Updated on 5/15 (9:53 AM). How about: “Individuals (even ‘non-essential’ ones) have rights!” In preparation for my upcoming scholarly debate with my colleague and friend Ilya Somin, I have made significant revisions to my property-rights paper, available here (via SSRN), and which is now titled “A Nozickian or natural rights approach to the coronavirus pandemic.” Here is the introduction to my revised paper (references omitted):
In response to the current coronavirus pandemic, State governors all across the United States have issued a series of unprecedented and compulsory economic suppression orders, commonly referred to as “lockdown,” “stay-at-home,” or “shelter-in-place” orders. Broadly speaking, these orders require all “non-essential” businesses to close their doors and prohibit their employees from leaving their homes to work. But do these business lockdowns, however labelled, constitute constitutional “takings” under the Fifth Amendment to the U.S. Constitution?
This is not just a legal question, but also a moral and political one. Instead of waiting for the courts to decide whether shutdown orders are takings under the Constitution, this white paper will offer a Nozickian approach to the pandemic. Simply put, beginning today, local, State, and federal levels of government should start operating at once under the assumption that such orders are constitutional takings. The dire economic consequences resulting from the ad hoc patchwork of coronavirus shutdown orders are too severe and too urgent to leave to the courts.
Following this introduction, Part 2 of the paper will present a Nozickian or natural rights reading of the takings clause. Next, Part 3 will review existing case law and offer the best possible legal argument for why shutdown orders are constitutional takings, while Part 4 will discuss a recent takings case involving a shutdown order in Pennsylvania. Part 5 will then explore the public policy implications of lockdown orders from a Nozickian perspective. To do this, Part 5 will pose the following question: what is the morally optimal level of public theft in the coronavirus age? Lastly, Part 6, in the spirit of Robert Nozick, concludes with a simple thought experiment