Liberalism Tested: ?Actions prejudicial to the interests of others'

• Author: Peter Boettke
• Position: University Professor of Economics & Philosophy, Department of Economics, MSN 1A1, George Mason University, Fairfax VA 22030
• Pages: 675-691

Liberalism Tested: ‘Actions prejudicial to the

interests of others’

PETER BOETTKE*

ABSTRACT

Liberal principles of self-government are severely tested when faced with an

existential threat like foreign attack, financial crises, and a global pandemic.

COVID-19 represented such an existential threat to the liberal order. The pol-

icy path followed as a consequence of such an emergency will either affirm lib-

eral principles or represent their suspension. The paradox in the effort to save

the liberal order by deviating from liberal principles is that we may in fact lose

liberalism as a guiding principle in our economic, political, and social life even

after the existential threat has been averted. A robust liberalism, on the other

hand, would survive even an extreme stress test. A pandemic is a true public

health issue with significant harms, but liberal principles would see the source

of our ability to address the crisis in the adaptation and adjustments in social

interaction (in personal behavior and in the ordinary business of life) that

reduce spread. This is found in creative and clever scientists discovering new

drugs to address the symptoms and ultimately a vaccine to eradicate a novel vi-

rus; in doctors, nurses, and other medical professionals applying their great

skill and compassion to care for ill patients and discovering better protocols

and medical treatments to prevent the ill from becoming critically ill; in the

actors of civil society engaging in a variety of acts of charity to aid the most

vulnerable among us; and in entrepreneurs discovering mitigation strategies so

that the ordinary business of life can proceed in safety and good health.

Liberalism, when tested, will find that the vibrancy of bottom-up solutions

begins in communities and the intricate web of relationships between commer-

cial society, civil society, and at all levels of the government, rather than in the

top-down solutions of government command and control efforts.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 676

I. RESTATEMENT OF LIBERAL PRINCIPLES OF JUSTICE. . . . . . . . . . . . . 677

II. NEGOTIATING TRADE-OFFS IN THE PUBLIC SPACE . . . . . . . . . . . . . 681

* University Professor of Economics & Philosophy, Department of Economics, MSN 1A1, George

Mason University, Fairfax VA 22030. I beneted greatly from the comments and criticisms from

participants in the Georgetown Institute for the Study of Markets and Ethics symposium on regulation.

In addition, I greatly appreciate comments from Rosemary Boettke, Rosolino Candela, Jessica Carges,

Chris Coyne, William English, Adam Martin, and Virgil Storr. The usual caveat applies.

675

III. THE LIBERAL ALTERNATIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 686

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 691

INTRODUCTION

John Fabian Witt, in his provocative and informative legal history American

Contagions: Epidemics and the Law from Smallpox to COVID-19 (2020), argues

that there are tensions at the heart of the constitutional project related to liberty

and public health. There are, of course, different ways to tackle a serious public

health issue, and some of those might be more consistent with a robust concept of

liberty. But given the severity of the problem, there also might not be such an

array of policy choices in addressing these types of public health crises. Pointing

to sources ranging from John Locke, who argued for broad governmental author-

ity to combat the “corruption or infection” of the living environment so as to pro-

tect “the public commerce and health,”

1

to the rulings of the Superior Courts of

the various states in the early republic, to landmark cases such as the 1824 deci-

sion of Chief Justice John Marshall in Gibbons v. Ogden finding that authority of

the State “to provide for the health of its citizens” must be acknowledged,

2

Witt

demonstrates the many ways that people have approached negotiating the trade-

offs between liberty and public health. Legislation undergirding inspection laws,

quarantine laws, and other public health and safety measures should not be con-

stitutionally denied. Such laws are necessary for the establishment and mainte-

nance of the common good.

Public health measures have been critical for addressing the problem of dis-

ease. They are also a testing ground for an ongoing debate over what constitutes

responsible citizenship in a free society. As Witt states: “Liberty and property

would sometimes have to give way to public health imperatives.”

3

The critical

argument, though, is that “[t]he public’s health highlighted the value of collective

action through the state, because our incapacity to manage our own environments

individually meant that in the domain of public health we are all dependent on

government to act for us.”

4

In stating the issue so starkly, Witt sets up the thought

experiment. Could we envision a set of institutional arrangements where private

citizens could manage their own environments effectively—without recourse to

the police powers of the State—to ensure public health? My thought experiment

is not unlike the thought experiment and the subsequent natural, lab, and field

experiments that Elinor Ostrom engaged in to address the collective action

1. Fundamental Constitutions of Carolina, in THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL

CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES NOW HERETOFORE

FORMING THE UNITED STATES OF AMERICA 2772, 2778 (Francis Newton Thorpe ed., 1909).

2. Gibbons v. Ogden, 22 U.S. 1, 205 (1824).

3. JOHN FABIAN WITT, AMERICAN CONTAGIONS: EPIDEMICS AND THE LAW FROM SMALLPOX TO

COVID-19 22 (2020).

4. Id.

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