Before the COVID-19 pandemic nobody thought we were free to spread infections diseases.
That is, you have a liberty interest to do anything you want to your own body that is self-regarding behavior, but nobody has the liberty of transmitting a potentially lethal infectious disease to another person. That’s never been the understanding of liberty since John Stuart Mill. I know of no intellectual position that would say that a person has the right to take measures that are likely to transmit an infection to others that could potentially kill them.
So let me ask you about a thing that’s been worrying me in all sorts of contexts: the complete death of deference to federal agencies. There is a long-standing tradition that, for the most part, if a statute is ambiguous, if the agency interpretation is reasonable, judges are meant to defer. That is how in fact we get to the place, as you noted, where millions of scientists get to make decisions and federal judges can’t second-guess them.
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