Cicero and Tiebout on Vaccine Mandates
Whether it’s accepting election results, changing the rules to benefit a political party or vaccine mandates, we have concerns about liberty and democracy versus autocracy. As to the latter, vaccine mandates, I think most people think of that as a special case. As one USA Today author put it, “Seldom in the nation’s past has a culture boundary been so clear-cut, or the clash between personal rights and public welfare been so polarized.” If there is to be a mandate, one question is “Who should do it?” The answer could be the President or lower levels of government. In the end, it is a legal question (and not one I can answer). However, I can examine the economic case for federalism – where different levels of government can govern the same area. In this particular case, however, the issue is the right level to govern on specific issues.
First, I’m struck by how many state mottos involve liberty and how they treat mandates (as of Dec 22, 2021). For example,
Delaware: Liberty and Independence (mandates for health care workers)
Iowa: Our Liberties We Prize and Our Rights We Will Maintain (no mandates or bans)
Massachusetts: By the Sword We Seek Peace, But Peace Only Under Liberty(mandates vaccination or testing for health care workers)
New Jersey: Liberty and Prosperity (mandates vaccines or testing for health care workers)
Pennsylvania: Virtue, Liberty and Independence (mandates vaccines or testing for health care workers)
Virginia: Thus Always to Tyrants (autocrats)
Vermont: Freedom and Unity (mandates vaccines or testing for health care workers)
West Virginia: Mountaineers are Always Free (no mandates or bans)
And the starkest choice:
New Hampshire: Live Free or Die (ban on vaccine mandates except under extreme circumstances)
Since the founding, Americans have always been concerned about the potential power of a centralized demagogue of whom founder Elbridge Gerry of Massachusetts said, “Demagogues are the great pests of our government.”
The fight against autocracy and for liberty and democracy is an old one. This was a major problem during the Roman Empire from 31 BCE to 476 ADE, particularly during the rule of the Caesars, particularly Julius and Augustus. The great defender of liberty in Rome was Marcus Tullius Cicero, a statesman, lawyer, scholar and philosopher who was also Rome’s greatest orator.
He had befriended young Caesar Augustus who apparently did not wish to follow the elder Caesar as a dictator. Ultimately however, Augustus turned toward assuming a dictatorial position as he had won many battles and was convinced that it was inevitable that he should be the sole ruler. At that point, Cicero, who once said that “the most prized possession of the Roman people is liberty,” turned against him.
Cicero later said,
“Whenever in the course of my thirty years in the service of the state we have yielded to temptation and ignored the law, often for what seemed at the time to be good reasons, we have slipped a little further toward the precipice.”
He went on, “The Roman Republic, with its division of powers, its annual free elections for every magistracy, its law courts and its juries, its balance between Senate and people, its liberty of speech and thought, is mankind’s noblest creation, and I would sooner lie choking in my own blood upon the ground than betray the principle on which all this stands-first and last and always, the rule of law.”
So too, we have always had our own defenders including Patrick Henry, “Give me liberty or give me death,” and the more recent great Senator Daniel Patrick Moynihan (1927 to 2003) who said it was time to stand up to the critics from other countries and announce that we, the United States, were the world’s leader— the “party of liberty.”
The rule of law, beginning with the Constitution and the Bill of Rights, strongly endorses federalism which carefully defines the specific laws of the federal government, leaving all others to the states. As of now, about half of the states have some sort of COVID mandate.
For many, I believe that liberty is the right to be largely left alone. Being left alone to carry on one’s day to day business is liberty. Others, who care passionately about public health, may find less concern with mandates from the federal government.
Since it is impossible to satisfy both by one national decision, one answer comes from economist (and geographer) Charles Tiebout, who suggested that people can “vote with their feet.” He thought of this as a “non-political solution where people can move to jurisdictions that are “closer to one’s ideologies.” This is the federalist solution where it is left to the states or even lower jurisdictions. Of course, some object to mandates no matter where they come from but at least, over time, they can leave the offending state and move to one they like.
This doesn’t solve the problem of unvaccinated people traveling to mandated vaccine jurisdictions but, by mandating vaccines at lower levels of government, it does guard against autocracy in favor of liberty.
As Cicero warned, where we choose autocracy over liberty, we run the risk of slipping a little further toward the precipice.