Mandates, Force, Choice, and Meaningless Political Theater
by Neil H. Buchanan
Years ago, a progressive economist (yes, they exist) was presenting a working paper to a full house at an academic conference. She was discussing poverty, and her comments returned again and again to the claim that poor people were being forced to take dangerous and onerous jobs. It was a sensible and thoughtful presentation, but toward the end of her remarks, an angry male voice boomed from the back of the room: "Who was it, exactly, that held a gun to their heads?"
This story (which I have surely related before on this blog, but it is still a useful teachable moment) has always struck me as the perfect example of how orthodox economists' notion of force and choice is completely lacking in nuance. You could have chosen to not work, so you had a choice. Freedom!
Interestingly, however, the politicians who normally rely on that type of economic thinking have suddenly become convinced that the notion of choice is the exact opposite: If you are faced with any limitations or costs at all for doing whatever the hell you want to do, then you have lost all of your freedom. This, of course, only applies to the people whom the Ted Cruzes of the world care about, because everyone else loses some options when certain people are given free rein.
Yes, I am talking about vaccine "requirements," mask "mandates," and all the rest of the things that Republicans are now vilifying, which has led them to oppose all public health measures that might "force" someone to do something that they do not feel like doing. None of it makes sense, but the nonsense goes deeper than it might seem.
It has become popular on the right to indulge the worst kind of tantrums, reinforcing a sense of entitlement that would not be tolerated in a five-year-old. Indeed, I have been thinking lately about one of my favorite family stories. When my oldest nephew (who now holds a Ph.D. in political science) was a toddler and first learning to talk, he went through a period in which he would respond to anything that he did not like by whining/shouting, "No! Can't wanna!!" Of course, he did not intend it this way, but taken literally, those words would mean not only that he preferred not to do something (go to bed, put on his shoes, eat just one green pea) but that it was simply not possible for him to feel differently.
To be clear, I am fully aware that I am arguing against people who are not making a genuine argument and who are operating in bad faith. Even so, it is worth taking a deeper look at the underlying presumptions that motivate their antisocial behavior.
So although the balance of this column will discuss various notions of volition, I will stipulate up front that when I hear various governors, senators, or people being interviewed in barber shops incorrectly invoking an absolute notion of freedom, all I hear is a shrill: "Can't wanna!!"
That said, there is an interesting consequence to our loose usages of words like freedom, mandates, requirements, and so on. And it is not merely the idea that some freedoms must be abrogated under various circumstances, most famously captured in the aphorism: "Your liberty to swing your fist ends just where my nose begins." As important as that notion goes, it depends on having a reliable notion of what liberty is, and what it means to "end" that liberty.
Washington Post columnist Max Boot had a nice piece yesterday in which he noted how completely commonplace vaccine requirements are in the U.S., pointing out that the U.S. Supreme Court has long since blessed these laws without a fuss. In response to a silly tweet from Florida Senator Marco Rubio (who seems incapable of offering anything but silly tweets), Boot pointed out that "we don’t let everyone make their own choice about whether to smoke indoors, wear a seat belt, drive drunk, drive at 100 mph or myriad other public health matters. Why should covid-19 — the deadliest plague in a century — be any different?"
All true, and more than enough to make an open-and-shut case against the can't-wanna crowd. As I began to explain in my column last Thursday, however, there is something deeply undefinable about what it means to be required to do something.
In my 1L Contracts class, the professor asked us at one point in the semester: "So, what is a contract?" Various people tried to offer versions of something like this as an answer: "A contract is a requirement that both parties live up to their promises." No, the professor finally said, a contract is merely a statement about the consequences of not doing something that a party once promised to do (in a way that is legally cognizable). He emphasized that this was hardly a novel point, but it was important for us to understand that contracts are not legal means by which people can be positively forced to do something.
The easier version of this argument is in the standard situation of contract breaches where damages are awarded, with the damages (however computed) being simply one of the choices facing the contracting party: either perform or pay not to perform. Even under contracts in which specific performance is ordered, however, there is still an alternative to performing, even if it is facing contempt of court and possible jail time.
And this logic certainly extends beyond private contracting to public laws, where we are describing a set of options from which people can choose. When Boot says that "we don’t let everyone make their own choice about whether to ... drive at 100 mph," he is in fact wrong, even though his overall point is valid. We actually do let everyone make their own choice about whether to drive at 100mph, subject to consequences (taking into account, of course, the possibility of evading detection and so on). People who are willing to face those consequences can choose to drive that fast.
The larger point here is that there is no clean distinction between being forced to do things or being a free person. By analogy, I wrote a column a few years ago in which I pointed out that there is no coherent meaning to the term "free trade," because the entire notion of free trade must be premised on a no-government baseline, where all trade would be carried out in a state of nature. The reality is that we are simply looking at different ways to organize international trade rules, none of which is "free" in any coherent sense. Indeed, it is not even coherent to describe something as "more free" or "less free," but I digress.
Therefore, even though it is possible to take what is usually called the "anti-free trade" position and win the policy argument, the free/anti-free distinction means nothing. Still, conservatives love to carry the flag of Free Trade.
Similarly, and even more obviously, one can argue that it is acceptable to take away people's freedom under some circumstances (such as during a global pandemic), but to take that position unnecessarily and incorrectly cedes ground to those who wear tricorn hats and believe that the height of freedom is to allow businesses to pollute as much as they want.
The incoherence of the force/freedom distinction is not always obvious, especially because it is so easy to win the argument without going to this level of analysis. But the incoherence is often hiding in plain sight. In his column yesterday, for example, Professor Dorf summarized an argument from Republican politicians:
From Texas to Florida to Arkansas, politicians who oppose mask mandates in schools don't generally say that kids shouldn't be allowed to wear masks. They say the decision should rest with parents. Applying the mask mandate ban to public but not private schools is consistent with that policy, because parents still have a choice. No one is required to send their kids to private school. Thus, parents can choose whether or not to send their children to a private school that requires masks.
That is correct as far as it goes, but the converse is also true. "No one is required to send their kids to private school," but it is also true that no one is required to send their kids to public school, either. Who, exactly, holds a gun to their heads? If the public schools will not allow students to attend if they do not wear masks, dissenting parents can send their kids to private schools that have no such requirement.
What if the government were to say that both private and public schools must not allow students to attend without wearing masks? Another choice is home-schooling. What if, for some reason, the law says that even home-schoolers must wear masks, and the government is able to detect and enforce that law? Again, the price that a dissenting parent will face is whatever the law says it is. Emigrating is an option.
Of course, each of these options feels differently coercive, depending on how many options are offered and how severe are the consequences that attach to the noncompliance options. But if orthodox economists can go so far as to say that people are Free to Choose™ between the only available job (even though it pays low wages and is incredibly dangerous) or not working at all, then the "you can send your kids to private school if it means that much to you" argument is at least in the same ballpark, and much less onerous.
Google recently tried to "force" its workers to begin again to work in the office, but many of them were willing to say, "If that's the choice you're offering, I'll work elsewhere." Google then changed its policy to imposing a salary penalty on those who choose to stay at home, changing the nature of the choice. Some low-wage employers are now saying that they are "forced" to pay people $15 or more an hour, which only means that these employers prefer either to reduce profits or increase prices rather than shut down entirely.
If every business that is open to the public were to "require" that all customers be vaccinated, those businesses would not shove needles into the arms of people screaming that they can't wanna. Some businesses might choose to offer free on-site vaccinations, but the vast majority would not do so. In the aggregate, businesses would simply be saying, "If you want to engage in public commerce, you must be vaccinated; if not, take your freedom elsewhere, that is, go home."
To be very clear, I am not at all saying that any set of choices is as good as any other. I am certainly not saying that people would feel just as free when options become less favorable than we have come to expect. Having to choose between complying with a law or renouncing one's citizenship is hardly the same as choosing between buying health insurance through the ACA's exchanges or paying a (ludicrously small) tax penalty, for example.
That, however, merely means that we are back to the less theatrical arguments that Boot offers, in response to the people shouting about Big Brother. In the before-times, there was no need to give people incentives (carrots or sticks) to wear a mask -- or to "force" them to receive a nonexistent vaccination to prevent contracting and spreading a nonexistent disease. Today, unfortunately, the disease exists; but fortunately, so do the vaccines.
The astrophysicist Neil deGrasse Tyson captured the absurdity of the idea that people should be allowed to circulate in public without masks and/or vaccines by comparing it to "having a peeing-allowed section of a swimming pool." The people whose lives have been disrupted by the pandemic and who are getting the vaccines do not want to swim in the miasma of the unvaccinated, nor do we want to allow the economy to continue to be whipsawed by the continuation of outbreaks that are completely unnecessary.
Your liberty to exhale droplets of a deadly virus might not end just where my nose begins, but your ability to try to do so without facing steeper consequences certainly does. Whether or not some people can't wanna get vaccinated, no one is holding a gun to their heads when we change the calculus of refusing a vaccine. The vaccinated are simply saying that harmful choices must carry real consequences.