Professor James R. Rogers has issued an erudite and charismatic evaluation of public policy and its missteps in the age of SARS-CoV-2. Rogers begins with a bracing review of our glaring failures to prepare for a pandemic that public health authorities told us for decades was inevitable. At the same time, he rightly refuses to go along with the easy but mistaken nostrum that science and public health expertise holds definitive answers to the value judgments that a pandemic inevitably produces. He laudably calls for a reinvigoration of democracy around infectious disease policy. He observes that people have different values and insists that those values warrant our respect. And he reminds us that “patience and empathy” are the appropriate ways for people to treat one another in working through authentic differences of value in the face of uncertainty and risk.

Strangely, however, Rogers’s analysis omits a crucial consideration in the project of living together and governing ourselves. I’m tempted to call it the crucial consideration of pandemics. People hold values and make risk assessments as human beings who deserve dignity and respect. But in a pandemic, we are also vectors of a disease that may kill or injure other people who are equally deserving of respect and dignity. Our conduct affects others. Externalities, as economists call them, are the pervasive feature and inescapable policy problem of epidemics. The central task of government is to make crucial and inescapable judgments about collective risk. And as for this task, Professor Rogers’s essay beckons us down an alluring but dangerously irresponsible path.

Salus Populi Suprema Lex

The problem with Professor Rogers’s argument appears first when he contrasts public health policy in 2020 and 2021 with what he calls “the traditional response” to public health risks, which he suggests regulated “sick or exposed individuals” only. But this is flatly wrong, as even the most cursory review of American public health policy reveals. Since the early republic, the federal, state, and local governments have imposed sweeping mandates to manage the risk of disease. Washington vaccinated his army. Similar vaccine mandates became the basic public policy of every 18th and 19th century state in dealing with diseases ranging from smallpox to polio and beyond. Prohibitions on travel for all people, healthy and sick alike, were commonplace. (No one was allowed in or out of 19th century Memphis when yellow fever struck the city.) Or consider that the basic sanitation rules we take for granted in our streets and neighborhoods today are a salutary outcome of the cholera years, in which cities adopted new public health mandates that closed down noxious businesses and shut down public nuisances. All such policies produced population-wide prohibitions on all sorts of conduct by the healthy and the sick alike.

The real historical tradition in infectious disease policy in the U.S. as elsewhere is one of robust regulatory authority—and for good reason. The world before antibiotics and before the eradication of smallpox and the victory over polio was a world of pervasive infection and death. Along with collective self-defense, the fundamental authority to look after the health of its people was one of the reasons people instituted government in the first place. Salus populi suprema lex, as Cicero put it. The most influential jurists of the 19th century—John Marshall, Joseph Story, Lemuel Shaw, and many others—agreed.

To be sure, as Rogers understands, most public health policy came from state and local governments, not the federal government. In Rogers’s arresting prose, the “grasping authority of the national government” has “created moral hazard incentives for states,” thus leaving state and local officials unprepared for infection crises. State and local government, Rogers insists, are the better place for pandemic policymaking, because they have local knowledge about conditions on the ground and (crucially, he says) because they better represent the values of their constituents. Policy preferences about risk in a pandemic will vary from place to place, Rogers correctly observes, and state-level decision-making seems to allow people to vindicate local preferences.

But not always. Sometimes the decisions of one state affect the people in another. This is why the Framers gave the power to regulate interstate commerce to the federal Congress, why the New Deal Supreme Court expanded the commerce power, and why the Constitution provides that citizens of each state are entitled to the privileges and immunities of citizens in other states. Today, population growth and the stunning speed with which we moderns move from one place to another have had the effect of vastly multiplying the effects that one jurisdiction’s decisions have on another. No one in the Dallas-Fort Worth International Airport or in New York’s Laguardia can imagine that masking and vaccine policies in Texas don’t affect New York and vice versa.

Professor Rogers says uncharitably that those like me who defend federal authority in pandemics “sneer” at the value of local decision-making. But we offer no criticism of local decision-making or of local decision-makers when we observe that state and local governments are institutionally ill-suited to manage pandemics. The point is simply that it matters when one group of people makes decisions that affect another.

Winners and Losers

One virtue of Professor Rogers’s essay is its smart observation about the potential one-sidedness of public health expertise. “Tunnel vision,” he calls it. Officials entrusted with managing public health may systematically undervalue the costs associated with precautions. I have watched this happen on my university’s campus during the Covid-19 pandemic. Administrators counting infection rates can easily underestimate the costs of policies that interfere with even basic operations of the enterprise. So I can testify on behalf of Rogers’s proposition. He understands the basic underlying problem, too. Pandemic risks do not mandate particular decisions about how we will live together. There are inescapable value judgments to be made about which activities to continue and which to restrict, about which risks to take and which to avoid, and about who will bear the costs of our decisions. There are no technical solutions to such fundamental questions, and no slogan about “following the science” can substitute for the hard judgments to be made. Elected officials drawing on the expertise of public health authorities have to make difficult calls.

Professor Rogers also makes an important observation about how people think about and value risk. Sometimes we happily take risks for ourselves that we would feel very differently about if others imposed them on us. Sometimes we even take on very high risks—if we feel they are our own choice—while resisting relatively low risks that seem to be imposed on us by others. Rogers’s valuable insight is that such judgments about risk are often expressions of values and thus worthy of our respect. When a person chooses to take a risk for themselves by, for example, gathering to celebrate a holiday or to participate in religious services in a pandemic, they are making a judgment about what matters to them. The same holds when a person takes a risk for themselves by preferring to remain unvaccinated. Such people are not necessarily making a mistake; they will often be making a value judgment about the kinds of risks they care most about in a world fairly bristling with risks all around.

There are many things to say about this vital problem in public policymaking and the law. In a different forum, and with more space and time, I might observe that in the actually existing world, many of the preferences we have about risk are often rooted in errors about the probabilities. I might note that even when we correctly understand the mathematics of the relevant risks, it turns out that the way we frame those risks is vitally important. Governments inevitably shape those frames, and so public policymaking is in part about constructing the frames with which people understand the situations in which they find themselves. I might observe, too, that the failures of preparation Professor Rogers rightly decries may also have psychological explanations: people prefer to spend money on utility today rather than on preparations for uncertain risks tomorrow. Rogers believes that we can call such decisions mistakes. I agree. But similarly, I suspect that many individuals’ decisions to risk sickness tomorrow for utility today are mistakes of the same kind, not expressions of genuine values.

All of these concerns pale by comparison to the central missing piece in Professor Rogers’s analysis. In his conception, pandemic policy has adopted a mistaken form of paternalism. Governments have required that healthy people adopt a particular way of being, which officials (elected and otherwise) insist is better for us. But pandemics are not principally about paternalism. They are principally about the dangers we impose on one other.

Whether we are healthy or not, we affect one another. Human beings potentially carry hundreds of viruses and serve as hosts to any number of other infectious vectors, often unwittingly. During a pandemic, we may carry new and especially dangerous ones.

When I choose to remain unvaccinated or not to wear a mask—or to gather for religious services or celebrate a holiday—I am not merely making a risk decision for myself, I am making it for others as well. I am quite literally imposing my behavior on others, forcing the people around me into a new choice set about how they live their lives. There is no escaping the value choice at stake in deciding how we will regulate our collective life. Rogers is right that science will not provide the answer. But nor will an unreflective conception of liberty, since there are liberty interests on both sides.

Justice John Marshall Harlan knew something about liberty. In 1896, Harlan had been the sole dissenter in the U.S. Supreme Court’s shameful decision in Plessy v. Ferguson; Harlan insisted correctly that the apartheid system of Jim Crow was unconstitutional. A decade later, the same Justice Harlan wrote for a majority of Court in upholding a mandatory vaccination program like the ones that states had adopted since the early years of the republic. In a pandemic, he explained, “real liberty” required public health mandates for healthy and ill people alike. Without coordinated action by the government, Harland understood, we would be at the mercy of our most careless fellow citizens. Freedom depended then, as it depends now, on preventing others from interfering unduly with our lives.

Professor Rogers concludes his essay with the parable of a gamble. Imagine, he writes, a society whose citizens are offered magical lottery tickets for the price of $10. Fifty percent of the tickets will be winners yielding $50. The other fifty percent of the tickets will be losers yielding $0. Strict rationality would require that any rational citizen purchase the offered ticket, since the expected value of each ticket ($25) is two hundred and fifty percent greater than its cost ($10). The society itself is made better off by such purchases, too: assuming that the wealth of a society is the aggregate wealth of its members, universal ticket purchase will make society two and a half times wealthier than it was before. Social welfare and individual rationality seem to run together.

Rogers observes that social welfare and individual rationality may diverge. Individual citizens, it turns out, may rationally decide not to purchase a ticket if they value the security of their $10 sufficiently highly. Citizens may choose to be risk-averse along certain dimensions. And to be sure, I agree that we should honor that value. It warrants our respect as much as, and perhaps more than, most other values. But make no mistake, Rogers’s parable is no hypothetical. It is real, and we are in it. As a society, for better and for worse, we have overridden many people’s risk aversion by adopting a market economy in which virtually everyone is forced by virtue of their social position to buy a ticket. The market gamble produces vast social wealth and once-unimaginable economic growth. It leaves us with winners and losers, too.

Yet as a society, we need not and do not rest with the initial field of winners and losers. A mix of public and private institutions (all of them constructed and sustained by state policy) helps us lessen the burden of capitalism’s losers. The state adopts welfare and unemployment arrangements, on the one hand, and the market develops private insurance and finance mechanisms, on the other. In Rogers’s lottery, any market economy worth its socks would instantly produce a hedging product to solve the risk aversion problem, thus providing society the upside from buying as many tickets as possible while protecting risk-averse buyers from the downside. And sometimes we regulate to constrain certain moves in the marketplace because the costs of attending to the losers after the fact are too high.

Strangely, the parable of the gamble is poorly designed as a diagnosis for the age of pandemics. A more apt analogy would be to a lottery with externalities: a world in which each ticket I buy reduces the odds and lowers the payoff for my fellow ticket holders. What, in such a world, are mandatory vaccination policies, mask mandates, and limits on social gatherings? They are efforts to coordinate risk calculations so that the risk-takers don’t crowd out the risk-avoiders by sheer virtue of the power of their preferences. This basic proposition holds true for state law requirements and for federal initiatives equally. Professor Rogers takes aim at the technocrats and champions the elected politicians. But he is strangely silent on a newly assertive threat to democratic public health policy. Today it is judges telling the same story Rogers does about technocrats run amuck who pose the biggest risk to electorally accountable pandemic policies. Led by the U.S. Supreme Court, a new generation of judges has attacked the foundations of the “real liberty” about which Justice Harlan wrote so movingly more than a century ago.

Living together is a gamble; it’s a ticket we have little choice but to buy. Pandemics ask us to deal with the fact that most of our gambles—individual and collective alike—pose dangers to others. No decent society can pretend otherwise.