The Politics of Life and Death

Pandemics are superlatively about “law and liberty,” the tradeoffs between public health, liberty, and other values. I appreciate the editors at Law & Liberty for organizing a forum on the next pandemic considering what we’ve learned (and what we haven’t learned) from this one. And I appreciate the insightful, and sometimes challenging, responses by Dr. Dalrymple, Professor Witt, and Ms. Dale to my original forum essay. I offer a couple of general observations, then reply to select items from my interlocutors.

In discussing the policy of pandemics, whether for COVID-19 or the future, it is tempting to style the choice as one between law or liberty, between public health or rights. Yet it is always a matter of where we draw the line between the two concepts, not if we draw the line.

For example, the oft-repeated catchphrase that “life is of infinite value” reflects little more than rank sentimentalism. It is something no one really believes about their own life, and its bland invocation results only in poor policy decisions.

The irony is that we make tradeoffs between our lives and other goods so often that we don’t recognize how pedestrian the choices are. For example, driving a couple of additional miles to get the sale price on a good or service reflects the implicit value we all put on our own lives: the added risk of injury or death from the additional distance relative to the marginal cost savings. Contrary to the denunciations of cold economic calculations that “put a price on life,” all the economist does is calculate the value that we ourselves put on our own lives. The fact is that none of us places an infinite value on our own lives.

The tradeoffs are not limited to economic gain. All of us, no matter our ideology, have preferences that make tradeoffs between liberty, on the one hand, and life and safety on the other. For example, the ancient legal maxim that “it is better that ten guilty persons go free than that one innocent person be wrongly convicted” is a principle that prevents the conviction of numerous criminals. Yet both liberals and conservatives endorse the maxim despite it resulting in higher crime rates.

So too in a pandemic. Individuals differ on what restrictions on liberty might be reasonable in light of the risk. As with different individual opinions, different groups of individuals will naturally make different social choices regarding where they draw the line. It would be a surprise if the voters of Massachusetts drew the same boundary between liberty and public health as the voters of Texas.

At the same time, it is not at all as if public health must always make way for liberty. While today “liberty” is often reduced to “individual rights,” in the American tradition “liberty” included corporate self-government as well as individual rights. But social choice is social choice. That is, a choice of rules that apply to an entire society. Not only is it unrealistic to expect that many rules would have the unanimous support from everyone living in a society, but truth be told (not least by Buchanan and Tullock in The Calculus of Consent) none of us would want to live in a society in which all policy decisions required unanimous consent. This is not less true of pandemic policies than of other policies.

The implication of heterogeneous preferences over law and liberty, however, is that the social choice of pandemic policies will err on the side of supplying more liberty than most of us prefer relative to public health and safety, or providing more public health and safety than most of us prefer relative to liberty. This disagreement isn’t an anomaly, it is rather to be expected. Indeed, it would be a remarkable anomaly if disagreement didn’t exist.

Turning to a few specific comments in response to select comments of my interlocutors.

Ms. Dale is taken, as am I, with the different perceptions of voluntarily as opposed to involuntarily assumed risks. Voluminous research continues on this topic in social psychology, and it surprises me (although perhaps it shouldn’t) that the research hasn’t attracted more attention than it has. This is particularly true given the “follow-the-science” mantra.

Ms. Dale is not quite correct, however, in suggesting that “The traditional ‘positive externality’ rationale for mass vaccination—preventing other people from getting infected and so achieving herd immunity—does not apply” to COVID-19 because “vaccinated people catch and spread COVID-19,” and all the vaccination does is reduce the seriousness of the disease and hospitalization.

While it is true that vaccinated people do catch and spread COVID-19, the vaccination has two distinguishable effects: it reduces the probability of contracting COVID-19 in the first place, and, if one nonetheless does contract the illness, it tends to reduce the seriousness of the illness. While vaccinated people can spread the disease if they contract it, the vaccination still reduces the spread of the disease because fewer vaccinated individuals contract the disease in the first place relative to unvaccinated individuals. There remains a “love thy neighbor” justification for getting vaccinated. And a social rationale for mandatory vaccinations.

My own policy preferences sort mainly along policy cost. The broad-based closure policies of the early part of the pandemic were highly costly, with costs imposed disproportionately on less affluent households. A serious “trace and track” policy, with confinement limited to quarantining infected or likely exposed individuals, or particularly vulnerable populations, would achieve much of the benefit of the closure policies at a small fraction of the economic and social cost. The closure policies were panicked policies prompted by the lack of preparation for a pandemic despite the warnings spanning prior decades.

On the other hand, vaccinations, mask wearing, and distancing are low-cost measures relative to the likely social benefit. If I were a state legislator I would vote to allow state public health authorities to make those policies mandatory based on their judgment of the evidence. That said, the median voter in my state apparently disagrees with me on that assessment. It’s an assessment to which I willingly defer even as a disagree with it.

Dr. Dalrymple takes me to task for suggesting that a public health infrastructure could have more cost effectively prepared us prior to the onset of COVID-19. This preparation would have minimized social and economic damage relative to the panicked overreaction of government officials and public health authorities at the start of the pandemic. Dr. Dalrymple writes,

I know that the stock market is going to crash because the stock market always does crash sooner or later. But from the point of view of my wealth, I need to know not only that it will crash, but when it will crash. . . . A prediction without time limit is not very helpful.

While I agree that the cost of creating and maintaining an infrastructure is relevant, the choice of frame, and our respective estimates of the underlying costs and probabilities are critical.

For example, I do not know when, or even if, my house might burn down. Yet I purchase insurance for that contingency. Socially, we do not know when the next war might break out, yet we pay for a National Guard, military reserves, and even a standing military. We do not know when, or where, the next fire will break out in our communities, yet we require fire alarms in many places and pay for firefighters when the contingency arises. In none of these situations do we know “when” the event will occur.

I think the experience of the last fifty to sixty years lulled the world into underestimating the frequency and danger of pandemics. A better prepared public health infrastructure would likely allow a better targeted response to the next pandemic at a fraction of the cost.

Pandemics provide hybrid situations in which costs internal to the state are very high indeed, and induce fully attentive state-level policymaking.

Professor Witt and I disagree mainly on the efficacy of state-level public health policies as opposed to a nationally centralized response. (He also criticizes me for limiting pandemic response to individual-level responses. This is fair enough given the four corners of my forum essay. I am on record, however, that self-government entails a relatively expansive understanding of traditional state police powers.)

I am, however, much more sanguine about the adequacy of state-level responses to pandemics relative to the centralized response that Professor Witt seems to prefer in his recent book as well as in his reply.

Professor Witt is correct in noting that state-level pandemic policies carry with them externalities that can impose on other states. He is incorrect, however, in seeming also to hold that the mere existence of externalities is a sufficient condition to generate a suboptimal policy response to a phenomenon.

First, on the policy-making in light of externalities. The question at the constitutional convention as well as today is the relative distribution of internal to external costs. For state policymakers, state-level policy responses to pandemics do not merely generate external costs imposed on other states. Pandemics provide hybrid situations in which costs internal to the state are very high indeed, and induce fully attentive state-level policymaking.

This can make a critical difference in whether an externality generates a suboptimal outcome or not.

Consider the classic externality of air pollution caused by auto emissions. In the ordinary case, left up to individual action, people would not purchase catalytic converters because the individual cost of the converter is higher than the marginal individual benefit to the person of their own reduced auto emissions.

Yet suppose the individual benefit to a catalytic converter were, say, $1,000 to the individual car owner. Then, if the price of the converter were $500, individual incentives would nonetheless be sufficient to generate socially optimal (or efficient) individual decisions. This would be the case notwithstanding that the externality exists as well.

The internal state-level costs of pandemics are like the hybrid situation rather than the textbook case of an externality. That is, state officials face more than sufficient incentives to respond to pandemics in light of their state’s circumstances and voter preferences. Critically, that one state does not adopt the same policies as another state in light of its circumstances and voter preferences is not an example of “uncoordination.” It’s merely heterogeneity.

Further, states can require that individuals entering their state be tested, or quarantine for a particular period of time, etc., if their social choices on public health measures weigh law a little more heavily than liberty relative to other states. (As long as non-citizens returning to those states are subject to the same treatment as citizens returning to those states.)

As with other values, different states reflecting law/liberty mixes in the face of a pandemic, both because of different circumstances as well as different political preferences, is an efficiency-maximizing outcome relative to centralized national decision making. This produces conditions akin to those underlying the Tiebout result regarding the optimality (or efficiency) of decentralized decision-making. The implication is that merely because people in a different region of the country disapprove of Texas’s law and liberty mix on pandemics does not perforce mean that it is not optimal to allow Texas officials and voters to implement a different mix than that individual prefers. And that can be the case even when the policy disagreement between states results in higher levels of disease. Recall the opening point of this essay: All of us, regardless of ideology, make a tradeoff between lives and other values. The gains from allowing decentralized public health decision-making, even for pandemic policies, can easily compensate for the costs of having heterogenous policies adopted by the varied voters of the varied states.

Pandemics quite literally raise life and death political issues. The seriousness of pandemics, however, does not necessarily change the politics of the matter. It is imperative that American policymakers, and citizens, learn from the failures, and successes, of the COVID-19 pandemic looking forward, regrettably, to the next pandemic.