John Locke Update / Research Brief

‘Following the science’? In a free society, Cooper’s severe restrictions require strong justification

posted on in COVID-19 Series, Law & Regulation, Legal Update
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Notwithstanding Gov. Roy Cooper’s claim to be “following the science,” my colleagues at the John Locke Foundation have repeatedly shown that there’s precious little in the way of scientific support for the various lockdown orders that he has imposed on the people of North Carolina this year. For example, in a two-part series, the first part of which appeared this week, Jon Sanders reviews all 22 studies cited by the Cooper administration in support of the facemask mandates it has imposed on the people of North Carolina and finds that not a single one constitutes the kind of “slam-dunk case” it would take to justify those mandates.

In a couple of insightful passages, Jon explains why only a slam-dunk case would be sufficient:

Cooper and his health secretary, [Mandy] Cohen, are well situated to use their respective offices to recommend, to persuade, even to urge people to adopt practices such as wearing face coverings that they believe is healthy and proper. Doing so would reciprocate the respect and trust afforded them by their fellow North Carolinians, their co-equals in the eyes of God and our state constitution.

Instead, however:

Cooper has forced face masks on North Carolinians, even in their own homes at times, at the threat of misdemeanor charges, civil fines, business closures, people being turned away at business doors, people being threatened with trespassing, people being urged by the governor to call the cops on their fellow citizens, and perhaps worse.

Implicit in Jon’s argument is an important principle that doesn’t get as much attention as it should in the current debate over COVID-19 policy. Morally and legally, a free society like ours necessarily rests on the presumption of liberty, i.e., on the presumption that individual citizens have a natural right to freedom of thought, word, and action.

Our state and national constitutions are predicated on that presumption, and if we take it seriously it means citizens should never have to prove they have a right to live their lives free from government interference. Instead, it is the government that bears the burden of justifying the restrictions it wishes to impose, and the more severe the proposed restrictions, the stronger the justification must be.

The restrictions that Cooper has imposed on North Carolinians this year have been extremely severe, and yet, despite what he claims, his justifications have amounted to little more than an insistence that he and his administration know best. There was no scientific evidence supporting lockdowns when they were originally imposed, and, as evidence regarding their efficacy has gradually become available, that evidence has turned out to be ambivalent at best. A lot of it suggests lockdowns don’t do any good at all, and none of it comes close to showing that the benefits achieved by lockdowns have exceeded the social and economic costs.

The truth is, all over the U.S. — indeed, all over the western world — governments have been in a state of ignorance regarding COVID-19 from the start. The appropriate thing to do in that situation would have been to be honest about how little they knew, to share what information they had, and to allow individuals and groups to make their own decisions about how to respond to that information. Ironically, as some of the mask research cited by the Cooper administration and analyzed by Jon suggests, that would almost certainly have resulted in more innovation, less politicization, and a better and more effective response overall that the maximally restrictive approach they actually took.

Back in early May I offered this advice:

Statewide lockdowns have unjustifiably violated the rights of millions of Americans. Someday, I hope, the politicians and bureaucrats who imposed those lockdowns will be held accountable for their tyrannical recklessness. Right now, however, I think we have more important things to do. For the time being, I suggest we spend less time fighting about the shutdown orders and more time figuring out how to get back to work safely. (And by “we” I mean everybody: left and right, Democrats and Republicans, technocrats and ordinary people.)

As we deal with this new and potentially dangerous epidemic disease, Americans ought to be pulling together. If federal, state, and local governments hadn’t interfered, I am sure that’s exactly what we would be doing. And if federal, state, and local governments had allowed it to happen, I am sure we’d be seeing a lot more of what we really need, i.e., innovation and creative workarounds with regard to things like protective devices and testing and tracing technology.

We all want the same thing, after all. We want to contain the spread of COVID-19 with as little social and economic disruption as possible. Given half a chance, Americans can undoubtedly achieve that goal. Unfortunately, before we can get on with it we’ll have to clear up the confusion and heal the wounds caused by the statewide lockdowns.

For more information see:

Does Cooper’s own research justify his extreme orders? Part 1

Thanksgiving week NC Threat-Free Index despite Cooper scaremongering

EPA advisor smashes Cooper and Cohen’s “case” for masks

What does the science say about Cooper forcing healthy people to wear masks?

Cooper administration offers unconvincing case for requiring masks

Statewide lockdowns unnecessarily divide, divert us from task at hand

Statewide lockdowns aren’t just outrageously authoritarian; they’re also ineffectual, and they waste valuable time and energy that should be used to fight COVID-19.

How Effective Are Stay-at-Home Orders?

How Effective Are Stay-at-Home Orders? Continued

Time to amend the Emergency Management Act

Time to amend the Emergency Management Act, continued

Jon Guze is Senior Fellow in Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School… ...

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