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More on Lockdowns and the Presumption of Liberty

Here’s a letter to a personal friend:

Mr. P____


Thanks for your e-mail in which you dissent in part from the position I take in my letter to Matt Zwolinski. You write that “Closing bars, for e.g., does impair freedom, but appears to be effective. If effective, the rights of uninfected people are at risk when all bars are open. When the evidence is strong enough, one freedom may have to be impaired temporarily to protect another freedom. There is no ironclad law here.”

I fully agree that we ought not here be bound by an ironclad law – as in, by a law with no exceptions under any circumstances. As I said in my letter to Matt, the question is whether or not a burden of persuasion to overcome a presumption of liberty has been met. One way to express my dismay at the events of 2020 is that so many true liberals and libertarians seem to have rejected, or at least forgotten, the presumption of liberty.

What is ironclad for me is starting with this presumption, one that imposes the burden of persuasion always on those who would restrict liberty.

To meet this burden, restrictionists must show, as you note, that general restrictions such as the closing down of bars and nightclubs actually reduce the risks of noninfected people becoming infected. I’m willing here to concede that this condition holds.

But this condition alone is insufficient to justify the sorts of general restrictions on liberty that have been imposed in the name of fighting Covid-19. Each of three additional conditions must be persuasively shown to hold in order for these restrictions to be justified in the face of a presumption of liberty. These three additional conditions are:

(1) Lockdowns are likely to reduce total premature deaths, and not only during the lockdown period but after lockdowns are ended. On this matter, as I said in my letter to Matt, the evidence is murky. A large number of studies show that lockdowns actually don’t work. Of course pro-lockdowners dismiss these studies as being flawed, preferring those studies that show that lockdowns save lives. But many of the ‘anti-lockdown’ studies are done by prominent researchers with no obvious ideological axes to grind. I believe that these studies deserve attention.

(2) There are no less-restrictive plausible means of achieving the same or similar reductions of mortality and morbidity as are achieved by lockdowns. In the case of Covid-19, because the risks fall overwhelmingly on the very elderly and ill, it seems to me that responsibility for remaining isolated falls on them, as opposed to compelling everyone to stay home and out of public places.

No knowledgeable person denies that the coronavirus is contagious. No knowledgeable person denies that Covid-19 is somewhat more lethal to adults than is seasonal flu. But the dominant public attitude – as expressed by the media and by politicians – is that the only feasible means of limiting the personal contacts that spread the virus lethally are general restrictions imposed on everyone, rather than focusing protection on the most vulnerable. This attitude strikes me as mistaken.

When the three co-authors of the Great Barrington Declaration proposed the latter course in October – a course they call “Focused Protection” – they were immediately ridiculed out of hand. There was no reasoned discussion of the matter. These authors were dismissed as quacks and much worse.

One of these “quacks” is on the faculty at Oxford, another at Harvard, and the third at Stanford. All are accomplished scientific researchers. (And, by the way, none is a libertarian.) Their august affiliations and previous accomplishments, of course, do not prove these scholars here to be correct. But these affiliations and accomplishments are sufficient added reason to give these scholars’ argument a respectful hearing. Yet no such respectful hearing was forthcoming from the mainstream media and high political circles. The fact that these scholars’ argument was dismissed so quickly, with such scorn, and with heavy helpings of ad homimem innuendo tells me something – something not flattering – about the pro-lockdown crowd.

This treatment of the recommendation of the Great Barrington Declaration more than any other single action by pro-lockdowners opened my eyes to the reality that alternatives to general restrictions were simply off the table because of mass hysteria rather than because of any reasoned analysis.

(3) A third bit of additional persuasion that pro-lockdowners must achieve in order to overcome the presumption of liberty is that the means of lockdowns are unlikely to create precedents for the abuse of power in the future.

People on the political left, of course, don’t much worry about this third factor, as they generally don’t fear power as long as it is in the hands of Progressives. But those of us who cherish liberty do so in part because we fear power regardless of whose hands grip it. For us to ignore the likely precedents created by today’s increased use of power would be irresponsible of us.

I have, to my distress, seen very little reservation expressed by pro-lockdowners about the power precedents that are likely being created by the Covid lockdowns.

As an empirical matter, I don’t deny that humanity might one day be struck by a disease so contagious, so insidious, so indiscriminate, and so lethal that measures as draconian as we’ve suffered in 2020 might be justified even from a pro-liberty perspective. But I’m now convinced that Covid-19 doesn’t remotely come close to being such a disease.

Governments’ responses to Covid-19 have been, and continue to be, massively out of proportion to this danger. And apologists for the lockdowns continue to ignore the strongest arguments against their position. These lockdown apologists repeatedly slay straw men – theatrical feats falsely portrayed by the media as decisive victories against quacks and goofy clowns. None of this gives me even small confidence that lockdown policies come from a rational and well-considered place.