by Neil H. Buchanan
In March 2020, Texas's troll-cum-Lieutenant Governor Dan Patrick made news by saying that old people should be willing to die so that their kids and grandkids would not suffer a loss of income. Am I trying to score cheap points by exaggerating or distorting what he said? I might be putting it less politely, but that was most definitely his point. Appearing on one of the evening Fox News dumpster fires, Patrick said:
No one reached out to me and said, "As a senior citizen, are you willing to take a chance on your survival in exchange for keeping the America that all America loves for your children and grandchildren?" [But if] that is the exchange, I’m all in. ... I just think there are lots of grandparents out there in this country, like me, I have six grandchildren, that what we all care about and what we love more than anything are those children. ... So my message is let’s get back to work, let’s get back to living. Let’s be smart about it and those of us who are 70-plus, we’ll take care of ourselves. But don’t sacrifice the country, don’t do that, don’t ruin this great America."
In my Dorf on Law column last Friday, I mocked Patrick's statement, which actually ran much longer than the quotation above but never said anything more than "economy good, death happens, oh well." This was relevant because I was discussing the question of whether COVID presents a crisis that is intergenerational in the same sense that the climate disaster and the death of democracy are intergenerational.
I concluded that COVID is not an intergenerational crisis, even though it is very much a crisis on its own terms. Today, I am going to give the Patrick point of view, or a non-cartoonish version of it, a fuller hearing, because although the point as he made it is horrifying, there is at least a plausible question about whether the differences in the coronavirus's threat to different age groups should cause us to think about this crisis in a different way.
My bottom line: Patrick is (still) a sociopath, and even though there are generational differences in COVID's affects on people's lives, this is still not an intergenerational crisis. Side point: Even if COVID were an intergenerational crisis, that would not change how we should think about intergenerational crises.
Intrigued? Or perhaps confused? I sympathize.
Not that my scholarly work is every truly apolitical, but I do occasionally find respite in writing about policy and political issues from a more removed point of view. Yes, it can be interesting -- in the way that being in a car sliding across multiple lanes of an icy highway is interesting -- to learn that the previous president's lawyer cited something I co-authored in his bizarre recipe for an attempted coup, or to be taking calls from reporters while the Republicans are contriving yet another debt ceiling stare-down that could destroy the global economy. But one's reserve tank of adrenaline does ultimately run dry.
This week provided such a respite. As I wrote last Friday, I am picking up again on my long-brewing research project in which I explore what it means to say that "we owe it to future generations" to change what we are doing. Who could be against sacrificing for the kids and the grandkids, after all? It turns out, however, that this is a sprawling question with few obvious limiting principles, such that the answer to the foundational question of this line of work (which also is the title of the book that I am writing) -- What do we owe future generations? -- could well end up being: "We owe them better decisions in all policy areas." No book, or even series of books, should purport to be a Theory of Everything. How to cut this project down to size?
As part of my role as the Director of Global Scholarly Initiatives at the University of Florida's law school, I spend large parts of my time abroad, engaging with scholars in various disciplines to discuss important theoretical, legal, and policy issues. After having been grounded by the pandemic for 2020-21, I am currently based in Cambridge (the older one), from which I can make trips to other non-US law schools to meet with scholars and students at universities in this area of the world. This week, that part of my job description involved lecturing at the University of Antwerp (Belgium) and at Tilburg University (the Netherlands). My brief stay in the Low Countries was delightful, and it also achieved one of its desired goals, which was to give me an opportunity to learn from other professors who agreed to comment on my work.
Today, I want to discuss an interesting question that scholars at both of my stops asked me (with, as far as I know, no communication or coordination between them). As I noted above, it turns out that there is an interesting and defensible variation on Lt. Gov. Patrick's call for old people to walk out onto the tundra and die (although, to be clear, they do so while pushing the nation's health care system to the breaking point).
My column last Friday was not a standalone piece. I wrote it after publishing a Verdict column in which I might have seemed to argue that COVID is not a crisis at all. I thus tried to clarify that while COVID is certainly a crisis, it is not an intergenerational crisis in any meaningful sense. After fielding questions from my Belgian and Dutch colleagues, I now find it useful to add what might seem a confoundingly self-contradictory clarification: A crisis can have different effects on different generations without being an intergenerational crisis. But is that not the opposite of a tautology, that is, false by definition?
This is where the non-embarrassing version of Patrick's argument comes in. My interlocutors earlier this week both pointed out, correctly, that even the Delta variant continues to have notably different effects on older people than younger people. Meanwhile, not only are young adults having their economic lives put on hold (at best), but children are being harmed by not being able to go to "normal" school -- or, in some cases, to go to school at all -- and there is good reason to worry that the pandemic will harm them in ways that are profound and long-lasting. They are (thankfully) not dying in nearly the numbers that older people are dying from COVID, but they are being harmed deeply.
There are some very strong responses to that line of thinking that have already been hashed out reasonably well in public debates. Most importantly, old people and young people are not existing in separate universes, and if old people are dying or staying home because of the fear of death -- even Patrick says that "those of us who are 70-plus, we’ll take care of ourselves" -- it is not as if the government alone is the reason that the economy would be affected by a pandemic. The sooner the public health crisis in under control, the better for everyone -- young and old.
Even so, what if we take this idea seriously? What if there were an undeniable case to be made that there is an irreducible conflict between the old and the young, where helping one group unquestionably hurts the other during the COVID crisis?
As I noted above, my practical motive for arguing that not everything can be an intergenerational question is that, otherwise, asking what we owe future generations is no different from asking what is and is not good policy. One hopes that the introduction of an intergenerational concern should somehow limit or at least change the analysis. Otherwise, why bother?
My key point in last Friday's column was that merely saying that "X has effects into the future" does not transform X into an intergenerational question. It further requires that we would change how we think about an issue when we say, "But wait, what about if we take into account future generations?" I then pointed out that somehow preventing all murders would save many more people in future generations than in current ones (because there will be so many more future generations), but even so, no one would reasonably say, "Well, I wasn't going to bother trying to prevent murders until someone pointed out that doing so would be good for our kids and grandkids."
Applying that distinguishing principle -- crises are anything that are catastrophic, while uniquely intergenerational crises are those that would call for a different response when we think about the impact on future generations -- I concluded, as I noted above, that COVID is a crisis that is not an intergenerational crisis. Taking that distinction seriously, my two European questioners pointed out the pandemic's different impacts on the young versus the old, so perhaps COVID is an intergenerational crisis after all.
Having had a day or two to mull this over, I remain unconvinced, for two reasons. Nonetheless, even raising the objection advances the analysis.
First, consider what I described as "a trivial example" in last Friday's column, an example that I contrived as a base case that clearly had no intergenerational component: A local government has to choose between two applications for the use of a public park on the same day at the same time, a birthday party or an anniversary party. There, I allowed that "one could add some elaborate facts to the hypo to turn even this into a decision with impacts across generations," but it seemed clear that because this decision (unlike even the murder example) was a one-and-done, there was nothing intergenerational about the impacts of that decision.
The respectable-Patrick argument, however, calls for a response in which I provide those "elaborate facts," because the objection to which I am responding itself relies on additional facts. Even though the pandemic is happening right now and in some sense affects everyone, it does not affect everyone in the same way. Thus, even though the pandemic's effects do not seem at first blush to be intergenerational, the additional facts that we know about COVID's differing effects on different age groups makes this arguably "about generations."
Additional facts you want? Additional facts you shall receive.
In my park permit example, suppose that the birthday party is for a 95-year-old great-great-grandmother, while the anniversary party is for a couple who married in that very park just the year before -- and they plan to tell everyone at the party that they are expecting their first child. Or that the birthday party is for a seven-year-old middle child who has developed self-esteem issues because of feeling invisible, while the anniversary party is for two old people who are both (in the immortal lyrics by Jim Steinman) "praying for the end of time to hurry up and arrive."
If "affects people at different ages differently" is one's standard for an intergenerational analysis, then these hypos now qualify. Some readers might not find that to be as much of a cheat as I do, but at the very least, it means that we have truly moved backward in finding a limiting principle.
The second, more important reason that the COVID-isn't-an-age-blind-killer observation does not, I think, ultimately work in this context is that no crisis -- or policy issue of any kind -- is going to affect every identifiable subgroup of society in the same way. COVID itself affects poorer people more than richer people, and thus the pandemic clearly reflects and exacerbates income inequality. Even so, it is difficult to see what is gained by saying that "COVID is a distributional crisis." It also affects people of color more than Whites, but it is not meaningful to call it a racial crisis.
In both of those cases, my objection is not merely to what clearly seems to be inapt labeling. Again, the impacts of the pandemic on subgroups can differ without changing the urgency of fighting the crisis. I find it distressing indeed to think about how the preexisting crisis of racial discrimination interacts with COVID in especially harsh ways, but thinking about that sad fact does not make me more likely than I already was to want to end the pandemic. It would certainly encourage me to advocate within-crisis mitigation policies that take racial or other differences into account, but it does not make me say, "Oh, now I want to end the pandemic!"
For that matter, my go-to example of murder also has subgroup differences that are similar to those I described above. Rich people and White people are less likely to be murdered. So are the very young and the very old. Does that make murder an inequality crisis, a racial crisis, or (and?) an intergenerational crisis?
Again, to be crystal clear, denying that something is an intergenerational crisis (or an inequality crisis, or a racial crisis) is not at all to say that it is not a crisis. That a problem has subgroup-differing effects calls for policy solutions that might be altered in light of those differences, which is of course appropriate. This is not about what is important but how and why things are important in different ways.
Finally, however, I will offer a fallback position. Imagine that I were to agree that COVID's differing generational impacts qualify it as an intergenerational crisis, even by my proposed limiting principle. That does not mean that the limiting principle is wrong -- indeed, it affirms the usefulness of it, because at least it implies that absent such age-related differences, COVID would fall on the other side of the dividing line. Saying that, for example, blank verse is poetry and not prose does not mean that there is no difference between poetry and prose.
I do think, however, that both of my objections above are meaningful precisely because they highlight how the distinction between generic crises and intergenerational crises would be blurred beyond recognition by following the line of reasoning that says that any difference that tracks age transforms a crisis into an intergenerational crisis.
Maybe it does not matter if there is a difference between poetry and prose, and even though I know nothing about that topic, I will assume that it has generated a hot debate that has raged for decades without resolution. I do know that "what we owe future generations" is an inquiry that quickly becomes far too broad. If my current attempt at a principled distinction does not work, the search will continue.