why protect civil liberties in a pandemic?

With the encouragement of the Journal of Public Health Policy and Springer Nature, I’m posting a pre-print of a forthcoming JPHP article entitled “Why Protect Civil Liberties during a Pandemic?

The abstract:

During a public health emergency, a government must balance public welfare, equity, individual rights, and democratic processes and norms. These goods may conflict. Although science has a role in informing wise policy, no empirical evidence or algorithm can determine how to balance competing goods under conditions of uncertainty. Especially in a crisis, it is crucial to have a broad and free conversation about public policy. Many countries are moving in the opposite direction. Sixty-one percent of governments have imposed at least some problematic restrictions on individual rights or democratic processes during the COVID-19 pandemic, and 17 have made substantial negative changes. The policies of Poland and Hungary reflect these global trends and continue these countries’ recent histories of democratic erosion. The expertise of public health should be deployed in defense of civil liberties.

I’ll also quote a passage here:

Imagine a government that is legitimate (having an unquestioned right to make laws and regulations within its territory) and benignly motivated. A pandemic such as COVID-19 will force this government to make difficult decisions. It should strive to maximize public welfare, which can be measured on the dimensions of health, economic prosperity, security, and environmental sustainability, among others. The government should strive for equity, meaning that the costs and harms (as well as any benefits) are distributed fairly. It should attend to individual rights, which can be understood as “trumps” that people may play against policies that benefit the general welfare [2]. For example, an individual may claim a right to move freely when subjected to a quarantine; that claim presents a tradeoff that the government must resolve. Finally, the government should protect political processes and norms, such as a free and vibrant debate and fair elections.

These goods may conflict. Closing businesses has health benefits but also economic costs and may restrain individual economic rights. Allowing a mass protest enhances democratic debate but can allow a virus to spread. The relevant goods are incommensurable—not measurable on a single scale. And governments must weigh and balance them under conditions of uncertainty, not knowing for sure whether closing businesses will help control the epidemic or whether allowing a protest will spread the infection.

Now imagine that a government is neither legitimate nor benign. Perhaps a dictator has seized power in a coup. He, too, will face difficult choices during a pandemic, but there is no reason to expect him to weigh the costs and goods in an impartial fashion. More likely, he will see the pandemic as an opportunity to consolidate power, eliminate threats, and profit economically. …

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About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University's Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.