Do
the Needs of the Many Outweigh the Needs of the Few?
A philosophical look at our natural rights in the Covid-19 crisis.
From
a wet market in China, through Asia and Europe, and deep into the American Heart
Land, Covid-19 (also known as Coronavirus) has swept across the world with
incredible efficiency, killing over 13,000 just in the United States alone[1]. Despite a President who would rather golf
than address this horrible disease, governors in 42 states[2]
have instructed residents to stay at home in an effort to flatten the curve of
infection, hopeful that with more residents staying at home, the hospitals will
not be overwhelmed with patients needing life-saving treatment. Most citizens have been compliant. Small, “non-essential” businesses have been
closed to the public, with many restaurants now only offering pick-up or
delivery. Employers have transferred
their operations from the office to the employee’s home. Schools have gone online. Grocery stores now offer contact-less
shopping. We are nowhere near the amount
of compliance and testing we need to truly flatten the curve, as has been done
in South Korea, and people in the United States are getting restless under a
seemingly never-ending house arrest. In April, there were several rallies held
in various parts of the country to protest the current stay-at-home orders[3],
saying that the new orders impede their right to move about freely, a freedom so
completely standard to our founding fathers that it was never included into the
Constitution, even though it is supported in the Articles of Confederation, and
interpreted by the United States Supreme Court (SCOTUS). Citizens want the right to leave their houses
for non-essential trips like going to the local bar or getting a haircut,
despite the current pandemic and its death toll continuing to rise within America’s
borders. They want their right to go
shopping without masks and PPE. They
want to hug each other without Social Distancing measures. They want to hold
barbeques and go out to see a movie.
Many just want to be able to work again, as the Stay-at-Home measures
effectively closed down places deemed “non-essential.” Yet, they are being asked by their government
to stay home, many times without pay, for the betterment of society. They are being asked to give up an individual
freedom – freedom of movement – for the sake of others’ health. Who is in the right? Is it as Hobbes suggests when he says, “It is
consequent also to the same condition that there be no propriety, no dominion,
no mine and thine distinct; but only that to be every man’s that he can get,
and for so long as he can keep it.”[4]
Or can we view it from Locke’s point of view:
“And
thus every man, by consenting with others to make one body politic under one
government, puts himself under an obligation, to everyone in that society, to
submit to the determination of the majority, and to be concluded by it; or else
this original compact, whereby he with others incorporates into one society,
would signify nothing, and be no compact, if he be left free, and under no
other ties than he was in before the state of nature.”[5]
Is freedom of movement
during a global health crisis still an “inalienable right” that we can enjoy? Or does the United States Constitution, a
Social Contract agreed to upon the founding of the United States (or a State constitution,
agreed upon by its citizens and legislature when the state was founded) allow
governments, be they federal or state, to enforce stay-at-home orders?
Before we can address these questions, we must first
define Social Contract Theory and how it applies to modern political systems.
Social
Contract Theory is the philosophical view that people inherently give up some
of their “natural rights” to be part of society. “Natural rights” can be
described as rights that are inherently afforded to all human beings, like
happiness and liberty, that, theoretically, cannot be given up or traded away
unless by contract. According to Rawls, speaking on natural rights, “Each
person possesses an inviolability founded on justice that even the welfare of
society as a whole cannot override.”[6]
Often, “natural rights” are seen as the pursuit of happiness and pleasure, to do
as we will, so long as we agree not to harm another person or their rights to life,
liberty, and property. All of us are equal in our pursuits and worthy of the
same natural rights. As Hobbes says:
“Nature
hath made men so equal in the faculties of body and mind as that, though there
be found one man sometimes manifestly stronger in body or of a quicker mind
than another, yet when all is reckoned together the difference between man and
man is not so considerable as that one man can thereupon claim to himself any
benefit to which another may not pretend as well as he. For as to the strength
of body, the weakest has strength enough to kill the strongest, either by
secret machination or by confederacy with others that are in the same danger
with himself.”[7]
“The Golden Rule” governing
quality and liberty as a state of nature is described by Locke:
“But
though this be a state of liberty, yet it is not a state of license: though man
in that state have an uncontrollable liberty to dispose of his person or
possessions, yet he has not liberty to destroy himself, or so much as any
creature in his possession, but where some nobler use than its bare
preservation calls for it.”[8]
Hobbes
goes on to discuss what he considers to be the two fundamental natural rights
in Leviathan[9]:
that of jus naturale, the freedom to pursue that which makes man happy without
suffering repercussions, considered a natural right, and lex naturalis, the
restriction on taking one’s or another’s life, as a natural law or contract that
restricts a man’s ability to infringe upon another’s liberties. He also explains
that the right to liberty and the restriction on taking another’s life as
separate concepts under one umbrella:
“For
though that speak of this subject use to confound jus
and lex, right and law, yet they ought to be distinguished, because right
consisteth in liberty to do, or to forebear; whereas law determineth and
bindeth to one of them: so that law and right differ as much as obligation and
liberty, which in one and the same matter are inconsistent.”[10]
The
only way a man can lose his natural right to do as he pleases, so long as he
doesn’t infringe on the rights of his neighbor to do as he pleases, is if he
relinquishes his rights via contract with the governing body to establish a system
of justice that will not only protect himself; it will protect his fellow
citizens as well. Hobbes argues that humans are inherently selfish and will
pursue evil for as long as they can get away with it, a natural state of war
with others, which is why he is heavily in favor of a ruling body that has the
power to legislate natural rights. He explains, “Whensoever a man transferreth his
right, or renounceth it, it is either in consideration of some right
reciprocally transferred to himself, or for some other good he hopeth for
thereby.”[11] Locke
had a somewhat more positive outlook on mankind in his Second Treatise of
Government, stating, “we must consider, what state all men are naturally in,
and that is, a state of perfect freedom to order their actions, and dispose of
their possessions and persona, as they think fit (…) without asking leave, or
depending upon the will of any other man.”[12]
Even
so, both philosophers acknowledged that there are inherent flaws in a system
based solely on natural rights that need to be legislated. Kant spoke frankly when he said, “No
generally valid principle of legislation can be based on happiness.”[13]
Many Social Contract Theorists agree that the only way to control man’s base instincts,
be they of the state of war or peace, and his natural rights to do as he wishes
so long as he didn’t hurt someone else, was through the establishment of a
system of justice, that is fair and impartial, for the benefit of all citizens.
Establishing an impartial system of justice ensured that all citizens were held
to the same expectations and that consequences for violating the natural order
were distributed as restitution.
In
order to have a functional government with a system of justice that protects
all of its citizens from the natural state of selfishness and war, which is
required of an established state, citizens agree to give away some of their natural
rights, as described by Hobbes and Locke, to promote the general welfare of the
state and have the rights guaranteed within that government afforded to them,
such as the Constitutions of both the Federal and State governments. Locke
discussed the necessary requirements of establishing a just society through
Social Contract Theory by noting, “all peaceful beginnings of government have
been laid in the consent of the people.”[14]
With consent of a majority of the people living in the newly independent United
States of America, a government was formed, consisting of three branches that created
accountability for government. Those consenting Americans ratified the U.S. Constitution,
considered by most present-day American’s as the backbone to our legal system.
However, the U.S. Constitution is a 244-year-old document that not everyone
agrees on how to interpret it. Some
think it is a living document that can be modified, interpreted, and revised to
accommodate the current times. Others
believe it is archaic and can only be read through the lens of the original intent
of the Founding Fathers. What is our obligation, with regards to our natural
rights, to a 244-year-old text, written by people who do not live in a post
industrialized society? Kant argues, “Thus, if a people, under some existing
legislation, were asked to make a judgement which in all probability would prejudice
its happiness, what should it do? Should the people not oppose the measure? The
only possible answer is that they can do nothing but obey.”[15]
He brings up an interesting point – What should we do when the government hands
down legislation asking us to forfeit our natural right to happiness? What if
it is a law that protects some at the inconvenience of others? Do we just
blindly obey? Kant elaborates,
“For
the law is such that a whole people could not possibly
agree to it (…), it is unjust. But, if it is at least possible that a people
could agree to it, it is our duty to consider the law just, even if the people
is at present in such a position or attitude of mind that it would probably
refuse its consent if it were consulted.”[16]
In
America, and more specifically, in Arizona, leaders and lawmakers are asking
people to stay at home, self-quarantining without an end date. Citizens are asked
to wear masks and wash their hands more frequently, to slow the spread of
Covid-19, which is in the best interests of the society (as a whole). Currently no specific laws exist in the
United States to stop an individual State, such as Arizona, from enforcing
Stay-at-Home orders within their boundaries. In Article II of the Articles of
Confederation, it states, “Each state retains its sovereignty, freedom, and
independence, and every power, jurisdiction, and right, which is not by this
Confederation expressly delegated to the United States, in Congress assembled.”[17]
Indeed, our Founding Fathers thought the right to freedom of movement to be
such an understood and “inalienable” right, they did not consider it necessary
to specifically include it within the Constitution, choosing instead to adopt
an abbreviated form of the right to freedom of movement in the final draft,
leaving it up to interpretation or amendment as time went on.
This
is not the case in other countries. Finland,
for example, has defined freedom of movement in Chapter 2, section 9, of their
constitution, permitting citizens “the right to freely move within the country and
choose their place of residence.”[18]
Why is it so different in the United States? Quarantine and Stay-at-Home orders
go against what is considered to be a “natural right” in that one expects to
have certain “inalienable rights” – like freedom of movement and the pursuit of
happiness – that are upheld by the nation-state. Freedom of movement, at least, movement
between states by free people, was declared a fundamental human right through Article
IV of the Articles of Confederation, but the elaborate explanation was excluded
by the official United States Constitution, adopted at the Constitutional Convention
in 1787 as the official Constitution, effectively replacing the Articles of
Confederation. SCOTUS has, several
times, leaned heavily in favor of the right to Freedom of Movement, at least
across state lines, as seen above, citing the Privileges and Immunities Clause
in Article 4, Section 2, Clause 1 of the United States Constitution, which
says, “The Citizens of each State be entitled to all Privileges and Immunities of
Citizens in the several States.”[19]
What if the United States is violating the Fourteenth
Amendment by restricting movement while Covid-19 spreads like a bad wildfire? Added to the United States Constitution in
1868, the Fourteenth Amendment states, “No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property,
without due process of the law; nor deny to any person within its jurisdiction.”[20]
Do we still have to follow these laws, even if they go against our “inalienable
rights” as described in the Fourteenth Amendment, despite a public health crisis?
Dworkin would argue that we do. “The vast bulk of the laws which diminish my
liberty are justified on utilitarian grounds, as being in the general interest
or for the general welfare,”[21]
he states. Berlin agrees, noting, “Yet
it remains true that the freedom of some must at times be curtailed to secure
the freedom of others.”[22]
These two philosophers argued that the needs of the many vastly outweigh the
needs of the one in a society, so Stay-at-Home orders would have fallen into
that category. Berlin also discusses the
notions of “Negative” and “Positive” Freedom, stating “If the liberty of myself
or my class or nation depends on the misery of a number of other human beings,
the system which promotes this is unjust and immoral.”[23]
It follows that it is in the best interests of the state to close down movie
theaters and ask people to stay home because there is a global pandemic. It is our moral obligation to listen to our
government for the safety of all within our borders.
Yet,
enforcement of the Stay-at-Home orders within the state is seen as encroachment
upon the rights given in the initial social contract with the nation-state: The
United States Constitution. Doesn’t the Fourteenth Amendment protect us from
home confinement? Yes, and no. Though never explicitly included in the
Constitution, the Fourteenth Amendment was ratified on July 9, 1868, including
the line, “nor shall any State deprive any person of life, liberty, or
property, without due process of the law.” The Fourteenth Amendment, as interpreted
by SCOTUS in Paul v. Virginia (1868), states: “It was not intended by the
provision to give to the laws of one State any operation in other States. They
can have no such operation, except by the permission, express or implied, of
those States.”[24] This
was further elaborated on in The Slaughterhouse Cases of 1873[25]
where it was determined that citizens of the United States are all guaranteed
the Freedom of Movement as outlined in the Fourteenth Amendment, but that does
not extend to the right of states to enforce their own laws about free movement
within the bounds of their jurisdiction.
To sum it up, state governments cannot stop you from moving to another
state (see Crandall v. Nevada), but they can enforce a lock down within
the state’s borders (see The Slaughterhouse Cases). Freedom of Movement is really a States Rights
issue, and the Constitution was clear that States will have sovereignty over
their populace.
Does
your right to move about freely trump my right to stay healthy during a global
pandemic outbreak?
While
Stay-at-Home orders inconvenience many Americans, some feel they are oppressive
violations of personal liberty, and against the natural and Constitutional rights
given to us by our Founding Fathers. However, the Public Health Services Act of
1944 does allow the CDC to “detain, medically examine, and release people whom
they have suspected carry certain diseases, and they regularly do monitor
people coming into the country for signs of certain diseases.”[26]
Moreover, this is in line with Mill’s explanation of Utilitarianism.
“The
moral rules which forbid mankind to hurt one another (in which we must never
forget to include wrongful interference with each other’s freedom) are more vital
to human well-being than any maxims, however important, which only point out
the best mode of managing some department of human affairs.”[27]
Jeske and Fumerton agree,
commenting, “If the consequences of people following the rule under
consideration would be better on balance than the consequences of people
following any alternative rule, then that is the correct rule.”[28]
Further,
States do have a right to enact legislation to cover gaps in Federal law,
including enforcing Stay-at-Home orders with police presence, drones, and fines. Rawls would argue that staying home is in the
best interests of all civilians, even though the individual may not want to stay
home and help flatten the curve, stating:
“although
a society is a cooperative venture for mutual advantage, it is typically marked
by a conflict as well as by an identity of interests. There is an identity of
interests since social cooperation makes possible a better life for all than
any would have if each were to live solely by his own efforts. There is a
conflict of interests since persons are not indifferent as to how the greater
benefits produced by their collaboration are distributed, for in order to their
ends they each prefer a larger to a lesser share.”[29]
Though some may view Stay-at-Home orders as a violation
of their natural rights, maybe even a breach of their American Social Contract –
the United States Constitution – States are granted authority to enact
legislation that is counter to our natural rights when there is a health
crisis. Because most of the citizens agree to the laws, we become willing
participants in the justice system, which has currently asked its citizens to
stay home for the benefit of the health of others in our society. Covid-19 does
not discriminate, regardless of the individual, and continues to be a health
threat to millions of people all over the world. It is our duty to listen to
our government, even if it costs us a night at the movie. Dworken concludes, “Laws
are needed to protect equality, and laws are inevitably compromises of liberty.”[30]
Unfortunately for us in Arizona, it means we have to let our hair remain uncut
until at least May 15th.
Works
Cited
Allegheny County
Bar Association. Quarantines: Can The Government Force Me To Stay Somewhere
Against My Will? . n.d. https://www.acba.org/public/Legal-Briefs-110414
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Andone, Dakin. Protests
are popping up across the US over stay-at-home restrictions. 04 17, 2020.
https://www.cnn.com/2020/04/16/us/protests-coronavirus-stay-home-orders/index.html.
Berlin, Isaiah.
"Two Concepts of Liberty (1958)." In Readings in Political
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Dworken, Ronald.
"What Rights Do We Have? (1977, 1978)." In Readings in Political
Philosophy, by Diane Jeske, & Richard Fumerton, 403-408. Buffalo, NY:
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Communications Department. Decrees concering the use of powers under the
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Hobbes, Thomas.
"Leviathan (1651)." In Readings in Political Philosophy, by
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Jeske, Diane, and
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Richard Fumerton, 311-320. Buffalo, NY: Broadview Press, 2012.
Kant, Immanuel.
"The Hypothetical Contract (1793)." In Kant: Political Writings,
by Hans Reiss, translated by H. B. Nisbet, 64-65. Cambridge : Cambridge
University Press, 1970.
Kuflik, Arthur.
"The Utilitarian Logic of Inalienable Rights." Ethics, 10
1986: 75-87.
Locke, John.
"Second Treatise of Government (1689)." In Readings in Political
Philosophy, by Diane Jeske, & Richard Fumerton, 50-64, 735-743,
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Mervosh, Sarah,
Denise Lu, and Vanessa Swales. See Which States and Cities Have Told
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(accessed 04 19, 2020).
Ministry of
Justice, Finland. "The Constitution of Finland." June 11, 1999.
Nozick, Robert.
"Anarchy, State and Utopia (1977)." In Readings in Political
Philosophy, by Diane Jeske, & Richard Fumerton, 87-99. Buffalo, NY:
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Rawls, John.
"A Theory of Justice (1971)." In Readings in Political Philosophy,
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https://supreme.justia.com/cases/federal/us/75/168/ (accessed April 15, 2020).
—. Slaughterhouse
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(accessed April 26, 2020).
United States
Congress. The Constitution of the United States of America.
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—. "U.S. Code
(55,135)." United States Code: Articles of Confederation, 1777.
[2]Mervosh, Sarah, Denise Lu, and Vanessa Swales. See Which
States and Cities Have Told Residents to Stay at Home. 04 07, 2020.
https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html
(accessed 04 19, 2020).
[3] Andone, Dakin. Protests are popping up across the
US over stay-at-home restrictions. 04 17, 2020.
https://www.cnn.com/2020/04/16/us/protests-coronavirus-stay-home-orders/index.html.
[4] Hobbes, T. (2012). Leviathan
(1651). In D. Jeske, & R. Fumerton, Readings in Political Philosophy
(pp. 29-48). Buffalo, NY: Broadview Press.
[5] Locke, J. (2012). Second Treatise
of Government (1689). In D. Jeske, & R. Fumerton, Readings in Political
Philosophy (pp. 50-64, 735-743, 1012-1022). Buffalo, NY: Broadview Press.
[6] Rawls, J. (2012). A Theory of
Justice (1971). In D. Jeske, & R. Fumerton, Readings in Political
Philosophy (pp. 100-110). Buffalo, NY: Broadview Press.
[8] Locke, J. (2012). p. 51
[9] Hobbes, T. (2012). p. 32
[11] Hobbes, T. (2012). p. 33
[12] Locke, J. (2012) p. 50
[13] Kant, I. (1970). The Hypothetical
Contract (1793). In H. Reiss, Kant: Political Writings (H. B. Nisbet,
Trans., pp. 64-65). Cambridge , United Kingdom: Cambridge University Press.
[14] Locke, J. (2012) p. 61
[15] Kant, I. (1970)
[17] United States Congress. (1781). The
Constitution of the United States of America. Philadelphia.
[19] United States Congress. (1777).
U.S. Code (55,135). United States Code: Articles of Confederation.
Retrieved from https://www.loc.gov/item/uscode1952-001000005/
[20] The Constitution of the United
States of America. Amendment XIV, Section 1
[21] Dworken, R. (2012). What Rights Do
We Have? (1977, 1978). In D. Jeske, & R. Fumerton, Readings in Political
Philosophy (pp. 403-408). Buffalo, NY: Broadview Press.
[22] Berlin, I. (2012). Two Concepts of
Liberty (1958). In D. Jeske, & R. Fumerton, Readings in Political
Philosophy (pp. 388-395). Buffalo, NY: Broadview Press.
[23] Berlin, I. (2012) p. 391
[24] Supreme Court of the United States.
(1869). Paul v. Virginia, 75 U.S. 168. Retrieved April 15, 2020, from https://supreme.justia.com/cases/federal/us/75/168/
[25] Supreme Court of the United
States. (1872). Slaughterhouse Cases, 83 U.S. 36. Retrieved April 26,
2020, from https://supreme.justia.com/cases/federal/us/83/36/
[26] Allegheny County Bar Association.
(n.d.). Quarantines: Can The Government Force Me To Stay Somewhere Against
My Will? . Retrieved 04 21, 2020, from https://www.acba.org/public/Legal-Briefs-110414
[27] Mill, J. S. (2012). Utilitarianism
(1863). In D. Jeske, & R. Fumerton, Readings in Political Philosophy
(pp. 282-295). Buffalo, NY: Broadview Press.
[28] Jeske, D., & Fumerton, R.
(2012). The Right and Wrong Ways to Think about Rights and Wrongs. In D. Jeske,
& R. Fumerton, Readings in Political Philosophy (pp. 311-320).
Buffalo, NY: Broadview Press.
[29] Rawls, J. (2012). A Theory of Justice
(1971). In D. Jeske, & R. Fumerton, Readings in Political Philosophy
(pp. 100-110). Buffalo, NY: Broadview Press.
[30] Dworken, R. (2012). What Rights Do
We Have? (1977, 1978). In D. Jeske, & R. Fumerton, Readings in Political
Philosophy (pp. 403-408). Buffalo, NY: Broadview Press.
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