observation. Some people have taken it upon themselves to harm the rest of us, as they have been doing ever since Donald Trump decided to politicize every aspect of COVID. We do, however, need to continue to remind ourselves just how much damage this is inflicting on the rest of us. I offered some details about my own situation not because they are dire but precisely because they are so pedestrian; but the plural of pedestrian is society. Even those of us who are not sickened by this virus are now regretfully making perfectly sensible decisions that aggregate into an unnecessary escalation of harm.
As I noted above, the closest I can come to claiming some unique insight is my argument in Wednesday's column about the incoherence of self-styled libertarians' notions of choice, force, liberty, coercion, and so on. Even there, however, I simply applied the familiar (to legal scholars, at least) idea that mandates and requirements are in fact not physical invasions but rather changes in the consequences of making different choices.
For example, when someone says that the government "requires" us to have automobile insurance, there are no jack-booted thugs pounding on people's doors, forcing them to sign contracts with GEICO. A person can make the "free" choice to drive without insurance -- or even to drive without a state-issued driver's license -- if that sense of freedom is worth so much to her that she finds the penalties for doing so comparatively less onerous. In the business world, "the cost of doing business" is a colloquial way of referring to a situation in which, say, a polluter pays fines because those are cheaper than cleaning up a waste site.
What is especially remarkable about the current fury on the Trump/Republican right is that the new choices that are being imposed and discussed are so minor. Many vaccine "mandates," for example, are in fact a choice between receiving a vaccine or instead being tested for COVID frequently. Even if the person were required to pay for the tests, that would simply be a matter of saying, "You can be vaccinated for free, or you can be tested daily and pay for the tests yourself." That might feel to some people like being forced, but it is in principle no different from being told that the price of one's favorite cup of coffee just went up.
Or consider the new set of choices that one university recently announced, as part of its contact tracing protocols:
If ... you [are identified] as a contact and you are not vaccinated, you will be “withheld” from campus for at least ten days even if you are asymptomatic. During this time, you will have access to class recordings, but you will not be able to attend class or join remotely. If ... you [are] a contact and you are vaccinated, you generally will be permitted to attend class and remain on campus unless you have symptoms associated with Covid-19.
That is not a "vaccine mandate," but it certainly changes the calculus for those students who have not yet been vaccinated. Becoming a traced contact of a COVID-positive classmate is not one's personal choice, but there are now less appealing options for those who are unvaccinated than for those who have acted responsibly. The stakes might not seem high, but for students who wish to be part of the campus community (and who believe, correctly, that attending class in person improves one's grades), the university is imposing a cost on the choice not to vaccinate.
I promise that I will turn to Professor Dorf's concern soon, but I do want to add a further wrinkle to the discussion about what counts as unacceptable coercion. On one of MSNBC's shows last night, the host interviewed law professor Ilya Somin about various COVID-related mandates. Somin was (accurately) introduced as an academic expert on libertarianism, and it was clear that he was booked on the show because he believes that vaccine requirements are not anti-libertarian.
Somin's argument was that getting a vaccine is a minor imposition ("You get the jab, but then you can move on with your life -- at worst, in a day or two."), weighed against the large benefit to the individual and especially to others. Straight cost-benefit analysis, in other words. Somin even went on to say that immigration restrictions (something that my governor strongly supports, in part because he bizarrely blames Florida's current COVID surge on border crossings from Mexico) are a huge imposition on freedom and are thus anti-libertarian.
As welcome as it was to hear those arguments, I shared the host's frustration when Somin then went on to condemn mask mandates, arguing that such requirements "are a much more severe imposition on liberty, in that it's not just a jab and then you go on with your life, it's potentially any time you go inside in an indoor public space, you've got this pretty severe restriction, which is very painful and annoying for many people, particularly those who wear glasses or have sensitive faces or have other conditions ...." He went on to argue (incorrectly) that masks are inadequately effective, concluding therefore that the costs are higher and the benefits are lower than vaccine mandates.
To his credit, Somin did make clear that there is no single libertarian view and that he was speaking only for himself. Even so, what was striking was how casually he asserted that "the jab" is no big deal but that masks are "very painful and annoying." I point this out not so much because I disagree with him about the relative severity of vaccinations versus masks (although I do) but because it is clear that most other people disagree with him. Indeed, I had not previously heard anyone claim that masks are more of a personal violation than getting a shot.
But if a libertarian argument hinges so completely on such wildly divergent views of what counts as an unacceptable bodily imposition, it certainly makes one question how useful this approach can be. Two self-identified libertarians can casually assert that X is alternatively hugely intrusive or no big deal, leading to opposite conclusions. That sounds less like a neutral decision-making approach than a way to justify anything at all.
Even if I am completely wrong about that, however, we need to return to the more fundamental point that what we call impositions are in fact merely changes in consequences. Even if Somin is right that masks are painful and annoying, a person who does not want to wear a mask (or to have his child wear a mask in school) is free to face the consequences of disobeying the rules or to find (potentially annoying or expensive) alternatives.
All of which finally brings us to the concern that Professor Dorf articulated on Wednesday's comment board:
I worry about the wholesale adoption of what Holmes called the "bad man" perspective. The bad man asks only what will happen if he disobeys the law. He does not treat the existence of a legal obligation--standing alone and apart from the remedies--as creating an extra-legal or moral obligation. I don't share that view, except in limited domains, such as contracts, where the legal obligation itself really is "perform or breach and pay damages." In criminal law, I think it would be monstrous to say that the law doesn't forbid murder but merely says people have a choice either not to murder or to murder and go to prison or (in some jurisdictions) be executed. So although it's a matter of degree, I would want to say that some legal obligations are obligations to engage in or refrain from some primary conduct, treating the remedial consequences as a separate matter.
Initially, my reaction to this comment was that I should simply emphasize my agreement with Professor Dorf's concerns, echoing his argument that there need to be limits to the "it's all just a matter of changing the costs of noncompliance" framework. I certainly do agree that "it would be monstrous
to say that the law doesn't forbid murder," for example. The best way to view legal obligations, in fact, is not to think of them as merely the costs of doing business. Even in the contracts area, scholars like Stewart Macaulay and Ian Macneil have argued persuasively that contracts are not merely about buying one's way out of obligations but must be honored in order to preserve social trust and relationships.
But if I agree with all of that, why would I have gone on at such length about legal mandates and requirements being merely inputs into a person's calculation of whether to comply? The answer is that I am, in fact, talking about Holmes's bad men. That is, the people who are making those pseudo-libertarian trolling arguments about personal freedom and government coercion have revealed that they are exactly the kind of people who will not refrain from some primary conduct -- because they are antisocial.
My analysis, then, simply says: "Even though you've self-identified as a Bad Man, your argument about liberty is completely incoherent. You live in a world in which you try to get away with whatever you can, and the rest of us are busily trying to make it more likely that you will make certain choices rather than others. From your perspective, it's all a game; and we're changing the rules of the game. You can still play, but we hope to make you want to change your decisions. We can't stop you from being amoral, but we can shape how your game plays out for the rest of society."
This is, in fact, an especially pointed example of an idea that I first put in words almost ten years ago. It is frequently tempting to engage in "arguendo reasoning," that is, to say that one can accept bad premises and still defeat one's opponents' arguments. "Even if deficits were always bad, the debt ceiling does nothing to reduce them." "Even if abortion is the killing of a 'child,' it would still be bad to charge people with murder for getting abortions." "Even if the Second Amendment embodies an individual right to own firearms, that right does not extend to assault weapons."
In each of those cases, it is easy to win the argument, even if the false premise were true. Even so, spending a lot of time on someone else's playing field has consequences, one of which is repeating or taking for granted the highly objectionable presumptions from which one's opponents proceed. Here, I did not even say the "even if" part out loud. I simply dove in and started arguing on Bad Men's own terms.
So this is an important point at which to be clear: Holmes's Bad Men are bad. That their logic is incoherent, even after accepting their badness arguendo, should not cause us to forget that they are simply being bad men. Children, as well as adults, are literally dying in Florida and elsewhere due to the cynical political posturing of bad men. Businesses are again failing because of bad men. Spreading a plague, when there is a quite straightforward way to end that plague, makes a person a bad man. And we should not forget it.