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The Moral Need for Public Conversation about Rights in a Pandemic World

photograph of protester holding sign reading: "Freedom from Tyranny Don't Tread on Me" in front of State building

The COVID-19 pandemic has created several problems that pit sacrifices for the collective good against individual resistance on the basis of upholding some perceived “right.” For example, should people be expected to wear masks? Are people obligated to follow social distancing guidelines? Is a lockdown justified? Are we obligated to get vaccinated once it is possible? But, what do we mean by “rights” in these cases? And, how has an understanding of political philosophy (or lack thereof) helped or harmed social attempts to manage these problems?

Resistance to social-distancing and mask-wearing is controversial. Those who have been most vocal in their resistance have acknowledged the pushback they get. It is no surprise why either: failure to wear masks, failure to socially distance, failure to isolate, and failure to eventually get vaccinated make the problem of the pandemic worse for everyone else and will likely prolong its effects. Consider the issue of following social-distancing guidelines. A party of about 25 people this month led to over 350 people having to quarantine after the party became a super-spreader event. The less effort that people put into following public health recommendations, the easier it becomes for the virus to spread and the worse the rest of us are for it. Now polling suggests that only 58% of Americans plan to get vaccinated, and if there is great resistance to vaccination then the problem will only be prolonged further.

There are a myriad of possible reasons for not following these guidelines (and in some cases laws), but one that is often cited is that the guidelines are a violation of individual freedoms or rights. Several of the protests, rallies, and calls for “liberation” from lockdowns and mask mandates have justified their actions on the basis that such measures violate fundamental freedoms and rights. For example, MLB player Aubrey Huff declared in June that requiring people to wear a mask is “unconstitutional to enforce,” and as The Washington Post reports, “many say that they have a ‘constitutional right’ not to wear masks and mask mandates are forms of totalitarian rule.” In Brazil, President Jair Bolsonaro declared that he would refuse to get vaccinated, citing his rights. Even in Canada the provincial government of Alberta, currently one of the worst hotspots in the country, has resisted mandates on the basis that it could infringe on constitutional rights. Premier Kenny recently pointed to Canada’s Charter of Rights and Freedoms as a reason they are avoiding greater restrictions.

Of course, the question really is whether people do have a right to not wear a mask or do have a right to violate public health regulations. As many Canadian legal experts have pointed out, Kenny’s reasoning is faulty. Canadian rights and freedoms are inherently subject to “reasonable limits” by the constitution as can be justified in a “free and democratic society,” but American constitutional rights are slightly more absolute in character. Still, where is the protected right to not wear a mask or to violate public health standards? Many would argue that they are covered by the first amendment, but short of a court ruling on this matter, it is hard to argue that one has that right at all. If I were a legal positivist, for example, I might suggest that the only “rights” that one has are ones that are determined by court rulings. Therefore, in keeping with the positivist slogan that ‘law is law,’ until courts rule on the constitutionality of something like a mask mandate, one cannot claim they have a right to not wear one. On the other hand, one may take a more natural law view and proclaim that such rights are not for courts to say we have them, they are inherent and inalienable.

Regardless of whatever right is actually protected by whatever court, people will continue to resist if they ‘feel’ it within whatever perceived ‘folk’ conception of rights they have. Thus, this is not merely a public health issue or a legal issue, but a philosophical issue in the truest sense. What justification do people have for proclaiming that they have a certain right? For example, if someone who rejects the mandated wearing of masks because it violates their rights, do they perceive these rights as inherent or conventional? Also, how are generally understood constitutional rights translated into perceived rights to take certain actions in specific situations like not wearing a mask? A common aphorism about rights holds that one’s right to wave one’s fist ends at the tip of another person’s nose may be used to justify resistance to health measures. But, what about when the concern isn’t a fist touching your nose, but the particles you expel into the air? Whose nose takes priority, everyone else in public or the people who refuse to wear a mask?

Through all of the problems of masks and public health mandates, the central question is what should be the relationship between society and the individual and to what extent does the individual have to make a sacrifice? These kinds of questions will only become more significant over time. Many governments may need to raise taxes to pay for pandemic-related spending. The public may be expected to practice further sacrifice and restraint in the future in the face of climate change. If so, then for the sake of the public democratic conversation alone, it would not hurt if people were more familiar with the philosophical justifications they think they have for resisting efforts to effect the common good. Perhaps civics education and the practice of being a good citizen should include a background in political philosophy?

One really good reason to consider this is that traditional ‘folk’ understandings of rights are often based on historical notions that do not fit the modern highly-connected world. Despite what many may think, even philosophers like Locke, who was influential in formulating such rights, believed that rights do not eliminate obligations to others.  The action of one individual can have such far reaching consequences (such as one house party leading to hundreds of infections and possible deaths) in a way that was not possible when the concept of rights in a liberal democracy were formulated. A more public conversation about how we collectively ought to understand our rights and obligations in the 21st century could alleviate political confusion and delayed action. Another good reason is it would make it more obvious when people assert some right arbitrarily. One does not get to claim a right merely because they feel they have one, nor can they legitimately claim “I exempt myself” without reason.

On the other hand, traditional political philosophy can also confuse and obstruct the kinds of interactions that take place between an individual and society. Perhaps the problem is retreating behind political philosophies which have become political dogmas. Instead of thinking about the individual and the state as ontologically separate things which are opposed, we may instead consider the scientific reasons why the public is so skeptical and so unwilling to work for the common good. If we treat society and individuality as a process of securing capability and responsibility, then the moral lesson might be to not make this a rights issue at all. Perhaps the problem we face is how to secure public cohesion so that more people are willing to do their part even if they have a right not to.

Education and a Free Society: A Libertarian Perspective (Part One)

If liberty is so fundamentally important to libertarians, then they should readily support means of achieving and maintaining it. Taking it as a given that libertarians care about liberty as a primary sociopolitical value and aren’t going to change their minds about that, should they include public education amongst these means?

Dr. Cullison has argued that (1) an educated populace constitutes a public good of the kind libertarians already think governments may permissibly encourage through taxation and spending; and (2) that an educated populace actually would (or could, given the right education) defend liberty in the way that libertarians would like. The first claim is an appeal to logical consistency, and the second is an empirical claim.

To the first point: just because a libertarian (or a “minarchist” – supporter of the small state) acknowledges the collective action problems involved in providing public goods doesn’t mean that every potential public good then ought to be provided by the government. There are always complicated tradeoffs involved with policy decisions. Perhaps when we look at public education, we find that a large majority of the benefits (broadly construed) accrue to individuals, with positive spillover effects socially (in terms of GDP or something). There would then be no inconsistency problem to decide that treating education as a public good didn’t make sense, all things considered.

But, more importantly, it’s unclear that increasing amounts of education would serve the libertarian goal, as a matter of fact. The types of courses that would instill a respect for freedom in students – history, economics, political science – are conspicuously absent from most curricula, even at the college level, and taught superficially to poorly when offered. The political-bureaucratic apparatus around middle and high school education ensures that this mediocre status quo remains enshrined in perpetuity.

And funding higher education is relevantly different than funding basic K-12 education, as a public goods matter. Many of the most educated people in this country argue for free college for all, and undoubtedly dealing with one’s student loans can be incredibly stressful. But the returns of a college degree reliably exceed its costs, and they are paid out to the degree-holder in terms of increased wages. A large part of why college is so expensive is because campus life has been getting nicer, and people take plenty of fluffy but fun electives, so college is also a consumption good for its consumer (the student).

Why should taxpayers fund a long and only semi-educational vacation for students who will themselves reap most (if not all) of the financial gains later? With this hefty carrot already inherently on the table, society is unlikely to systemically under-invest in college in a way that would justify wide-scale government intervention (which can itself readily lead to over- or at least mal-investment).

Public goods considerations are supposed to keep us from overshooting on paring down the state so far that we risk lapsing back into dysfunctional society of another kind. But it’s not clear that capping public spending on education (or redistributing it more equitably, such as from rich school districts to poor) approaches that line.

As a moderate libertarian, I do find the more compelling argument for public education is indeed the individualist one. People ought not to be educated at public expense for the reason that they can (hopefully) become little cogs in the liberty-supporting political machine. On the contrary, education with a political purpose in mind can go so far as turning into manufactured consent – a state producing the consent it needs for legitimacy by its own processes (like public education).The observations that political stances are largely heritable and that voters are irrational cast further doubt on any plans to promote liberty through the education and subsequent political participation of individuals.

It might just be the other way around: broad liberties are themselves a foundational public good that generate surplus social value, more so than education per se, and should be protected by constitution and judiciary whenever possible. Widely-available education is a complicated investment, consumption, and signaling activity, and it’s the output of a free society even more than an input to it. In the next post, I will develop this argument in more detail.