Covid-19: Do Governments Have the Moral or Constitutional Authority to Prevent Citizens from Making a Living?

Several Western governments, including Ireland’s, have taken it upon themselves in recent weeks to legally incapacitate a large number of citizens – in Ireland’s case, those unfortunate enough to work in the retail or pub and restaurant sectors – from opening the doors of their businesses. The rationale for such prohibitions is that we must keep Covid infections, illnesses, and deaths down as low as we possibly can, and protect our hospitals from becoming saturated.

This sort of rationale for forcing businesses to shutter or radically downsize may have had some rational basis early on in the pandemic, when much less was known about Covid-19, and we needed to buy ourselves time to better adapt our health services to a highly infectious and relatively unknown disease.

But when prolonged lockdowns, initially considered a deeply regrettable emergency measure, morph into a standard tool for fighting infectious disease, governments are skating on thin ice. Self-respecting citizens would be right to doubt whether any government has the moral or legal right to order them to stop making a living.

When governments mandate prolonged business closures that endanger citizens’ livelihood, we can and must question their authority to do so. For governments do not own us, and their presumptive authority to regulate our social life does not trump our liberty and our equal standing as citizens.

The American Declaration of Independence articulates a principle that lies at the root of republican government, namely that citizens are not slaves and political rulers are not their masters. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

Political rulers govern at the good pleasure of the citizens who elect them. The formidable powers political rulers enjoy, including the right to tax people’s income and regulate social life, are granted for a specific purpose, namely, to safeguard the freedom, security, and prosperity of all.

The authority of rulers to intervene in social life is limited in constitutional democracies by the public ends they serve, and the fundamental rights of citizens. Insofar as rulers betray the ends of civil government, or trample on the rights of citizens, their moral, and indeed legal and constitutional authority to govern are brought into question.

The Irish government is now telling restaurant and retail businesses that they must stop operating because some of their employees or customers might contract an infectious virus.

Now, a businessperson may voluntarily decide to stop operating their business for the sake of bringing down the incidence of a particular disease. But it is patently unreasonable and unjust to obligate somebody to surrender their livelihood and that of their business affiliates (incurring known risks associated with poverty and unemployment for their mental and physical health), in order to keep the wider population safe from a disease with an infection fatality rate of between 0.2 and 0.3%, and a well-established risk profile.

Most citizens would accept that a government may legitimately regulate many aspects of social and commercial life, and tax property and income for a certain range of public purposes. But this does not give a government a blank cheque to systematically attack citizens’ basic interests or actively deprive them of the means to eke out a living for themselves and their families.

Furthermore, those who pretend to justify repeated and prolonged lockdowns on public health grounds betray extraordinary ignorance of the intimate connection between health and economic prosperity. Shuttering businesses is bad for public health, because there is a strong correlation between poverty and declining health outcomes.

If the Irish government continues to impose restrictions that effectively prevent citizens from making a living, nobody should be surprised if compliance with Covid regulations, and respect for public authority, decline significantly over the coming months.

So what is the alternative to rolling lockdowns? Open up for business as usual and pretend Covid-19 is not a real threat? Of course not. There are other ways to manage Covid-19, but many governments, including Ireland’s, have become too radicalized in their thinking to give them any serious consideration.

One plausible alternative approach has been articulated in the so-called “Great Barrington Declaration,” drafted by world-leading public health experts from Oxford, Harvard, and Stanford Universities.

According to this approach, we should develop strategies for protecting those individuals most at risk from Covid-19, in particular the elderly, those in care homes, and those with serious underlying diseases. We should allow people at low risk from Covid-19 – namely, most people under 65 – to get on with their lives, and keep working and feeding their families. Meanwhile, we should do what we can to adapt our health services to cope with potential spikes in demand during the annual flu season.

This approach, which would minimize damage to the livelihood and mental and physical health of the general population, while addressing the risks of Covid-19 in a targeted way, has been sneered at by many journalists and politicians, as a piece of “right wing” propaganda.

They seem to think that tanking an economy and impoverishing a generation of citizens is more sensible than provided targeted protection to those most at risk.

History will be the judge of that.

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