People have a right to kill themselves. They also have a right to engage in risky behavior—like rock climbing without a rope—and it is inappropriate for the state to prohibit them from engaging in their preferred, high-risk activity. On the other hand, people do not have a right to endanger others, and the state may restrain them to the extent their behavior puts innocent bystanders in peril. Yet in the exercise of that power, the state is constrained by what is reasonable; it may not impose restrictions that do not bear a rational relationship to the objective sought. These three principles—a person has a right to take risks, the state has the power to protect innocents from another’s risk-taking, and the use of that power cannot exceed the bounds of reason—help organize our thoughts on the protests that have erupted over the COVID-19 lockdowns.
The first question we might ask is whether people can legitimately refuse to wear a mask or engage in social distancing. At first blush, the answer is obviously yes. Since they have a right to engage in risky behavior, they should be able to do as they please. If they want to take the risk of getting ill, that is their choice.
But this answer immediately runs into the second principle: the state may restrain their behavior to the extent it imperils innocent bystanders. The state has no legitimate interest in whether X kills himself, but it does have an interest in whether X takes innocent Y with him. Thus, when the state imposes a restriction on X—ordering him to wear a mask or close his business or maintain his distance from others—it is not because it cares one whit about X; it doesn’t and shouldn’t. It is because the state cares about Y, who did not join in X’s choice.
So X has a right to forego a mask if he can effectively promise that his choice will not endanger Y. In fact, that is already the rule. No one has to wear a mask in their own home, for instance. I am a long-distance cyclist and do not wear a mask while I ride, but I put one on before I go into a store at the midpoint of my ride. Can X promise—effectively—that his choice will not endanger others? Can X promise—effectively—that if he gets sick, he will not risk spreading the virus to others? Note that to make this promise, X also has to agree to forego medical care, since going to the hospital obviously imperils medical providers, other patients, etc. In addition, when X uses medical resources, he takes them from others who might benefit from them—the ventilator, hospital bed, etc. So unless X can effectively promise that he will suffer his illness alone, with no risk to others, the state has a right to restrain his behavior.
We can imagine a situation that might get us partway there. X could sign a public waiver of his right to medical treatment in the event he became ill. He could wear a bracelet with the letters, “IMMC.” I MADE MY CHOICE. Anyone wearing the bracelet would be turned away from every hospital. Of course, if X got sick, he could always buy private medical care, and those who attended to him would be making their own choice, but he could not inflict his choice on others who did not willingly assume his risk. He simply has no right to do that. Would X be willing to sign such a waiver and wear his IMMC bracelet? If not, that ends the matter.
But even if he were willing, and even if such a waiver were workable, it wouldn’t solve the problem entirely. That is because X’s behavior puts innocents at risk, even if X does not need medical attention. X may have the virus but be asymptomatic. If he refuses to wear a mask, he increases the risk that Y (say, perhaps, an innocent shop owner) becomes sick. In that situation, X still inflicts his choice on innocent Y. So it is not enough for X to promise that he will forego medical attention. He also has to make the effective promise that he will not infect others. Since there is no way for him to do that (at least, not if he intends to have contact with others, which is the only time the rule applies), the state’s power to protect innocents has to prevail over his right to endanger himself.
But that is not the end of the story, and this is where it gets interesting. The state’s power is bound by the rule of reason. The state may not impose irrational or arbitrary restrictions. It may not say, for instance, that everyone must wear a mask except Catholics. It may not say that black business owners must close their businesses, but not Latino business owners. Of course, no state has made such a rule, and that is how we are accustomed to think of irrationality. But the state has taken other steps that, at a certain point, also become irrational. It has said that at least some fraction of people may not maintain their livelihood for the indefinite future.
The state has a right to impose this restriction, but only to the extent it is reasonable. Can the state force a person into bankruptcy? Can it force a person to lose their home and life savings? Is it reasonable for the state to ask a person to choose between their physical and financial health? I think not. If I’m right, then the state’s power to restrain a person’s behavior must be accompanied by a commitment to sustain his livelihood for the duration. I don’t think the state has to replace lost earnings dollar for dollar, but it obviously has to prevent penury. If the state cannot or will not make this commitment, it is disqualified from exercising its admitted power to restrain risky behavior—at least, it is disqualified once its financial support expires.
Unfortunately, this is where we’re at. We read every day of people who are forced to make this morally bankrupt choice. No state has a right to impose that on its citizenry. Because the state will not live up to its end of the social contract, it cannot legitimately impose its will on the people.
* * *
That’s how I have worked this out. Others may take a different view. There are, for instance, complications to my reasoning that I have omitted. Some may say, for instance, that my analysis only authorizes protest by those who are forced into this obscene choice, and that people with plenty of money would therefore have no right to complain. I disagree; obviously people can protest on another’s behalf, and can protest against the general misuse of the state’s power, even if it does not affect them directly.
Others may complain that the protests are partisan displays, and are not in fact motivated by a fear of official abuse. Regardless of whether this is true, it is irrelevant. If a protest is objectively legitimate, subjective motivations—even if we could discern them—cannot make it otherwise.
Finally, some might argue the state has a right to restrain a person’s behavior for his own good—that is, even if it creates no risk to others. That is a philosophical proposition that I simply reject. In my view, risky—even life threatening—behavior that poses no direct or indirect risk to others is beyond the state’s power to regulate. The state only has an interest in protecting others who do not assume the risk.
These complications, however, are beside the point. As it stands, the state is unwilling to uphold its end of the bargain. That failure renders the protests morally legitimate.
