Covidiots and Liberty:
What Should a Patriot do?
Facebook is full of idiots virtue signaling and the “liberty” people are some of the worst. Reading their posts makes you think the government has rounded up their friends and families and smoke is coming out of a chimney as they cremate what is pouring out of the gas chambers. Some claim that they are simply letting government know that someone is watching so they are as careful as possible with our liberties. Others are full on Covidiots. Most don't even understand what they are whining about.
When in doubt, it is best to start with the definition of the words being used.
Liberty:
1 : the quality or state of being free:
a : the power to do as one pleasesb : freedom from physical restraintc : freedom from arbitrary or despotic (see despot sense 1) controld : the positive enjoyment of various social, political, or economic rights and privilegese : the power of choice
2:
a : a right or immunity enjoyed by prescription or by grant : privilegeb : permission especially to go freely within specified limits was given the liberty of the house
3 : an action going beyond normal limits: such as
a : a breach of etiquette or propriety : familiarity took undue liberties with a strangerb : risk, chance took foolish liberties with his healthc : a violation of rules or a deviation from standard practice took liberties in the way he played the gamed : a distortion of fact The movie takes many liberties with the actual events.
4 :
a short authorized absence from naval duty usually for less than 48 hours
Now consider #1 to be useless, 1a and b to be useless unless one is wealthy and has no responsibilities, 1c make sense to a lot of us, 1d makes sense but during a pandemic who is sure this is even possible, 1e once again makes sense only if people have choices.
#2 isn't what we are talking about I think, our civil rights are not privileges or granted by anyone but God. 2b likewise is a privilege.
#3 well some of us have certainly taken liberties with others like Chris Kannady and Kevin McDugle, and the rest of the definitions under #3 are likewise not germane.
Leaving us 1c as the most likely definition, the freedom from arbitrary or despotic control.
But lets consider other words the Covidiots use claiming they are being oppressed.
Freedom:
1: the quality or state of being free: such as
a : the absence of necessity, coercion, or constraint in choice or actionb : liberation from slavery or restraint or from the power of another : independencec : the quality or state of being exempt or released usually from something onerous freedom from cared : unrestricted use gave him the freedom of their homee : ease, facility spoke the language with freedomf : the quality of being frank, open, or outspoken answered with freedomg : improper familiarityh : boldness of conception or execution
#a is worth considering, the absence of coercion or constraint. The rest of #1 are repetitive with Liberty's definitions. #2 is a political right granted by politicians I suppose.
We are left with two definitions, the freedom from arbitrary or despotic control, and the absence of coercion or constraint.
Now let's look at the latter first, the absence of coercion or constraint. Most of us realize by the time we are two years old that life without coercion or constraint is pretty rare for most of us and pretty dangerous if one could achieve it. I am coerced to get up every morning in order to earn a living. If I was wealthy I suppose I would be coerced by failing health to get up each morning and move around. If not my back and boredom would certainly coerce me into getting up. I unlock my car, coerced into locking it due to criminals and living in a city. I am coerced into inserting the key and starting the car by the car itself, it refuses to move until I do that. Tomorrow I will be coerced into filling the gas tank as my car refuses to run without gas, the tyrannical bastard.... I get to work and I am again forced to unlock my door, then coerced by my customers to do some work to complete their projects or ship the products they paid for. And I am constrained all day as well. There is no steak and lobster in the fridge at work. I am limited to 60 minutes of work in each hour and my tyrannical body forces me to stop after eight hours lest it punish me with pain and aches or simply refuse to be efficient.
Okay, we have to admit then that life is always going to contain coercion and constraint. That leaves us to worry about the arbitrary or despotic control of our lives.
Arbitrary limits to life would be when you can do something and others cannot in the same circumstances. Fairness I suppose, if Chris Kannady is ridiculed for picking his nose on the House floor we should also ridicule others. Are we being exposed to arbitrary limits with this lock down? I am sure some might claim that and I am sure that they might have a good case. Why allow a weed dispensary or liquor store to remain open if they close down the local arts and crafts store? Perhaps a person is addicted to needle point or bedazzling clothing. I think anytime we give the power to government to restrict our actions we can expect some bad decisions on their part which is why we shouldn't give them this power except under extreme circumstances. Someone is gonna bitch no matter what.
And that leaves despotic control. What the heck is a despot? A byzantine bishop or a middle ages military leader or prince, or someone that rules with absolute power and authority. And that last one is the one we are looking for.
The Covidiots might claim that Governor Stitt, Trump, or the Health Department officials might have this kind of power but they would be delusional, most of us will not agree with that. So far what has been asked of us has been reasonable and somewhat reasonable exemptions have been given. Companies can work on maintenance or cleaning as long as they follow the social distancing guidelines. They can even sell stuff as long as they keep people out of the stores of non essential businesses, call ahead and order what you need, they will meet you at the curb.
If you owned a restaurant, well you either learn to do curbside service with a skeleton crew or shut the place down for a month. You get to make that decision and the government has put in place plans to borrow money to crank back up or to pay your bills till we can set people free again. Your employees can go on unemployment. Your service contracts for things like advertising, trash pick up, or even rent ought to have a force majeure clause, an allowance for an overwhelming reason why you cannot fulfill your contract. No doubt this isn't a new issue at law and the courts will know how to settle things. But you did have a choice in all of this, right?
And how is that? How did the restaurant have a choice in all of this? Businesses are known for being recession proof or recession prone to failure. Boils down to if people can do without you in bad times. If you are Kevin McDugle renting our your services as a love slave then you ought to know that during hard times the demand for your services might dry up. If you are selling food to restaurants, business will slow down in slow times and you might not sell anything during a quarantine unless you market to individuals or grocery stores so you better have a plan ready for bad times or you are a piss poor business owner.
The thing is that most essentials of life are also highly competitive businesses, low margins in grocery stores for sure. Restaurants can make high margins but they are risky, as are bars. You get to pick as an employee or business owner, do you want security and low pay or high risk and high possible rewards?
So what do these Covidiots want? The restrictions we are asked to follow are not arbitrary or despotic. We elected representatives that wrote the laws that allow these restrictions so the people had a say in things. Some states shut down churches, a wise move in my opinion, but the governor's backed down when enough people pushed back. Not sure if that was wise on their part but it does show that we are not ruled by despots.
About all that is left to consider is that the Covidiots want anarchy.
anarchy:
a: absence of governmentb : a state of lawlessness or political disorder due to the absence of governmental authority the city's descent into anarchyc : a utopian society of individuals who enjoy complete freedom without government
2
a : absence or denial of any authority or established order anarchy prevailed in the ghettob : absence of order : disorder
In a perfect world with perfect and rational people I would be all for anarchy. But that is a pipe dream, human nature will not allow such a thing. We had a run on toilet paper for God's sake.
One of the best writers on freedom in the 70's was James M. Buchanan. He wrote that men want freedom from constraints while at the same time recognizing the need for order. That is a paradox that becomes more troublesome the more the state provides for the citizens. An example he gave was the Law itself, providing a set of rules we should all live under.
Once you have laws you hope that peer pressure, public opinion, and voluntary compliance provides enough enforcement. Yet we see that juries and even the public opinion sometimes blanches at the task of enforcing the law to punish the criminals. This unwillingness, like the current popularity for soft on crime agendas, leads to the destruction of the order we supposedly cherish. Democratic mob rule by citizens will always lead to the destruction of order. Buchanan put it best when he wrote:
“Ordered anarchy” remains the objective, but “ordered” by whom? Neither the state nor the savage is noble, and this reality must be squarely faced.”
Another great writer on freedom was John Stuart Mill, a nineteenth century philosopher and economist. He wrote this on the sole reason for using power over others:
“That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant ... Over himself, over his body and mind, the individual is sovereign.”
Now Mill was an advocate of utilitarianism, basically that which produces the best outcome for the good of others or self and that the consequences of an act are the sole judge of it being morally right or wrong. This allows exceptions to that simple rule, for example for children or “barbarians”. A simple way to put it is that those incapable of not producing harm to themselves are not ready for self determination or freedom.
Mill ordered our basic liberties in order of importance, the freedom of thought and emotion, the freedom to purse tastes that do not harm others even if they are thought to be immoral, and the freedom of assembly as long as all are of age, no force is used, and no harm is done to others.
Let;s face it Mills was a libertarian. Yet even Mill said that freedoms could be pushed aside in certain situations, there is no cause for rescission of rights in a civilized society. Mill completely rejected the idea that liberty was for the sole purpose of selfish indifference.
Consider one of the examples that Mill used, what to do when someone sees a person about to cross a damaged bridge without being aware of the risk. If a police officer sees the unaware person about to take a risk he is unaware of then the officer would be correct in stopping the person from crossing and using force if needed. If the means are available, it is right to stop the unaware person.
I think that most of us would thank the officer once we were aware of what we had avoided thanks to a temporary loss of our freedom. Then there will be those like one person who told me this week they would do what they want when they wanted and for those souls the average person enjoys seeing them earn the karma.
But is that the right thing to do in this case, a communicable disease that is doubling every four to five days, with a long incubation period that allows spreading when the infected show no symptoms? A disease with no known perfect cure and no vaccine. If the Covidiot was wanting to cross a bridge into a country full of the virus I'd say let them go if they refused to be warned. But he cannot be allowed to come back and spread the disease.
But aside from ethics and responsibilities, what has our court system said about issues like quarantine and pandemics? SCOTUS decisions have pretty much left the decisions in state government's hands as far as quarantining people but there are overlapping federal statutes. And we have to break out those that actually have the virus from those that are merely exposed to a virus. Isolation is for those that are ill or carriers of the virus. Quarantine is for those known to be exposed to a contagious disease but not yet showing symptoms or testing positive.
We have faced this before but it wasn't a pandemic, the ebola threat in 2014, and Congressional Research Service said the power to quarantine is reserved to the states under the 10th Amendment. In 1824 the Gibbons v. Ogden case decided who was responsible for regulating such things within the state and that included specifically police powers including quarantine and isolation of people for just reasons.
The federal government also has the right and responsibility to deal with containing communicable diseases between states and from foreign countries and in general the feds put that power into the hands of the CDC who answers to the U.S. Secretary of Health and Human Services. There are also seldome used statutes that allowed the feds to quarantine and isolate after WWI in the Spanish Flu pandemic and George W. Bush issued an executive order that is still in place that covers isolation and quarantine.
So that is the rights of the fed and the states, how about your rights? You have the 5th and 14th Amendments, Due Process and Equal Protection under the law. What SCOTUS has said on that is that any health regulations must not be arbitrary, oppressive, or unreasonable. Sometimes SCOTUS has ruled that a local or state government hasn't met those standards.
One such case was Wong Wai v. Williamson, decided at the California Supreme Court that ruled arbitrary laws aimed at Chinese residents while trying to suppress the bubonic plague were unconstitutional due to unequal application with white residents and the city not proving that the Chinese were responsible for carrying the disease. Later decisions from higher courts laid out the requirement that isolated and quarantined individuals be told why they are being held, notifying them of their right to counsel, and other constitutional rights they might have. You basically have a right to a medical review and to ask a federal court to review why you are being held.
So there are established and tested rights of state and local government to isolate and quarantine people. The problem is how to enforce those laws. We have already seen stories of people being quarantined by order of their local or state health department and violations of that order but the Health officials do not have the power of arrest in some states. Oklahoma does have laws, Section 63-1-504 makes it a misdemeanor to violate a quarantine order by any health officials. Then Section 63-1-502 gives the State Health Department the ability to formulate regulations to help stop communicable diseases including closing of stores and regulating public meetings or gatherings in an epidemic situation. That includes regulating vehicles that might spread the disease and making any rules it can justify as needed to control an epidemic.
Generally the most medically sound decision wins over the least restrictive or least expensive to the economy. If a plaintiff can prove that another medical decision that is less restrictive would provide the same benefits to the state then they might prevail. And of course these measures always transfer the costs of the action to others, that isn't disputed and the judges realize it is inevitable. When the state tells you to stay home, your pocket book suffers as does your employer or business. Tough luck basically if the plaintiff cannot prove the medical reasoning was flawed.
Prior to 1900 the quarantine or vaccination cases focused on giving the power to decide to the state but gradually the courts saw advances in medicine and started focusing on the medically trained officials as most able to understand the science and make the best decision. At first the courts took notice but left the power with the elected officials rather than the health officials.
By 1913 though the power shifted to the medical experts and science, we started requiring the pasteurization of milk and while the court agreed that science was fallible and might change, it was the best theories at the time of the decisions that ought to decide if a medical decision was proper.
By 1922 Barmore v. Robertson pushed the ball a few yards down the line toward relying upon science. A boarding home owner was quarantined and sued to be released on the basis that neither her husband nor any of her guests had come down with the typhoid she carried. Laboratory proof of her infection won out over proof of spreading the disease.
Then in 1973 the New York Association for Retarded Children v. Carey reconsidered the rights of those infected. In this case fifty retarded kids carrying Hepatitis B were refused entry to a public school. They sued and won and were required to be enrolled. The board of education then segregated the kids and were sued again because other less restrictive methods existed to contain the spread of the virus. They compounded the problem by not testing the normal children to find out if any were carrying the virus. At this point, the power of the state was rejected in favor of the power of the medical advice for less restrictive methods of containing the spread of the virus.
The next major case was in 1982, Grube v. South Bethlehem Area School District. A kid with one kidney wanted to play foot ball but a couple of doctors decided it was too dangerous for a child with only one kidney. A sports medicine expert was consulted and thought otherwise,a set of custom protective pads and the fact that no one had ever lost kidney function from playing football won out over the two doctor's opinions. They had no identifiable facts but under an abundance of caution they decided that playing with one kidney was unsafe.
At this point the courts have crystallized police powers and their limits. Rational rules and the least restrictive means are determined by medical opinions and facts, the state now needs to justify any quarantine measures or any police power actions to accomplish public health.
The State of Oklahoma can in fact constitutionally infringe on an individual's rights as long as a medical risk assessment has defined the perceived threat and how widespread that threat might be both in physical terms of territory and in just how dangerous the threat is to the public health. They then are required to choose the least restrictive medically appropriate means of mitigating the risk. The doctors and specifically the epidemiology experts in charge must not consider civil rights or public pressure but must focus strictly on medical facts and current known best practices. To do otherwise turns our Republic into a dangerous Democracy ruled by public pressure and mobs.
