On his blog this morning, my friend and fellow blogger Donald Boudreaux has given three cheers to Florida governor Ron DeSantis for his opposition to vaccine passports. I would give the governor at most two cheers.
Why?
Because one type of vaccine passport is horrendous and a huge violation of individual rights. Moreover, even aside from principle, it’s less and less effective as we get closer and closer to herd immunity. That type of vaccine passport is one that governments are considering requiring. That’s the issue on which I agree with DeSantis.
But the other type of vaccine passport is one that firms and businesses are thinking of requiring before letting people into their buildings. This raises no issue of individual liberty. Well, actually, it does, but not in the way that opponents of these vaccine passports argue. The issue of individual liberty is whether companies should be free to decide whom they get to deal with. I say they should. I have long been a supporter of freedom of association, even in cases where that view has been unpopular. I wouldn’t require someone to be vaccinated before dealing with that person because I had my second Moderna shot 20 days ago. But other people have different attitudes to risk. And a business needs to take into account the different attitudes people have. Some may decide that they can get more business by assuring the public that anyone who enters their business has been vaccinated. This is a great solution to a tricky problem. It also has the side benefit of giving people an incentive to be vaccinated. We still hear about people who are nervous or hesitant about, or even opposed to, getting vaccinated. They should be free not to be vaccinated. But other people should be free not to deal with them.
READER COMMENTS
JK Brown
Apr 2 2021 at 5:45pm
And others should be free not to deal with those who demand vaccination passports for a prophylactic cocktail of experimental chemicals that only, officially, has a high efficacy in preventing symptomatic COVID-19. After all, such people seem to believe that their “vaccination” will mean they cannot spread the virus, not yet, an officially sanctioned attribute of the “vaccines”.
As it currently stand, the “unvaccinated” are a low risk to the “vaccinated” but the “vaccinated” may or may not be a significant risk to the “unvaccinated”. So perhaps the segregation should be that the “unvaccinated” can move about freely but the “vaccinated” may be restricted from interacting with the “unvaccinated” who want to continue to use social distancing and close-range mask wearing to avoid the virus.
Mark Z
Apr 2 2021 at 7:05pm
That makes no sense: even assuming vaccinations do nothing to reduce transmission, *everyone* is a threat to the unvaccinated, not just vaccinated people, so there’s no reason to specifically segregate vaccinated people even under the highly unlikely assumption that vaccines have no effect on transmission. Given that vaccines reduce rate of symptomatic infections, and symptomatic infections cause much or most of the spread, it’s pretty close to a certainty that vaccination reduces spread (https://www.nytimes.com/2021/03/29/world/pfizer-moderna-covid-vaccines-infection.html).
John Alcorn
Apr 2 2021 at 6:17pm
David,
An individual can establish that she is immune by providing a current positive COVID-19 antibodies test; or that she isn’t a carrier by providing a current negative COVID-19 test. Given these alternatives, might it be arbitrary of organizations to require specifically a vaccine passport? If the organization’s concern is the person’s vulnerability, then a current positive antibodies test might suffice. If the organization’s concern is the person’s infectiousness, then a current negative COVID-19 test might suffice.
Might a polity strike a better balance of individual liberty and freedom of association, by allowing organizations and establishments to require either proof of vaccination, or a current negative test, or a current positive antibodies test?
David Henderson
Apr 2 2021 at 6:39pm
I’m all in favor of allowing organizations and establishments to require either proof of vaccination, or a current negative test, or a current positive antibodies test?
Did you get the idea that I’m not? I advocate freedom of association. That means I favor allowing non-government organizations to do any or all of these things.
John Alcorn
Apr 2 2021 at 7:35pm
David,
I expressed my thought imprecisely.
An association wants a COVID-19-free environment. It can achieve this end efficiently by means of any one or another of various kinds of ID; for example, proof of vaccination, or a current negative virus test, or a current positive antibody test. However, differences among the IDs do matter to individuals. Wouldn’t the following social rule preserve freedom of association, whilst greatly increasing individual liberty?:
Allow associations to exclude persons who lack COVID-19 ID, but allow individuals to choose among the set of COVID-19 IDs (say, either proof of vaccination, or a current negative virus test, or a current positive antibody test).
robc
Apr 2 2021 at 11:18pm
Yours is a good solution, David’s is the perfect solution.
Steve
Apr 2 2021 at 9:46pm
The distinction you draw is necessary and one that I agree with wholeheartedly, in a vacuum at least. Seems hard to believe, though, that those organizations would be free to make those decisions without some form of pressure applied by some governmental agencies. Just too much politics around this issue right now.
BC
Apr 2 2021 at 10:36pm
I understand the argument for freedom of association. However, we already have anti-discrimination laws that infringe freedom of association. The Rule of Law is also important, and part of the Rule of Law is that our legal understanding of the freedom of association be uniformly applied. Do you see a difference between banning private discrimination against those born with an orientation towards gay sex and banning private discrimination against those born with an orientation towards non-vaccination? What about banning private discrimination against those whose religious views frown upon consuming pork, e.g., discrimination against Jews and Muslims, and banning private discrimination against those whose religious views frown upon vaccination? Are there any limits on freedom of association that would allow for bans on private religious and sexual orientation discrimination but prohibit bans of private anti-vax discrimination?
Aside from freedom of association, the logic of vaccination passports is actually quite flawed. At first glance, it might seem reasonable for a business to want to assure “the public that anyone who enters their business has been vaccinated”. But, who needs to be assured? The vaccinated are already protected. *Unvaccinated* people would probably find comfort in knowing that everyone else has been vaccinated but, with vaccination passports, the unvaccinated wouldn’t be allowed in the business anyways! Vaccination passports really only help if they are required of some, but not all, unvaccinated people. One might argue that vaccinated persons for whom the vaccine is ineffective might benefit from vaccine passports. However, if the vaccine is ineffective for a person, then that person is just as likely to become infectious as a non-vaccinated person. So, if a business wants to exclude non-vaccinated persons, it should also exclude vaccinated persons for whom the vaccine is ineffective (detected, for example, through antibody tests?). But, if both of these groups are excluded then, again, no one will be left to actually benefit from the exclusions. The issue is that the potentially infectious people are also the ones that need protection from other potentially infectious people. It’s their vulnerability to infection that makes them potentially infectious.
Michael
Apr 3 2021 at 8:03am
The difference, in this particular case (Covid-19 vaccination), is an obvious one – requiring vaccination protects the health and safety of a businesses’ employees and customers. Exclusion of Jews, Muslims, and gay people achieves no such aims.
This logic is flawed. Vaccines are not 100% effective, meaning vaccinated people are still at some degree of risk, and vaccines are not (and will not be anytime soon) approved for all potential customers (it is going to take some time for approvals in children under age 12).
As to who benefits, in the scenario where business owners can decide whether or require proof of vaccination, much of the benefit accrues to the business owner and his employees. (It would be different in a regime where the government mandated that all businesses require proof of vaccination). Would requiring proof of vaccination increase or reduce sales? It likely depends on the business. I would guess that, soon, most restaurants would do more business if they required proof of vaccination than if they did not.
I do think the benefits of vaccine passports may be relatively limited, both geographically and temporally. Once enough people are vaccinated in a given region, overall risk would be lower for everyone. But as a short-term way to allow businesses to service more customers I think there is real potential here.
John Alcorn
Apr 3 2021 at 8:31am
Michael,
Shouldn’t the businesses you have in mind accept proof of a current negative virus test or proof of a current positive antibody test, as valid alternatives to proof of vaccination? I must be missing something. I don’t see why businesses should count only proof of vaccination, when there are various equivalent instruments, and when subsets of customers (and of employees) may have good reason to prefer an instrument other than proof of vaccination. For example, if I understand correctly, a person who has recently recovered from COVID-19 (and who thereby has acquired immunity) may have medical reason to delay vaccination.
Tom West
Apr 3 2021 at 9:55am
Simplicity.
As a business, if you are leaning this way, you want to communicate to staff and potential customers that you value their safety. “Vaccination passport required” would do that in the same way “masks required” does today.
And yes, I expect there to be businesses that advertise “no vaccination required, no mask allowed”.
Honestly, in the long term I expect vaccinations to eventually become like the Internet. You can survive without either, but don’t expect it to be easy to participate in the mainstream world. And yes, this means life is hard for those who for one reason or another can’t or won’t.
Michael
Apr 3 2021 at 2:15pm
Sure. That would basically be just as good. Proof of vaccination or recent negative test would be just fine.
robc
Apr 3 2021 at 10:14pm
You left out the most important of the 3. A positive antibody test is even better than a vaccine, because the vaccine might not work for some reason.
Michael
Apr 4 2021 at 7:43am
I disagree on ‘better.’ All available approaches have their limitations, whether it be less than 100% efficacy for vaccines, false positives/negatives for various types of testing.
BC
Apr 3 2021 at 2:02pm
Michael: “meaning vaccinated people are still at some degree of risk”
The vaccinated that are at risk are also themselves a threat to others. Whoever is at risk of infection is also a threat to infect others. So, the same argument for excluding non-vaccinated also applies to the vaccinated that are at risk.
“vaccines are not (and will not be anytime soon) approved for all potential customers”
Then, those customers ineligible for vaccination present an infection threat and should be excluded for the same reason that non-vaccinated persons should be excluded. In fact, ineligible persons are non-vaccinated persons.
“much of the benefit accrues to the business owner and his employees”
If the business owner and employees are vaccinated (effectively), then they are not at risk. If they are non-vaccinated or vaccinated, but ineffectively, then they themselves present an infection threat to everyone else.
Again, one can’t escape the fact that whoever is at risk of infection, and hence would benefit from excluding the non-vaccinated, are themselves infection threats to everyone else, just like the non-vaccinated. Differentiating between those that are infection threats because they are born with an orientation or hold religious views against vaccination and those that are infection threats for other reasons (vaccination ineffective or vaccination not approved) is not about infection threat (which is the same, by construction) but about vaccination orientation or religious views. That makes vaccination orientation discrimination no different from sexual orientation and other religious discrimination.
Tom West
Apr 6 2021 at 9:24pm
I’m not certain I understand the logic here. We constantly distinguish between those who have attempted a safe course of action and failed vs. one who has made no attempt to do so.
While vaccine hesitancy might be becoming a religion, I think most would still consider it to be a choice (for most) and thus fair game for discrimination.
Michael Sandifer
Apr 3 2021 at 1:00am
David,
I’m curious. Is there any level of risk for which you’d have government mandate vaccination and providing paperwork thereof? If we had a pandemic killing 1/3 of people infected, for example, and it’s highly contagious?
Don Boudreaux
Apr 3 2021 at 11:31am
I remember well my very first day of law-school classes. My great contracts professor, Bob Scott, announced that he doesn’t want to hear hypotheticals. Later that same day, my great torts professor, Saul Levmore, announced that he doesn’t want to hear hypotheticals. I heard the same prohibition on hypotheticals from several other professors during my entire three years in law school.
I recall being disappointed. “Hypotheticals are not only fun, they’re also useful,” I thought to myself. “Economists and, especially, philosophers use them all the time.” But I soon grasped the wisdom of avoiding hypotheticals in law school – which is this:
Law, especially in the Anglo-American tradition, grows out of lived experience. And lived experience is too often filled with too many surprises and complexities for hypotheticals to take adequate cognizance of.
Hypotheticals have their place, of course – and the question posed here to David about a hypothetical situation is reasonable. But everyone should be aware of, and wary of, the unseen danger lurking within hypotheticals. Precisely because hypotheticals posit ‘facts’ ex nihilo, these are divorced from other facts that, in the real world, might be so relevant as to change the assessment of the real-world situation from the assessment of the hypothetical.
Another danger of hypotheticals springs from the human-imagination’s great fertility: hypotheticals are too easy to imagine. And once something is imagined, it’s too easy to lose track of just how likely is the hypothetical to come true in reality. Ability to imagine some possibility is not an ability to judge how plausible is that hypothetical; much less is it an ability to judge how probable it is.
By avoiding hypotheticals in legal instruction, good law professors keep their students’ focused on conflicts and situations that actually occurred, thus avoiding possible distortions in thinking that might well arise when students have their heads full of hypotheticals.
If people were more wary of hypotheticals, one great benefit would be far less infatuation with the so-called “precautionary principle” – a nutty idea that is rooted in hypotheticals.
BC
Apr 3 2021 at 2:44pm
“hypotheticals posit ‘facts’…divorced from other facts that, in the real world, might be so relevant as to change the assessment of the real-world situation from the assessment of the hypothetical”
I hadn’t appreciated this point before. Now, I understand why Supreme Court nominees refuse to answer questions during confirmation hearings about hypothetical cases that might come before them — beyond mere political prudence. To consider a case properly, one really does need to consider *all* the facts and arguments, not just the subset presented hypothetically. In a real-world case, one might need to consider factors beyond fatality rate and contagiousness, factors that one can’t anticipate now in the hypothetical.
Tom West
Apr 6 2021 at 9:09pm
A very good point (and well put) about hypotheticals
But I do find them occasionally useful when discussing absolute principles rather than consequences. Most of the time, it turns out that consequences trump principles in some hypothetical circumstances, in which case now we’ve established consequentialism, all we’re arguing is price.
(I’ve often said I have no principles, as I have none that I wouldn’t abandon if the circumstances were right.)
Nick
Apr 5 2021 at 11:54am
I would argue against a vaccine passport under practical grounds. What good is it to set up a system that will only be good for a short time, say one or two months if even that? Between natural immunity and immunization, US COVID cases will be dropping like they have in Israel soon. By the time most private companies and certainly the federal government have developed and implemented a system of vaccine passports, whether type 1, 2 or 3, the pandemic will be over and the effort will be at best wasted and at worse an unnecessary burden.
Ryan McPherson
Apr 7 2021 at 2:15pm
This reality will lead people to the next logical step. Vaccine passports for covid are all fine and good, they’ll say, but what about the Flu? What about the next covid variant? What about all sorts of other things (we already see “sin taxes” happening in cities across the country). We are in a situation right now, where the covid hysteria has accelerated our move to an all out centrally directed public health system… universal health insurance means that your private decisions have public implications (here is where libertarians who don’t really understand the “harm principle” end up just backing themselves into the corner of full state control), so the government is justified in ensuring that you are healthy. Get your regular checkups (and why not put these on the passport app as well?), get your exercise (app can monitor your steps, too, right?), avoid sugar and cholesterol, etc…
We are very quickly headed toward a system where privacy is eliminated entirely, and the government is not only interested-in, but directly responsible for, your health decisions.
Ryan McPherson
Apr 7 2021 at 2:09pm
I’m sure it would be fruitless to point out that, in our current climate, freedom of association is already limited. You are not free to refuse service to anyone you like, whether that be women or people of a certain race… if I have a sign in front of my business that says I don’t want anyone to come in who is wearing a Hijab, I’ll be sued. Likewise if I don’t want to bake a cake for a gay wedding or transition celebration. Now, I’m sure you would also support freedom of association in these cases, but the laws as currently written do not allow that. Vaccine passports create a sort of “discrimination exemption,” and I do think that is problematic, especially in cases where there are not easy alternatives. And especially because the regulation in question is essentially arbitrary. Unvaccinated people pose no threat whatsoever to anyone. The refusal to do business with them is a personal and discriminatory one, much the same as saying “maga hats not welcome here” or “hippies use back door.”
Howevermuch we support the ultimate freedom of association, in theory, we have to recognize that such policies are still harmful, especially when government intervenes to stop some of them, but not all of them.
A further complication is the fact that we have two competing rights. Since when does the right of privacy take back-seat to the right of association? We are headed down a dangerous road with vaccine passports, and I don’t believe that we can effectively walk the fine line between government mandates and private mandates; again, especially when the regulation is for ideological purposes (anger toward those who choose not to vaccinate) and not practical purposes (these people are no threat to anyone). What if you walked into a business that demanded you show proof of clean STD tests? you say “I’m not planning on having sex with anyone in here,” but the business has a right of association – he wants to encourage people toward monogamous relationships… so, show your wedding ring, prove that it’s a person of the opposite gender, and also prove that you are clean of STD’s. This is to encourage behavior that he likes, and he has every right to choose with whom to do business, right? But the end result is that you have a private agency demanding to see your personal medical records and also demanding that you participate in a particular medical intervention, which (as unauthorized practice of medicine) is patently illegal.
You can argue that such a business would never survive, and that’s fair – but here I think we’re dealing with something far more dangerous, because we have a government that is now in the business of trying to be personally involved in your health (apparently now ignoring HIPA and your rights to privacy). Government incentivizes that sort of behavior (just look at COSTCO with its mask mandates), and businesses use government intervention to force costly restrictions and behaviors on competitors.
I understand your commitment to the libertarian ideal of free association – and I think there are many, many appropriate targets when it comes to threats on this ideal. But in this instance, it’s not just that one ideal, but competing ideals, and we essentially have to pick one. I would pick what ends up infringing on the fewest rights overall, and which hopefully encourages the greatest liberty overall. That would be a blanket restriction on these sorts of interventions and requirements, even in the private sphere. We have learned over the past year that governments will not be satisfied with simply allowing market forces and personal choice – once people adopt “vaccine passports” and the massive infringement of privacy and individual medical choice that these entail, it will not be long before we cease to draw any line whatsoever. You may have the ability to simply go to another grocery store, but you cannot pick a different baseball park, you cannot always pick a different school… market options, in many cases do not exist, and pretending that they do will result in a de facto vaccine passport requirement for anyone to effectively live his life. Which is just as bad as a blanket government mandate.
DeSantis is absolutely correct to cut that off entirely, and the liberty preserved far outweighs the liberty lost in what is unavoidably a zero-sum game.
Ryan McPHerson
Apr 7 2021 at 2:21pm
One more thought on this. With our current government, there is virtually no such thing as a truly free market. Therefore, we can only try to get as close as we can while understanding that whatever we do will end up having consequences.
Why do you think the CEO of Costco was standing up on stage next to Jay Inslee when he announced the WA state mask mandate (etc…)? It wasn’t because he is some sort of big-hearted philanthropist who is concerned about the health of Washingtonians. It is because business will always seek to gain competitive advantage in any (hopefully legal) way that they can… therefore, businesses who can will lobby the government for the imposition of costs that cannot be absorbed by their competitors.
If we start by allowing, in the name of “freedom of association,” some businesses to require vaccine passports for the privilege of doing business, how long will it be before these businesses seek to impose burdensome costs on their competitors with the help of government? It will be immediate. You don’t have to require passports, but if you don’t, you have to operate at 25% in order to ensure “safe” distancing, and you have to continue to require masks, etc… Or, maybe, in order to effectively monitor these passports and keep records (another massive infringement on individual liberty that can be avoided by simply banning these passports outright), you must invest in the technology to screen customers at the door and maintain a database – for “safety,” of course, through contact tracing or whatever else…
jon
Apr 20 2021 at 7:47pm
My sentiments exactly. The stores could have been doing tests at the door from the very beginning and haven’t. So, a passport would be just something sinister going on and probably more of a fascist ploy. Maybe I’m getting my tin foil hat on. But after the unscientific lock downs, unscientific mask mandates, and now passports. I call bull on all of it.
jon
Apr 20 2021 at 7:44pm
This makes no sense. Companies have been allowed to check your temperature before going into stores from the very beginning, but they haven’t. We know that if you have covid and are asymptomatic that the chances of you spreading it to someone else is pretty much 0. So, all of a sudden stores would start asking for vaccine passports?
No, this has nothing to do with freedom of association. This is a fascist take over by the government in conjunction with companies. If it was truly just the companies I would be OK with it. But this is a melding of the two.
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