In the spirit of breaking down legal distinctions (like that between religious opinion and philosophical opinion), I would like to propose another legal principle for consideration, which may already exist in another form:
…the presumption of health.
For individuals, there is no reason to assume any other individual is healthy, much as there is no obligation to assume that any given vagrant has never stolen and is unlikely to steal your property. It is always prudent to protect your belongings. If someone is coughing, no one is under any moral obligation to assume they don’t have a cold, or perhaps something worse.
But where the government and criminal law are concerned, basic heuristics do not apply. The presumption of innocence might be the most foundational principle of Western legal philosophy, extending far back into Talmudic and even Roman law. The presumption of innocence is important not merely for epistemological reasons, but for reasons of freedom. Innocent people may be accused of crimes for which they are unable to prove their innocence, and can be made to appear guilty by lawyers far more skilled in judicial persuasion than a common person. No one is truly free who can be accused of a crime and have it believed by his own nation unless he goes to the Herculean efforts of proving a negative.
Yet where freedom is concerned, we are beginning to see a similar problem emerge outside of the domain of civil and criminal law–health.
It is common knowledge and basic decency that one should stay home if one is sick. Spreading illness can be as harmful as crime, and laws already exist punishing those who knowingly spread deadly diseases (though those punishments are curiously decreasing in some places). Those who are sick and know that they are sick should stay home. If they must go out into the world, perhaps it might be prudent to wear a face-mask of some sort.
But the important part is that those who are healthy go about their lives without being treated as if they were ill. The burden is not on an employee to prove his health any more than it is to prove his innocence. To hold such an expectation would impose upon the freedom of healthy people who pose no risk to others, but perhaps worse, it threatens to justify a governing by heuristics and data which would throw the very concept of individual innocence or guilt out the window.
What we see with many current COVID policies around the world is a de facto presumption of illness, in which citizens are required to socially distance, mask up, get therapeutic injections (colloquially called “vaccines”), and otherwise act as if they were sick. Health is not presumed, but must be demonstrated with a recent negative test result.
If our betters assert the privilege of treating us as if we were ill until we prove our own wellness, and constrain rights accordingly, why can’t they simply presume us all to be criminals and shift the burden to us to prove our innocence? After all, the logic has already been accepted… and due to the complexity of the law, everyone is guilty of some crime or other anyhow.
When the culture lacks the will to defend principle, the law has never been an impediment to the desires of authorities. As a tool, the law provides the culture a means of retaining–and in some cases, even regaining–certain rights. But the law alone has never stopped the legislative or executive branches from stepping over (or, indeed, leaping over) their constitutional constraints. The “gun-free zones” first enacted in 1990 have been defeated every time they are challenged, due to their brazen unconstitutionality… but then they are simply reworded and passed again as a “new” law, to be defeated and rephrased again.
The political will to defeat unconstitutional gun restrictions is growing today, and it helps that the legal language around firearms is so unambiguous. But where pandemic policies are concerned, people have the will but often lack the exact framing. This is where the presumption of health might become valuable, not only in itself against tyrannical seizures of authority by the state in health matters, but also as a means to the end of preserving the presumption of innocence which–if left unprotected–might fall to the same philosophy that undermined the less-defended presumption of health.
P.S.: When it comes to the choices and preferences of private businesses, I am as libertarian as the next guy; a business that wishes to impose a mask-mandate on its employees and customers is well within its rights to do so. However, we are not living in a libertarian world where companies can make such a decision free from government harassment. So long as businesses are taking orders from state or federal authorities, there is no place for “private business” arguments in the discussion of COVID measures. If businesses face fines or sanction for making the “wrong decision,” then they become creatures of the state, just like schools which are federally required to respect students’ first amendment rights because they take state funding. And where law is concerned, I don’t see a difference between being given money by the state and not being fined by the state; in both cases it’s financial manipulation of the market in pursuit of the state’s own ends.
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Anonymous4 Sep 2021
Man, is this a brilliant piece.