Talking about Civil Liberties

~ John ~ 1 Comment

The stay-at-home protests in Michigan this week blew bugles all along our partisan trenchlines this week.  After the call-to-arms at the Lansing rally and its answering echo of presidential tweets, the weary platoons of Fox, CNN, and MSNBC dutifully rose to their webcam gunposts and blasted — mostly bloodlessly — away.  Sadly, the noise of the guns is drowning out an actual conversation we ought to be having: about how we can keep ourselves safe from this virus over the long term and still be free Americans within our tradition of civil rights and liberties.  It’s something that should concern us all.

Up to now, we’ve been in emergency mode, and the question has been largely moot.  Given the number of lives at stake and the imperative to save not only patients but the medical workers who treat them, governments at all levels have had to act fast.  The principal criticism has been the failure to act quickly, and decisively, enough.  In legal terms, our rights to free assembly and freedom of movement have been curtailed by the “clear and present danger” of the virus, requiring us to tolerate restrictions on our liberty we would consider intolerable — and unconstitutional — in normal life.

But how long does this persist, and what effect does it have on our liberties enshrined in the Bill of Rights the longer it goes on?  The Lansing protesters may have been asking that question too soon, and in the wrong way, and from the liberal perspective they were wearing the wrong clothes and using the wrong slogans when they asked it.  But it’s a valid – indeed vital — question, because the tools our Constitution offers us are basically at odds with the kind of legal analyses we’re going to have to undertake to keep ourselves both safe and free. 

Here’s what I mean.  The first amendment rights to free speech and free assembly, the fourth amendment right to freedom from search and seizure, and the judicially-crafted constitutional right to privacy are traditionally all framed from the standpoint of an individual’s right to operate in free, uncontaminated space.   The exercise of rights has always been deemed fundamentally healthy and good for that joint space.  Free speech, free assembly, and free worship are all traditionally considered good for democracy and for the health of society.  We want more of it, not less.  Free commerce is good for the economy.  Privacy is good for the nurturance of family life and individual growth.  All of these rights are good for us.

Not so in the COVID-19 world.  Gathering publicly right now is bad for you, and bad for everybody.   The public space is threatened by the free exercise of rights rather than improved by it.  Those who insist on the exercise of their rights are unfairly “free riding” on the sacrifices of others rather than benefitting the welfare of all.  Our paradigms of what constitutes the public interest are now turned upside down.

There have always been exceptions to the traditional rule, of course.  Speech that is so hateful or violent that it incites to imminent violence has traditionally been deemed outside the pale of beneficial public discourse.  On college campuses, workplaces, in the media, and in other public spaces, this exception to the rule has broadened of late to create a broader swath of speech considered publicly offensive.   There is a conservative/liberal divide about this, which is starting to prove an obstacle to a useful conversation about first amendment issues in the public health context. 

I think it’s particularly unhelpful to use the traditional rules governing free speech and assembly to think about public health issues surrounding the virus, because the former are fraught with moral and political value judgments associated with objectionable speech or subversive ideas, whereas the public health context ought to be free from such judgments and taints.  Viruses have no moral agency, and those infected are neither left or right.  We have to be extremely careful, if we are to preserve a system of rights and liberties, that we make any different treatment of those who test positive or are segregated not be punitive, stigmatizing, or devaluing.  This, in practice, will be an extremely tall order.  But it still has to be an essential goal.  

What we will need to accomplish it are two new, countervailing principles that do not currently exist in our jurisprudence today.  First, we need an integrated set of rights to freedom of privacy, assembly, expression, worship, and commerce that are balanced against the public interest in safety and health in an immuno-compromised world.  This will allow our courts to talk about individual rights and the free-rider problem without resorting to concepts soaked in outworn moral judgments and inappropriate blame.   Rights matter, and are good.  But safety matters too, and the intersection point between rights and safety is the fulcrum for government regulations based on preserving public space and minimizing free riders, informed by scientific knowledge and best practices in public safety.    

Second, we need to recognize that this new principle will inevitably result in some people being asked to forego freedoms and liberties solely for public health reasons, and for no fault of their own.  This runs deeply counter to the American idea that you cannot be deprived of liberty or property unless you have done something wrong, or without “just” compensation.  Under the new system, people may need to accept that they will be deprived of these things simply because they are sick, or because they may have transmissible illness even if they are not sick.  One can think of other scenarios whereby people are segregated and deprived of liberty because they are well.  Either way, segregating populations based on illness status  will require a strong system of protections to avoid discrimination, without which there will be a risk of abuse of population subgroups, tactics of surveillance that lead to arbitrary curtailment of liberty, and authoritarian abuse.  There may also need to be a compensation system to avoid some people bearing economic losses disproportionately.  But that is a debate we should have in the democratic space.

This is not a short-term project.  But the emerging science indicates that COVID-19 will not be a short-term problem.  Rather, we will be developing long-term strategies for regaining our footing as a society, as an economy, and as individuals.  How much freedom we will have in that new world will depend, in part, on how much we demand.

Love on the Gringo Trail

~ John ~ Leave a comment
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A dust-mote among all the personal rearrangements we’re are all having to suck up, given the bigger things going on right now, is that today Beret and I were scheduled to embark on a seven-week pilgrimage on the Camino de Santiago, walking 500 miles across northern Spain. 

I’m not Catholic, or even much of a Christian, but pilgrimage has always held a romantic appeal for me.  Beret and I met in college in a literature class on Chaucer’s Canterbury Tales.  The class was tedious; we spent almost the entire semester laboriously dissecting small piece of the text.  But I remember fondly Chaucer’s Middle English wit and cadence, chronicling the ancient ritual of travelers taking to the road as March turns to April, seeking the “holy blissful martyr” who “holpen them when they were seeke.”  And along the way, they rested at inns, passing the time by telling each other tales.

Few of us are on any physical roads at present, but we are nevertheless on a kind of journey.  So to pass the time, I’ll tell you a tale of Mexico, the place I first learned to love.

In 1982, upon graduating into the Colorado oil recession, I headed down to El Paso and walked across the border.  I arrived a brittle young man, spouting Marx and Joyce but underneath it all afraid of my own shadow.  Mexico broke me open.  I first found my way to Tulum, in those days an empty stretch of beach with a few thatched huts clustered around a soapy communal well, next to a Mayan village just beginning to cater to the trickle of tourists arriving by bus from the barely-opened new resort of Cancún, a hundred miles up the coast.  I stayed there two weeks, sleeping in a hammock.  Once a Mexican policeman patrolling the beach caught my friend sunbathing nude – he had to pay a $7 bribe from a wallet he’d buried in the sand.  Only then would the cop let him put his swimsuit back on.  But otherwise we felt utterly safe.  I spent the next four months wandering the ruins in Yucatán and Chiapas, knocking around bookstores and cafes in Mexico City, taking an ancient Pullman train from Mazatlán to the border, and sleeping in the desert south of Mexicali before crossing back at Calexico.  I’d spent less than $1000, learned basic Spanish, kept parental expectations at bay, and let Mexico work its medicine on my gringo soul.

But the next year was when the charm truly took hold, when Beret and I were first in Guadalajara together.   Of course falling in love is intoxicating.  But Mexico smelled of everything my world did not.  Cinnamon and tortillas, diesel smoke and newspaper, shoeshine and forgiveness.  You could walk all evening on the cobbled and cloistered streets until the rats gorged on your footsteps.  And the city’s great public buildings featured, not the old cloistered portraits of Catholicism, but the towering murals of Orozco.    

Mexico has always celebrated “mixture” — of food, of races, of cultures, of ideas – but that word does no justice to the actual process.  To truly “mix” the heart is to break apart, to surrender one’s self to the stone and slab of greater forces, and to emerge as someone else.   Mexico has been ground, like a good chocolate mole, from indigenous, Spanish, French, and gringo influences for hundreds of years, into one of the world’s richest cultures.   We who disrespect – even fear – Mexico have no concept of our loss.  

Still, when you’re in in love like I was, that March in Guadalajara 36 years ago, you don’t really grind.  You burn.  Every time I looked out my balcony window overlooking the old square and saw Beret come around the corner in her sky blue blouse, watched her cross the cobbled street, heard her voice echo in the stone entryway below, I burned.  Like Orozco’s “Man on Fire”, below.  I burned.   

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Oil Change in the Time of Coronavirus

~ John ~ 2 Comments

Across sudden fissures of social distance, how do we speak to each other?

Last weekend Beret mentioned that our old Highlander was within 500 miles of needing an oil change.  What with all the businesses shutting down for the duration, I decided to nip out to Grease Monkey, along with the other not-actually-panicking, not-quite-hoarding errands on my list.

I pulled up to the service bays and sat in the shade of a bright winter morning, watching the three guys work on two cars ahead of me.  Two were hooded and zipped against the chill, their hands in plastic gloves.  But one dude wore jeans, a cutoff-sleeve muscle shirt and bandana headband — a cross between Bruce Springsteen and Sly Stallone.  He perched on the running board of an F-250, leaning in to wipe the inside of its windshield with a rag extended from his bare fingers, one leg extending straight back, almost yoga-like, for balance.  His head craned back to inspect the upper corner, breath fogging the cold glass.  A weekend ago I’d have thought, “artful attention to detail.” This weekend I thought, “contagion.”

One of the other guys walked over.  “Oil change today?”

“Yeah.  But you can skip the interior cleaning.  Just the engine service is fine.”

He shrugged.  “OK.”

I got out of the car and went into the waiting room, using a paper towel I’d brought for the purpose to open the door.  Nobody was in there, so I found myself guiltily spying on Bruce through the countertop window, making sure he’d gotten the memo about no interior cleaning.

He came through the back door.  “They told me you don’t want any cleaning or vacuuming?” I nodded.  “Suit yourself.”  I could tell he was pissed.  I thought, he’s probably one of those folks on the other side of the NPR poll I just read about, who doesn’t think this is serious, who thinks we are all overreacting.  And on top of that, there’s this social taint: that I’m a rich guy, treating him and his business as unclean.

I decided I would not leave these things unsaid.

A few minutes later he walked back in to ring me up.  His affect flat, he went through the checklist of services performed: oil, filter, coolant, washer fluid – oops, there it was, no windshield or vacuum, “per customer request” – he read it out, as ironic as the leash of customer relations would allow.

I stopped him.  “Yeah, sorry for the paranoia about that.  This coronavirus thing is making us all crazy, huh?  Are you getting a lot of that?”

“No, not really.”

“Well, they’re telling us we’ve got to be super careful.”

His mask dropped.  “The whole thing just pisses me off.  I’m not afraid to travel.  I’m not afraid of any of this.  But I can’t go see my dad, and he’s in a nursing home.  I can’t go see my dad.”

“God, I’m so sorry.  Where is he?”

“He’s in New Jersey.  I just want to go see him, you know?”

“I’m really, really sorry about your dad.”  I paid, using my bare fingers on the pinpad of his card reader, making a mental note to use the wipes I have stashed in the car. He stapled my receipt.

“Well.  Thanks for coming in.  Have a nice day.” Still a hint of go-fuck-yourself.  But maybe not so much. 

Last week I’d have considered myself batshit crazy to act that way at a Grease Monkey.  Now I worry the Governor will shut the place down.  That guy won’t be seeing his dad anytime soon – to be honest, maybe ever.  Whatever worries I’m juggling right now don’t compare with that.   So maybe giving him a pass for being hostile is part of my job right now.  But as I replay the scene, I’m still not going to let him wipe my windows.