Does the text of the Free Exercise Clause justify special judicial scrutiny of laws burdening religious freedom?
The social nature of human beings is the bedrock of our existence. We’re built by and for our relationships with other human beings. As Adam Smith tells us in his Theory of Moral Sentiments, human sociability develops through a subtle, continuous exchange of words and gestures between human beings that includes everything from raising an eyebrow to buying a car. From this process, each human being develops an “impartial spectator” or “man within the breast” who informs him about what is and is not acceptable to his fellows and colleagues based on the often nearly invisible cues we receive in response to our words and behavior. Through the pleasures and pains of human relationships, we are trained in the complex dance of social life.
Perhaps the largest, most important, and most pervasive effect of the COVID-19 pandemic—aside from illness and death—is the way that it interacts with and, in many cases, runs head-long into Smith’s insights about our nature and developmental process. Simple behavioral changes like masking and social distancing interfere with the close, continuous interaction with family, friends, acquaintances, and even strangers that we rely on to gain maturity and maintain psychological and emotional health. This is not a peripheral concern. Our natures propel us into the “dance” of sociability; we are conditioned to it by instinct and life-long experience, and we require it in order to thrive—both personally and in our social and economic relationships. Without the dance, we suffer.
Seen from this perspective, COVID-19, while certainly not the worst pandemic in history, has been highly disruptive to human social relations at every level, from simple neighborliness to international trade. The close, interpersonal relationships that enrich our lives and guide ordinary commerce have been severely limited in order to reduce the spread of the illness. Social media—which had already assumed an outsized role in substituting for in-person exchange—has accelerated and expanded wildly as much of our work life has moved from office buildings to living rooms and kitchens. Rather than gaining and growing from our social exchange, we experience a new kind of “Zoom fatigue” that results from too many hours electronically connected yet socially isolated. We are surviving physically, and that’s important, but the longer-term effects of social separation on our vitality as individuals and communities are yet to be discovered. They are unlikely to be helpful.
What happens in our social interaction locally is mirrored in more distant matters of economic exchange. Smith held that economic development, what he called “opulence,” was limited chiefly by the breadth of our markets and our ability as individuals and nations to maximize our comparative advantages. Pre-COVID, globalization had connected the world with resulting leaps in knowledge, wealth, income, and human well-being. When we ask, “Who made the pencil (or the PPE)?” for the first time in human history, the answer truly is—or was—that we all did. The disruption of these patterns of exchange and trade is also no small matter. Our health and well-being depends upon the knowledge, labor, skill, and manufacturing capacity of communities across the globe. COVID has disrupted more than just dining out—it is eroding the economic gains that have pulled hundreds of millions out of poverty. COVID has made us sicker, and because of the way it is disrupting economic exchange, it is likely to make us poorer.
If Smith could apparate into our midst, what might he have to say about the coronavirus crisis and our response to it? I suspect he would agree with social distancing and masking if for no other reason than that they would have been familiar to him as practices that help reduce the spread of disease and preserve human life. He would probably regard efforts to spare family, friends, associates, and those working in business and services as a matter of manners and consideration, fully supported by traditions that he esteemed highly.
At the same time, Smith might be shocked and mystified by some of the violent, if performative, reactions to these practices caught on magical devices called “iPhones,” themselves a case study in what happens when human ingenuity meets comparative advantage. What had gone wrong, he might ask, in the development of the “impartial spectator” that freed individuals to engage in this kind of coarseness, cruelty, and lack of mutual deference? How, he might wonder, had a nation with such eroded social reciprocity—the very heart of his moral and economic philosophy—achieved its political and social stability as well as its staggering wealth? He might also caution that should such a nation continue on its current trajectory, prosperity and liberty might be at risk to public disorder and an increasingly intrusive government that had to enforce through coercion what might and should have been achieved through personal restraint. His alarm might be increased by the knowledge that some jurisdictions here and elsewhere had already moved to impose authoritarian controls to compensate for the increasing erosion of mutuality and self-control.
This line of questioning might inevitably lead Smith to ask questions about the influence of the aristocracy. Who is providing the signals to the rest of the society that self-restraint was no longer desirable or necessary? In our era, there is no dearth of candidates from Spring Break Week to Page 6 to Twitter. Senior government officials abuse the privileges of their office with few, if any, consequences. Political log-rolling yields corporate cronyism and tax legislation that channels benefits to favored classes of the uber-wealthy and politically au courrant. And, then, there’s the problem of the chief magistrate himself, Donald Trump, and his personal comportment refracted through the management of the COVID-19 pandemic.
It would be difficult to imagine a leader more deprived of the salutary effects of Smith’s “impartial spectator” than the current occupant of the White House. He embodies a state of nature that Smith posited was impossible in the actual world: a man who, lacking social mirrors by which to mediate and shape his attitudes and behavior, arrives in the world’s most powerful office utterly unprepared and unable to respond effectively to the social dimensions of the pandemic, much less provide practical leadership to the body politic. In an historic moment where effects of widespread trauma and social isolation would tax the capacity of any leader, Trump is caught emotionally and psychologically flat-footed and appears one-dimensional under the klieg lights of public scrutiny. Imagine, by contrast, what Bill Clinton, Barack Obama or George W. Bush, all skilled at sensing and responding to the national mood, would have done with this moment.
Many leaders in the Western world, from presidents to governors to big-city mayors, have gotten a significant and mostly sustained bump in public approval from COVID-19 just by channeling the fear and grief of the public and providing moderately competent administration—except Trump. When he stood before the lectern a few weeks ago and speculated on why he had become so unpopular he said, “It can only be my personality.” This was a signal moment in the life of Donald Trump: a completely novel encounter with the “impartial spectator” telling him a truth about himself. Alas, it passed as quickly as it came.
The fracture in our social condition, then, runs from the bottom of society to the top, and the signs of it are all around us. The protests, demonstrations, and riots of the past two months are at least as much a product of the social distress created by the pandemic as they were of the tragic death of George Floyd, amounting to a primal wail by people who have had no leader giving them voice and who have been cut off from communities with which to share their frustration, fear, and grief.
As a man who thought broadly and observed the human condition minutely, there is almost no end to the way the COVID-19 crisis might have engaged Smith’s attention and interest. A skeptic of the “man of system” who pretends to knowledge he can never possess, he likely would be appalled at the idea of economic “lockdowns” that inhibit and even prohibit the human instinct to “truck, barter, and exchange,” recognizing that perfect laws tend to go beyond what human beings can bear. He might doubt the idea that the central government could, via subsidy, accelerate the scientific method in the production of drugs and vaccines or directly manage a national test-and-trace program, pointing to the problem of contingency—the unknown unknowns—that surround us. He likely would call for a careful weighing of the trade-offs in public health and economic policy, recognizing that “prudence” lies as often in taking necessary risks as it does in avoiding unnecessary ones.
But mostly, Adam Smith might be content. He would be pleased to see how well his theory and insight into human nature have helped to create the prosperity of our age and explain the trials and tribulations through which modern humanity is passing. And he would have some hope that the irresistible forces of human nature that draw us together might eventually overcome the immovable object of our viral contagion.