It’s always a mistake to accept their premises.
Last week, the Centers for Disease Control did an about-face, announcing that the fully vaccinated among us may resume normal activities. The news came more than a year after California initiated the first lockdown on March 19, 2020.
The CDC’s new posture comes with some narrow exceptions. If you’re traveling on a plane or find yourself in a homeless shelter or in a medical or correctional facility, you still need to wear a mask; and the CDC made sure to clarify, apparently out of great deference for federalism and Hayekian spontaneous order, that its guidance does not predominate over the requirements of federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.
Before the CDC updated its pandemic guidance, this was exactly the position espoused by libertarian law professor Ilya Somin of George Mason University’s Antonin Scalia School of Law. Writing from his regular perch at the legal blog The Volokh Conspiracy, Somin’s argument is summarized nicely in the subheading of his piece, “Free the Vaccinated from COVID Restrictions”: “Doing so will protect constitutional rights, reduce vaccine hesitancy, and increase liberty—all at once.”
The CDC’s shift undoubtedly is a welcome development, all things considered. But people like Somin could not be more misguided in supporting it as a matter of best practice. In doing so, they ratify a pernicious principle that has the potential to destroy our long-term freedom. Instead of reasoning from first principles, Somin works from within a techno-scientific, experts-know-best framework that, unsurprisingly, constrains his thinking and directs him to validate the public health bureaucracy’s authority and priorities. One need only examine what accepting the totality of the CDC’s guidance would truly mean to see the short-sightedness of Somin’s position.
That the CDC, or any other institution, would presume to strip us of our God-given natural liberty to buy groceries or see a play or play with our children in a park, all in the name of some dubious goal of “public health,” and then purport to “return” our rights—but only if we jump through a vaccine-related hoop—is a grievous affront to the salutary legal revolution brought on by the birth of America that Jaffa identified. We are being ordered to accept the submerged premise of the CDC’s new position, namely, that we are free to do only what the government explicitly permits us to do. Sadly, a great many Americans are only too willing to comply.
It is deeply shameful that we let a virus with a roughly 1.8 percent death rate upend completely our society’s habits, customs, practices, mores, and ways of thinking about the interaction of law and liberty and the legitimate domain and reach of each. (Recall that SARS had a 14-15 percent death rate, and we did not feel compelled to shut down the country for over a year.)
Actually, it wasn’t a virus that did it. The Left was allowed to “upend our thinking about liberty” many decades ago, transitioning (ahem) far too many of us from stout, indendent citizens to simpering dependents content to suckle at Mommy Government’s flabby teat forever. After that “fundamental transformation” was accomplished, pulling off the Covid coup de grace was simplicity itself, practically a fait accompli.