Should Jacobson v. Massachusetts be reconsidered in light of new government mandates about COVID?
It has become a common refrain in legal opinions that young people are reckless, impulsive, and prone to “heedless risk-taking.” This fact, which “any parent knows,” has been deployed to invalidate death sentences and long prison terms imposed on juvenile murderers, the logic being that even the most heinous crime, when committed by the young, does not necessarily indicate incorrigible depravity. The age at which we mature, and become fully accountable, is drifting higher and higher. The Scottish Sentencing Council has proposed that anyone under that age of 25 not be incarcerated.
Lately, this critique of youth has been invoked to explain and condemn young people’s flouting of social distancing norms. Disregarding adults and health experts, they are recklessly gathering again, not only in political protests, but on beaches and at parties. As a parent of three children, including two teenagers, I can attest that the lockdown is losing whatever grip it once held on our youth. It is a worldwide phenomenon and raises concerns, it is said, about a possible second wave of covid-19 cases. Although “excess deaths associated with COVID-19” in the United States have plummeted since April 11, this trend may reverse as restrictions on commerce are lifted and hospitals become overburdened.
In a New York Times op-ed Lawrence Steinberg, a much-acclaimed author on adolescence (broadly defined to extend into one’s 20s), makes “pessimistic predictions” about college student behavior in the fall. Ominously entitled, “Expecting Students to Play It Safe If Colleges Reopen Is a Fantasy,” the operative word being “if,” the article exudes doubts about the feasibility and prudence of re-opening universities. At times invoking the august authority of Aristotle, Steinberg has judged the young “less able to control themselves and more prone to risk-taking than adults.” They will not wear masks and socially distance, and he concludes his op-ed by saying that he for one is opting out: “I will ask to teach remotely for the time being.”
Tolerance for risk declines as we age, but it should be acknowledged that adults in the past were complacent about hazards that would inspire terror today. Consider the acceptance and even celebration of the dangers that accompanied the brisk construction of the Empire State Building. Completed in May 1931 in just over one year, the venture cost the lives of about 10 men. This lethality could have been abated with safety precautions, but no one at the time thought them necessary. It was the Great Depression, and the 3,000 jobs created by the project were eagerly vied for. New Yorkers cheered the steelworkers and riveters as “sky boys,” who dangled hundreds of feet above the ground. According to the New York Times, they “put on the best open-air show in town. They rode into the air on top of a steel beam that they maneuvered into place as a crosspiece by hanging to the cable rope and steering the beam with their feet, then strolling on the thin edge of nothingness.” Wrote London’s Daily Mail: “They were right there, in the flesh, outwardly prosaic, incredibly nonchalant, crawling, climbing, walking, swinging, swooping on gigantic steel frames.”
Working conditions are much safer now. No one died during the less dramatic construction of the World Trade Centers in 1970, thanks not only to technological improvements, but also to the country’s greater wealth, which allowed builders to devote substantial resources to worker safety. There are still jobs filled with perils, but those workers, unlike professors, are not generally afforded space in the op-ed section of the New York Times to ventilate their concerns. In a recent year, for example, nearly 100 roofers died on the job. On an actuarial basis, logging and commercial fishing are even more dangerous occupations.
Those of us—academics, lawyers, journalists, etc.—fortunate to enjoy safer lives have become ever more obsessive about remaining dangers. Alexis de Tocqueville famously observed that as conditions become more equal the remaining inequalities are even more irksome. One could say the same about the acceptance of risk. With ever fewer threats, those that linger arouse mounting anxiety, and we then project this unease on our children, whom we bubble-wrapped long before the recent pandemic. Heather Mac Donald describes a pre-covid scene that triggers a flash of uncomfortable recognition for many readers:
A young child, maybe 40 inches tall, would be slowly wheeled along on a tiny tricycle scooter by his father, the father’s hand resting protectively on the boy’s shoulders. This three-wheeled toy is eminently stable, yet the boy would invariably be wearing a massive helmet, lest somehow he keel over and hit the ground. Given the boy’s lack of both height and momentum, such an unlikely fall would not even produce a bruise, yet every possible precaution had been taken to protect him from calamity.
As a parent, I recognize and sympathize with the impulse reflected here but am nonetheless conflicted. Of course, I want to protect my children, and then exhort them to act responsibly and live to a doughty old age. And yet, does a parent really want his children to be unceasingly cautious? Being scared of one’s own shadow (a time-honored insult that seems to have gone out of fashion), is not an attractive quality at any age, and certainly not in a young person. Kipling’s famous hope for his “son”—that he be prepared to “make one heap of all [his] winnings/ And risk it on one turn of pitch-and-toss”—still rings true today. Tax-exempt bonds and guaranteed income funds are appropriate for old people, but a community depends on daring in its youth. This lust for adventure and even danger should, in a measured way, be cherished and nurtured. As Jordan Peterson teaches (Rule # 11), do not bother children when they are skateboarding.
Aristotle and the Mean
Which brings me back to Aristotle. Steinberg and others wrap their critiques of the young in the illustrious garb of the great authors of the past. (Shakespeare also gets worked over—implausibly—in this regard.) True, in The Art of Rhetoric Aristotle depicts the young as driven by sensual pleasure and “carried away by impulse.” But his treatment of the character of youth is paired with a discussion of “old age.” And Aristotle’s sympathies are unmistakably with the young. They are “generous” and “fond of their friends”; the old are “querulous, and neither witty nor fond of laughter.” The young “prefer the noble to the useful”; in the old, there is “more calculation than moral virtue.” Even in their attitudes towards risk, Aristotle is pro-youth. They are “courageous, because they are full of passion and hope.” Youth provide the energy and even reckless abandon that give rise to and then sustain civilizations. By contrast:
Old age paves the way for cowardice, for fear is a kind of chill. And they are fond of life, especially in their last days. . . And they live not for the noble, but for the useful, more than they ought, because they are selfish.
Aristotle’s stated purpose in this paired discussion of the vices of the young and the old is to direct his reader to the virtues of those in the “prime of life.” Aristotle suggests that the old are overly obsessed with safety and the young are overly inclined to risk-taking, so the wishes of neither the old nor the young should be given priority. An honest confrontation with Aristotle would generate the following question: is America’s strategy in dealing with covid-19 prudent and mature, promoting the common good, or geriatric and cowardly, serving the interests of America’s unhealthy gerontocracy? The latter possibility seems to be the sentiment of many teenagers—who, like roofers, are seldom given the opportunity to express their opinions in the New York Times (unless the subject is climate change).
A peculiar aspect of our nation’s lockdowns and mandatory safety precautions is that they have been imposed on everyone, irrespective of age. To make this plausible, the media scours the nation for evidence of young people taking ill from covid-19, and of course in a nation as large as ours, there will be unfortunate cases. But the dominant reality as it is experienced by young people today is that covid-19 is, as one teenager told me, “an old person’s disease.” To judge from my own children and their friends, most teenagers have been socializing with others of their age cohort, sans masks and social distancing, and none has taken ill. Many more young people are said to be “contracting” coronavirus in recent weeks, but this is likely a function of more widely conducted testing.
Consider the report that 100 students at the University of Washington’s fraternity row tested positive for covid-19. A local “health officer” pronounced this “very concerning” and muttered about the “risks” of bringing students back in person. Yet in what would seem to be a classic case of burying the lede, the article only faintly alludes to the fact that none of the undergraduates was hospitalized; indeed, it is unclear whether most experienced any symptoms whatsoever.
To be sure, the recent death of a Penn State undergraduate, reportedly from covid-19, is distressing, as are accounts of a few undergraduates taking ill after fraternity parties in the South. But the risk from covid-19 needs to be situated in the panoply of risks young people confront. Even before the lockdown, we are in the midst of what has been called a “youth suicide epidemic,” with suicide now the second leading cause of death in college-age Americans. How clamping down on in-person interactions, which will only enhance the power of social media platforms like Instagram and TikTok, can be expected to improve the situation is seldom addressed by public health experts. Nor do all the statistics compiled by the CDC ever tabulate the number of “young people’s lives that have been stifled or destroyed” to satisfy our gerontocrats’ desire to protect life, whatever the costs.
It is certainly fair for older professors to request an accommodation, such as online teaching, in recognition of their vulnerabilities. For some professors, this is the prudent course. But it is also fair to recognize—and accommodate—the intense desire of young people to socialize with their friends and to participate in communal activities. Precisely where to strike a balance between these two perspectives is hard to say, but a first step in in arriving at a prudent and mature approach to the risks universities face would be to be wary of septuagenarians peddling their expertise on adolescence.