Although the sentiment may seem paradoxical, libertarians should cheer this week’s decision by a federal judge upholding Indiana University’s vaccine mandate for students. The court reached the right result and the judge’s reasoning provides a forceful reminder that the government’s regulatory power, even in an emergency, is far from unlimited.
Like other colleges and universities, Indiana plans to reopen fully this fall, and is requiring all students provide evidence of vaccination unless they’ve received religious or medical exemptions. Only in this way — so university authorities contend — can the campuses return to their proper functioning.
Eight students filed suit, claiming that the mandate violated their constitutional rights. On Sunday, federal district judge Damon R. Leichty denied the plaintiffs’ motion for a preliminary injunction, ruling that should the case go to trial, the students were unlikely to prevail.
Hmmm. Coercion wins, individual liberty loses. Why should libertarians cheer?
Let’s go back a step.
Libertarians celebrate individual freedom. They’ve long been associated with opposition to vaccine mandates, which restrict personal liberty and interfere with bodily integrity. But that doesn’t make them anti-vaxxers. One can consider a thing desirable without believing people should be forced to do it. A 2019 Australian study found no correlation between scoring high on an index of libertarian thought and refusing to vaccinate one’s own children. On the contrary: Left to choose for themselves, libertarians were as likely as anyone else to want their own children vaccinated.
Moreover, libertarian thought on the issue is evolving. Well before the Covid-19 pandemic, such influential libertarian philosophers as Jessica Flanigan and Jason Brennan had authored thoughtful arguments in favor of many vaccine mandates, particularly when disaster is looming.
These theorists aren’t abandoning fundamental principles of respect for individual liberty. They’re arguing that in certain cases it’s reasonable to prevent acts that do direct, significant and foreseeable harm to others. In an evocative analogy, Flanigan likens a person refusing a vaccine to a man who celebrates the Fourth of July by firing a gun into the air, inadvertently striking a neighbor.
Which brings us back to Judge Leichty’s opinion in the Indiana case, Klassen v. Trustees of Indiana U., which itself carries so strong a libertarian flavor that one might consider it a part of the same conversation.
The university argued that the case was controlled by the 1905 U.S. Supreme Court decision Jacobson v. Massachusetts, upholding mandatory vaccination against smallpox. Leichty agreed. Nevertheless, he warned that health regulations demand more than mere expert say-so. “Jacobson doesn’t justify blind deference to the government when it acts in the name of public health or in a pandemic,” Leichty wrote.
Thus a mandate isn’t justified merely because health authorities say so.
Here it’s worth noting the narrowness of the mandate. It applied only to the Indiana University, not to the state as a whole. Moreover, the rules were adopted locally — quite close to the people who would be most affected by them — another favorite libertarian idea. Perhaps most important, other institutions in the state, schools or businesses or anything else, were left free to come up with their own rules, depending on their own circumstances.
What should also warm libertarian hearts is Leichty’s rejection of the proposition that rights should be read more narrowly because of the pandemic:
“[T]he Constitution isn’t put on the shelf. Indeed, in times of crisis, perhaps constitutional adherence proves the very anchor we all need against irrational and overweening government intrusion that would otherwise scuttle the ship.”
The pandemic isn’t over, and could still get worse. I adhere to my views that we have far too many laws, and that it’s better to pay people to do what we want than to punish them for refusing. But I recognize that depending on what course the virus takes, more mandates may be on the way.
