During the Carter administration, a peace demonstrator at the White House carried a sign which read, “Nothing Is Worth Dying For.”
Unlike most signs carried at protests and demonstrations, that one drew a great deal of attention. Someone pointed out that if nothing is worth dying for, then neither is anything worth living for. I would guess that the young man who carried that sign hadn’t thought his slogan through that far. People who are caught up in movements often don’t.
Being a history buff, I’ve long been aware of the White Rose, a group of idealistic German students who opposed the Nazi regime. Hans and Sophie Scholl are the best-known of the many members of the group who paid for their courage with their lives. The Scholl siblings were guillotined for passing out anti-Hitler leaflets at the Ludwig Maximillian University in Munich.
The leaflets were slapdash, typewritten, and mimeographed affairs, and it’s easy to see them as naive and futile gestures. It’s hard to see what practical effect they could possibly have had. But practicality was beside the point. They said things that needed to be said:
Isn’t it true that every honest German is ashamed of his government these days? Who among us has any conception of the dimensions of shame that will befall us and our children when one day the veil has fallen from our eyes and the most horrible of crimes—crimes that infinitely outdistance every human measure—reach the light of day?
and
Since the conquest of Poland, 300,000 Jews have been murdered in this country in the most bestial way … The German people slumber on in dull, stupid sleep and encourage the fascist criminals. Each wants to be exonerated of guilt, each one continues on his way with the most placid, calm conscience. But he cannot be exonerated; he is guilty, guilty, guilty!
The White Rose bore witness. Like the “Tank Man” of Tiananmen Square, its members stood in the way of totalitarian terror and shouted, “Stop!” Many of its members paid with their lives. They considered what they had to say worth dying for. And bearing witness against the Nazi nightmare gave their lives meaning, as well as their deaths. Few of us will lead lives as worth the living as Hans and Sophie Scholl.
Just today, I became aware of another youthful resistance group in Nazi Germany with a floral name. It was far more practically oriented and far larger. Many of its members, too, paid for their defiance of the regime with their lives. Its members, too, said “no!” to coercion and terror. But without denigrating the individual sacrifices of the Edelweißpiraten (“Edelweiss Pirates”), their agenda wasn’t quite as lofty.
The Edelweißpiraten weren’t protesting the Holocaust or the other crimes of the German government. They simply were opposed to compulsion in principle. They didn’t like being told what to do. Again, without diminishing the courage of its individual members, some of whom were just as nobly motivated as the members of the White Rose, the program of the Edelweiss Pirates as a group boiled down to words which needn’t be chiseled into granite on any monument: “You can’t make me!” Some had no particular political or moral agenda at all. They simply didn’t want to be told what to do.
Sometimes a thin line can separate principle and childishness. None of us likes to be told what to do. But the grownups among us not only are willing to be told what to do in certain areas but insist on it. Any thoughtful adult realizes that rules are necessary for any group to function in a peaceful and constructive way and that without laws that restrict individual liberty, civilization itself would be impossible.
“You can’t make me!” might almost be America’s national slogan. ” Liberty!” was the battle-cry of the American Revolution, and when Baron von Steuben came here from Prussia to train George Washington’s army, he nearly despaired. How can an effective army ever be built, he wondered, when the soldiers who comprised it refused to follow an order unless the reason for it was explained first, and they agreed with it?
But follow orders they did- and disobedience was duly punished. Although the first Continental soldier to be condemned for cowardice and desertion, Ebeneezer Leffingwell, received an eleventh-hour pardon from Washington because of his “previous good character,” the general warned that those who emulated Leffingwell in the future would be shot. And they were.
Washington did not hesitate to order the compulsory vaccination of his soldiers against smallpox, a precedent that seems to be lost on a great many contemporary Americans, including certain Republican governors. And the Supreme Court has consistently ruled that compulsory lockdowns and quarantines as public health measures lie well within the constitutional authority of states under the Tenth Amendment. In fact, the principle is so well established in American law- and has been, since the earliest days of the Republic- that it’s difficult to take the odd claim that quarantines and lockdowns and vaccine mandates violate individual rights seriously. Such objections are really more on the order of a childish, petulant “You can’t make me!”
The idea that there is somehow a constitutional right to endanger the health of others- and thus their rights- by refusing both vaccination and reasonable restrictions on their movements and activities if they decline to be vaccinated would be a hard one to defend from the writings of the Founders or the history of American constitutional law. Far from being somehow a violation of the principles of liberty, “vaccine passports” are not only reasonable, at least in principle, but well established in legal precedent as constitutionally legitimate tools in times of pandemic. In fact, in 1824, John Marshall, the fourth Chief Justice of the United States, made the parenthetical observation in Gibbons vs. Ogden, a case involving maritime rights, that quarantine laws “form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government.” If, for religious or other reasons, an individual declines vaccination, fine. But in such a case it falls well within the authority of the state to quarantine that person for the sake of the public good, a point which the Supreme Court has acknowledged ever since the days of John Marshall!
Why are we even debating this?
Are mandates and lockdowns and quarantines necessary? Are they prudent? Nobody argues that unnecessary restrictions on the bodily autonomy or movements of American citizens are legitimate or desirable. But whether they are necessary or prudent in any specific case is a medical question rather than a legal one, to be answered by epidemiologists rather than by lawyers, judges, and politicians. And despite the ongoing attempt by COVID-minimizers to exaggerate the very small number of medical professionals who dissent from it, and often their credentials, the consensus of the medical experts is firmly on the side of their use, at least in general principle, and has been ever since the pandemic began.
Granted, it’s inevitable that a society that places as much emphasis on individual liberty as ours, there should be a perennial debate about its limits. Tom Paine railed against taxation, for example. Even Chief Justice Marshall wrote that “The power to tax is the power to destroy.” But the courts have consistently upheld the power of taxation, despite the healthy suspicion of its use by conservatives ever since the foundation of the Republic. The reason is obvious. George Washington put it well: “It is essential that you should practically bear in mind that towards the payment of debts there must be revenue; that to have revenue there must be taxes; that no taxes can be devised which are not more or less inconvenient and unpleasant.” James Madison, the author of the Constitution, wrote, “The power of taxing people and their property is essential to the very existence of government.”
But perhaps the most relevant quotation of all comes from Benjamin Franklin: “Friends and neighbors complain that taxes are indeed very heavy, and if those laid on by the government were the only ones we had to pay, we might the more easily discharge them; but we have many others, and much more grievous to some of us. We are taxed twice as much by our idleness, three times as much by our pride, and four times as much by our folly.”
One of the “taxes” we have paid in this pandemic has been laid upon us by folly, levied through our slowness to embrace and implement sensible and reasonable public health measures in the face of what is now the deadliest pandemic in the nation’s history. We have paid it in the lives of friends, neighbors, and relatives, at the present moment about 837,000 of them. The number of deaths we suffered in the Civil War is not precisely documented, but it seems to have been somewhere around 750,000. During this pandemic, America has matched and exceeded the butcher’s bill for the deadliest war we’ve ever fought, and in half the time. Yet amazingly, there are those who continue to minimize the pandemic and resist common-sense measures whose constitutionality is established beyond any reasonable doubt on the ground that they violate “individual liberty!”
There is a difference between a prudent suspicion of heavy-handed government (and there can be no doubt that in some cases the government has been heavy-handed in its handling of this pandemic) and what the British call “bloody-mindedness.” There is a difference between a proper concern for the preservation of our legitimate rights and the selfish, unreasonable assertion of the “right” to compromise the rights of others.
Those who strive to preserve individual freedom against arbitrary and unnecessary government restrictions are worthy of praise. But it seems to me that modern libertarianism- and conservatism generally- more and more frequently mistake principled resistance to tyranny with a petulant, childish whine of “You can’t make me!.” Sometimes, as was the case with the White Rose and the Edelweiss Pirates, people and movements find themselves fighting the good fight side by side. But that doesn’t mean that their motivations are identical, equally thoughtful, or equally valid. To be an extremist and a selfish jerk is not the same thing as being a freedom fighter!
A liberal society (in the broad, Enlightenment sense of the term “liberal”) seeks to strike the optimum balance between protecting individual rights from being violated by an overbearing government, and from being violated by other individuals. Achieving that balance requires a clear understanding that, as someone once said, “You have every right in the world to swing your fist- but only until it comes into contact with my nose.”
And to refuse to be vaccinated without taking measures to avoid exposing others to a virus one may be carrying without even knowing it is to make firm contact with the nose of others. Not only is it to risk being a personal vector of infection, but it also means keeping us further from reaching herd immunity and giving the virus further opportunity to spread and evolve. True, the Omicron variant seems to be less deadly than previous iterations of the virus, but it’s also far more contagious and seems to have made some progress toward making our vaccines less effective.
Contrary to what many of us seem to think, “I don’t wanna, and you can’t make me” isn’t really the same thing as “Give me liberty or give me death!” License and liberty are entirely different animals. Speaking theologically, human government is fallen, potentially dangerous, and worthy of suspicion not because it’s government, but because it’s human.
But individuals are also potentially dangerous, and also worthy of suspicion because they, too, are human, and therefore fallen. My political faith tells me that the Constitution has invested in the individual the authority to serve as a check on the fallen, human government. But my religious faith, on the basis of Romans 13, tells me that in His wisdom God has instituted the government as a check on the fallen, human, individual.
To lose the proper balance between the two is to risk either tyranny on one hand, or anarchy on the other. And human rights evaporate just as quickly under the one as under the other.
ADDENDUM: The Supreme Court has struck down President Biden’s requirement that employees of large businesses either be vaccinated or undergo weekly testing by a vote of 6-3. It did uphold the mandate for healthcare workers by a worrisome margin of only 5-4.
Given the conservative supermajority on the Supreme Court, I’m not surprised. But I guess it just goes to show that conservative justices are just as liable as liberal ones to allow controversial political debates to cloud their reading of the Constitution.
ADDENDUM II: Or not. The Court did uphold the mandate for healthcare workers, and the Tenth Amendment argument is predicated on the authority to quarantine and to utilize other restrictive measures in times of pandemic being vested in the states and not in the Federal government.
A very strong case can be made that the United States led the world in COVID deaths during too long a period (a nation with four percent of the world’s population- the most scientifically advanced nation in the world- for quite a while had 20% of the world’s COVID deaths) because while every other industrialized democracy on Earth was undertaking a coordinated nationwide effort to control the pandemic, we had a president who claimed that the virus was no worse than the flu, would mysteriously vanish overnight, and to the extent that it was worth addressing at all was an issue for the states alone. In the process, Mr. Trump ignored the obvious Federal role in coordinating the efforts of the individual states, even to the point of mismanaging the allocation of equipment and supplies under Federal control, arguing that it wasn’t the Federal government’s problem. The degree to which a worldwide (and therefore nationwide) pandemic demands a greater role for the Federal government is a matter worth debating, even to the point of asking whether the Federal government’s mandate in the Preamble to the Constitution to “promote the general welfare” might not in extraordinary circumstances modify the Tenth Amendment’s reservation of such powers to the states. But thinking the matter through, I have to admit that the Court’s ruling in the matter of the Biden mandate for the employees of large companies is in accord with precedent after all.
I would argue that the mandate itself was a matter of common sense. But a strong case can be made that under the Tenth Amendment, it’s something the states rather than the Federal government should address.
Again, we face the troublesome difficulty presented by our living in a smaller world in the Twenty-First Century than the one in which the Constitution was written, in which commerce is global and the automobile and the jet plane have replaced the horse and carriage and the wind-powered ship. Worldwide pandemics weren’t the threat in 1789 that they are today; even viruses had a harder time traveling back then. What once were national problems are now global ones, and what were once local and state problems now have national and even worldwide implications. As an adherent of Antonin Scalia’s “dead Constitution” philosophy, which sees the Court’s role as interpreting the words of the Constitution as written rather than adapting them to a changing world, I actually have a certain amount of theoretical sympathy for what apparently was the Court’s reasoning.
Maybe amendment is the answer. Maybe the Federal government needs explicit constitutional authority to deal with matters which in the modern world are as national as they are local, if not more so. But I have to think that the extraordinary situation posed by COVID justifies the view that “promoting the general welfare” in a nationwide epidemiological crisis implies Federal authority under the Constitution to act even in a realm that historically has been seen as the purview of the states.
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