search
top

Quarantine Power

This is a bit off topic, but news is slow on the gun front today. I ran out of energy for arguing over what libertarianism is and isn’t in my late 30s, but for the sake of a conversation starter, I thought I ask the question of whether a mandatory quarantine is compatible with libertarian principles, however you want to define them.

I suppose some would argue that a quarantine violates the non-aggression principle. Others would probably argue that spreading a disease to someone is initiation of force, and so the state is justified in preventing it. But really, there’s only a risk if you go out in public that you’ll spread a disease. What level of risk constitutes aggression?

These days I’ve learned to like Prof. Randy Barnett’s argument that having a theory of the state police power is important. Under that idea, quarantine would typically fall under a traditional police power the states have held. However, since the federal government lacks a police power, it’s only quarantine powers would be related to international travel, and interstate movements. Some would argue, I believe convincingly, that if you’re a dedicated originalist, the federal government probably has no quarantine power at all, since the Constitution only gives Congress the power to control naturalization of persons, and not their movement.

Discuss.

27 Responses to “Quarantine Power”

  1. Peter O says:

    SayUncle asked pretty much the same thing a week ago, and even though the wookie pelts were long and well groomed, pretty much everyone agreed that Quarantine was a legit government power.
    http://www.saysuncle.com/2014/10/17/my-wookiee-suit-is-strong-but/
    Some disagreement about the manners and legal controlling authority (i.e. court order vs public health official ) but not over the Idea.

    • TS says:

      Yes, most libertarians seem to agree that quarantine of a person infected with an infectious deadly disease is acceptable government power, but what about quarantine of a person suspected to be infected with an infectious deadly disease? That gets tricky for me.

  2. Jake says:

    Some more discussion here, from a more anarchist libertarian view. Basically boils down to “it’s a head-scratcher” even there.

  3. Dave says:

    Folks with no skin in the game often think it is perfectly ok to take some action that only affects “the other guy”. But as the latest ebola scare shows, you don’t have to misbehave to be victimized.

    Fortunately, the administration’s position that a travel ban on the source countries where ebola is running rampant kind of undercuts the local, state and national arguments for a quarantine at pretty much any level. Not that they won’t do it, just that the justification is basically now zero.

    is it compatible with “libertarian ideals”? The idea is compatible with any ideal so long as it only applies to the other guy.

  4. Grego says:

    I guess I would say it is provided the following conditions are met
    1. Run competently based on sound science/best current understanding
    2. is the most minimally intrusive option from a liberty standpoint.
    3. is not structured / used for political gain / power gain over others

    Now given that the odds of even getting #1 are similar to the odds of the ATF approving new full auto firearms without congressional/court intervention, I would say that in theory, it is compatible, in practice as it will probably be executed, likely not.

    • HSR47 says:

      As a point of order, the BATFE DID approve a stream of new MG registrations as late as this fall.

      Still, they handled it by basically saying “Whoopsies!” once it became public knowledge.

      • Renegade_Azzy says:

        They approved one, as far as I could find.

        • HSR47 says:

          I saw one approved eform, which I found to be entirely credible given the circumstances. I’ve heard that others got them too, and I don’t doubt it.

          Still, my single form came back denied, as did the forms submitted by two of my co-workers.

  5. aerodawg says:

    If I go driving around blind drunk, there’s only a risk I’ll hurt/kill someone there too, but I think the gov’t is legit in stopping that. Same thing with mandatory quarantine.

    • HSR47 says:

      I’m not sure I agree with that equivocation.

      There’s a difference between driving drunk through times square at noon, and driving drunk through the middle of nowhere in the cornbelt at 3 in the morning.

      One is akin to a suburbanite hanging some targets off his clothesline and then shooting at them whilst using his neighbor’s front lawn as a backstop, and the other is like someone going out into the middle of nowhere on federal lands and blasting away at targets positioned in front of a suitable backstop.

      In the case of drunk driving, in my opinion we lose something, namely our fourth amendment rights (to start) by painting so broadly when it comes to drunk driving.

      Disclaimer: When I was 17, my car was totaled in a collision with a drunk driver–A drunk driver who then proceeded to flee the scene. My choice to never drive while intoxicated largely stems from this incident. As a result, I think it’s important to note that I’m arguing against the outright prohibition of an activity I do not ever intend to engage in.

      Also, to be ENTIRELY clear, my point is, largely, that while I believe that government (at some level) has the right to act to protect the public from active threats to their lives and liberties, I believe that their actions should be proportional to the threat. Frankly, I do not believe that a handful of drunks driving on nearly empty roads in the middle of the night are enough of a threat to effectively suspend the fourth amendment for anyone driving down those same roads.

  6. Felix says:

    Quarantining an infectious carrier is just another way of dealing with a threat. The old saying goes that my right to swing my fist ends at your nose, but I would argue it ends somewhat before that, at the point where I have time to react to the threat. My right to get involved in fighting your house fire starts before the fire jumps to my roof; and similarly, your right to travel while infectious can be limited as a threat. This has nothing to do with government.

  7. Sigivald says:

    Nozick talks about this in Anarchy, State, Utopia (in the context of why requiring insurance for driving a car around other people is OK); when there’s a risk to others that you can’t cover personally because of its magnitude, they’re well within rights to either stop you from endangering them, or forcing you to acquire coverage for the harm.

    Fatal infectious disease is awfully hard to insure against, unlike mere property damage and mostly-not-fatal injury.

    I don’t see a libertarian issue with quarantines as such, in such a case.

  8. Jim says:

    Don’t give this administration any ideas, okay? They read this, and they’re likely to spin it as “it’s okay to quarantine libertarians”, and roll with it!

    /sarc

    Jim
    Sunk New Dawn
    Galveston, TX

  9. Miguel says:

    I am not Libertarian, but I have not seen anything in the doctrine that goes against the common good in cases of true emergency. I figure that libertarians will understand the problem with the spread of a disease and do their best personally to avoid contaminating others. So the first thing would be self-restrain.

  10. Archer says:

    I’ll expand on aerodawg’s point about driving blind drunk: There’s only a chance someone could be hurt/killed, but the government is allowed to respond to the threat.

    With Ebola, there’s only a chance (non-zero, however small) of infection, and only a chance (however large or likely) that infection will cause death. However, risk management dictates that a responsible and community-conscious person would self-quarantine until the danger passes; the likelihood of transmission is relatively low, but the severity of the consequences is too high to risk.

    The alternative – that a potentially-infected person chooses to instead go out among the community – triggers the community to “defend itself” from the individual’s carelessness (at best) or willful disregard (at worst). If that requires a police response and an involuntary quarantine, I think that would be a justified exception to the non-aggression principle; willful disregard especially is, in itself, a form of aggression on behalf of the sick individual.

  11. NotClauswitz says:

    You can be lying dead from Ebola with your fluids dripping all over the couch and carpet, and still pose a considerable infectious threat. If the problem is widespread, the Cleaning Lady who comes in to clean-up (or some punk who breaks-in to steal and rob) may not know what they’re getting into.
    Afterwards who really wants to live in *that* particular NYC apartment (really, how well was it actually cleaned?) – even if its below-market in that hideous rent-controlled regulatory environment. Several neighbors of the Dr. Without Borders Guy up and moved out, when they found out. Quarantine or Ostracism?

  12. rd says:

    If our national government exercised reasonable control over international borders and travel, this conversation would be moot.

    Quarantine for 21 days of any travelers that have been in Sierra Leone, Liberia and Guinea would bring the risk of an Ebola infection in the US down to about what it was last year at this time, ZERO.

  13. Alpheus says:

    I’m curious as to what Medieval Iceland might have done to quarantine people, or even if there was any concept of quarantine at the time. I’m also curious to what they did for the mentally ill. Medieval Iceland is an interesting example, because they actually had something close to anarcho-capitalism.

    I haven’t had the chance to research, though, and I’m prepared for the possibility that I might not like the answer.

    It’s kindof difficult to know what a “free-market” answer might be, if only because it’s impossible to imagine all the possibilities that might be tried.

    Having said that, I’m not always confident that the State can provide the best solution, either. At the link provided by Jake, someone described how their father was 12 at the time of the 1918 plague, and he remembered quarantine stickers, “pest houses”, and carts to pick up the sick and dead. Earlier this week, I remember reading an article that explained how President Wilson’s determination to go to war, and refusal to acknowledge the flu as a risk, caused the flu to spread to 40 million people via military camps.

    Even today, an Ebola outbreak in America may ultimately be caused by government incompetence (at least in part). (This isn’t to say that anarcho-capitalists would be guaranteed to have a solution; it’s good to remember, however, that sometimes the State doesn’t get things right, either…)

    I would suggest the possibility of suing someone who made you sick, but that is almost certainly likely fraught with problems, too. The Ebola patient who lied to get to America did so in a desperate attempt to live; while even Glen Reynolds thought the guy should be prosecuted for lying, if you have a deadly disease, and you’re dead if you don’t try something, would there really be any punishment, short of execution, that would prevent you from lying about your condition to get on an airplane? Similarly, how can you be held culpable, and how would a lawsuit stick, if you didn’t fully understand you were sick–or worse yet, were merely doing your best to follow government orders and recommendations (whatever might count as “government” in a libertarian society)?

    Because that’s another issue: sometimes our experts don’t know what they are talking about. The stories coming out about the CDC makes me very concerned that it would be difficult to trust what they might say about any infectious disease, whether it be Ebola or anything else.

    So, yeah, a bit more rambling of an answer than I intended, particularly when it comes down to this: “I don’t know if an anarcho-capitalist society would be able to be effective, although it also isn’t clear that the State’s solutions are effective…”

    And, confound it, I just realized that I didn’t answer the question. Can a libertarian or anarcho-capitalist society justify quarantines? Now that I think about it, the answer might be stupid, like “Of course! Humans are practical animals; if quarantines are necessary for survival, they will do it, and then rationalize their decisions afterwards.”

    • Alpheus says:

      And I just realized that I still got the question wrong: it’s “How might a libertarian justify quarantine?”, although the answer might still be the same (albeit, one that describes the process, rather than the philosophy, of how it might be justified…)

  14. Whetherman says:

    Pragmatically, here is what I worry about too: When accepting a concept (e.g., quarantine to minimize a perceived risk of infection) will be used as a tool to further another, unspoken agenda. (Whoever controls The State will always use whatever tools we grant them to exercise as much control as they can.)

    Suppose the perceived risk of HIV infection were deemed to justify “quarantining” certain “high-risk” classes of people in concentration camps, because it was impractical to screen them one by one as often as some people thought necessary to be sure they remained uninfected?

    How do we ensure that the tools of The State that we approve of as reasonable, will only be applied while The State is controlled by reasonable people?

    • HSR47 says:

      Frankly, I tend to agree with you: While many of the powers that we have granted to government are legitimate at least in basic principle, it seems to me that enough of the checks and balances intended to curtail the oppressive nature of government have utterly failed us.

      Harrison Bergeron may have been meant to show us that Government cannot entirely squash the human spirit, but I think a more fitting interpretation is to view the people in that story (harrison included) as the government, and the government as the people: No matter how much we chain the government, it will always manage to overpower the restraints we place upon it’s power.

  15. RAH says:

    Bubonic plague wiped out a third of Europe’s population. Deadly viruses that are very infectious, Ebola does seem to qualify since those who treat and use protective gear are getting the virus, require quarantine. This is one of the few cases where the needs of the many out weigh the needs of the one.
    We are more humane then what humans did in the past with plague ships where we refused entry and let them all die.
    We are letting in carriers back in the country, but require them to be quarantine for 21 days is not that much of hardship.
    Dr Spencer was reckless and showed a great disregard to fellow New Yorkers.

  16. Don McGaffey says:

    My oldest brother was quarantined, with one caretaker, when he was diagnosed with scarlet Fever. Neighbors of mine (1960s) were quarantined at a treatment center when they were diagnosed with Tuberculosis, before a reliable treatment was developed. Our nation, and most others, quarantined Lepers, before a reliable treatment was devised. In each case, symptoms were indicative of disease before quarantine.
    On the other hand, our nation moved Japanese-american citizens into internment camps when it was learned some families were contributing to Japanese aid societies. The Supreme Court, on review, said it was a military order, not subject to their review.
    It seems clear that an actual threat calls for a quarantine. It seems clear also that a “perceived” threat can be used by the government to take actions which most people consider a violation of citizen rights.
    In the present circumstance I am concerned that a risk is being taken as if an active disease, and quarantine is being called for without sufficient cause. The New York doctor who was recently diagnosed with Ebola self monitored, and took immediate action to request quarantine level treatment at the first sign of active disease. Risk to those in contact prior to his symptoms developing, as far as we know, is nil.
    The active problem right now is that we know far less than we would want to decide questions of relative risk, and a deadly disease brings fear based responses.
    When you learn of the medieval response to The Plague and Black Death, please let us know.

  17. dustydog says:

    The problem with libertarianism is that non-aggression is for losers. Winners don’t have to beg for mercy, or appeal to the self-discipline and integrity of their victims. QED.

    • HSR47 says:

      Non-aggression =/= pacifism. More specifically, there is a moral difference between aggression and self-defense.

      The Barbary wars are a perfect example of this on the international stage: War fought in self-defense.

      The non-aggression principle can be summed up as not wanting to start fights, while at the same time being ready, willing, and able to finish them.

top