Earlier this month, Judith Hermis, one of my junior colleagues at the Naval Postgraduate School, wrote a letter to Governor Gavin Newsom and sent me a copy.
I edited it and she accepted my edits. So the letter you see below is not the same one she sent. But it is true to the spirit and argument of her original letter. We talked on the phone and agreed that people need to speak out against Newsom’s and other officials’ wholesale infringements on our freedom of association. That’s why Judith gave me permission to quote it here.
By the way, she sent this well before either of us knew that Newsom did not practice what he preached when he went to the French Laundry with a lot of people and dined indoors without masks–and then lied about it.
Here it is:
Dear Governor Newsom,
I hope this message finds you and your family well. I am writing in response to the November 13 statement issued by the California Department of Public Health in connection with private gatherings. I am opposed to these mandates on freedom grounds. The Declaration of Independence states that Americans have unalienable rights to life, liberty, and the pursuit of happiness. These rights are impossible to maintain under the conditions of a coercive nanny state masquerading as a free republic. Second, and as important, government derives its just powers from the governed, not the other way around.
If you think your office has the right to issue rules pertaining to the activities that go on within private individuals’ homes, you have sorely misestimated the bounds of your authority. I fail to find Constitutional grounds for your office or any administrative branch to whom legislative authority is delegated to issue mandates, proclamations, guidelines, or statements bearing the imprimatur of governmental authority to regulate the activity of individual citizens within private homes.
The Declaration of Independence assures life, liberty, and the pursuit of happiness. It does not assure perfect physical safety from infectious agents. Moreover, as billions of humans from authoritarian societies, including members of my own immediate family, will willingly testify, perfect safety and perfect liberty are mutually exclusive goals. Many Americans, myself included, prefer liberty to safety because under liberty, those who wish to take additional precautions and private actions against, for example, contagious illness, are free to do so, while those who wish to live differently may also pursue their desires. Liberty maximizes the wellbeing of all citizens, including those who are more cautious and safety-oriented, and those who chose to live according to other priorities. Government mandates, by contrast, unreasonably deprive citizens of liberty under the guise of safety and force all citizens to comply with the desires of the most frightened members of society with no corresponding derivation of the government’s power from the governed. In plain English, the state government is attempting to coerce citizens to comply with the concerns of the most frightened individuals. This is antithetical to the conception of freedom America has long protected.
In closing, I would like to remind you of the wise words of Benjamin Franklin, who stated that, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Please defend our liberty by immediately denouncing the actions of the Department of Public Health. Are they free to make suggestions? Yes. Are they free to issue binding guidance? No. Sacrificing liberty for safety is an unacceptable arrogation of private rights by the government of our beautiful state.
Best,
Judith M. Hermis
Private citizen
READER COMMENTS
charlie
Nov 24 2020 at 1:31am
“I fail to find Constitutional grounds for your office or any administrative branch to whom legislative authority is delegated to issue mandates, proclamations, guidelines, or statements bearing the imprimatur of governmental authority to regulate the activity of individual citizens within private homes.”
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=GOV&division=1.&title=2.&part=&chapter=7.&article=3.#:~:text=The%20Governor%20may%2C%20in%20accordance,the%20event%20of%20an%20emergency.
“Many Americans, myself included, prefer liberty to safety because under liberty, those who wish to take additional precautions and private actions against, for example, contagious illness, are free to do so, while those who wish to live differently may also pursue their desires.”
Pandemics cannot be defeated by private action. When your desire to live differently will, in all reasonable estimation, kill many of your fellow Americans, it is only reasonable to ask you to take additional precautions.
To quote Benjamin Franklin:
“In 1736 I lost one of my sons, a fine boy of four years old, by the smallpox taken in the common way. I long regretted bitterly and still regret that I had not given it to him by inoculation. This I mention for the sake of the parents who omit that operation, on the supposition that they should never forgive themselves if a child died under it; my example showing that the regret may be the same either way, and that, therefore, the safer should be chosen.”
Philo
Nov 24 2020 at 10:41am
“When your desire to live differently will, in all reasonable estimation, kill many of your fellow Americans . . . .” What if you are rationally confident that you are not infectious? What if in traveling you come into close contact only with other people who willingly assume the risk? “. . . it is only reasonable to ask you to take additional precautions.” This is mealy-mouthed: the government is not *asking*, it is *ordering*.
Vivian Darkbloom
Nov 24 2020 at 12:45pm
Ms Hermis wrote:
“I fail to find Constitutional grounds for your office or any administrative branch to whom legislative authority is delegated to issue mandates, proclamations, guidelines, or statements bearing the imprimatur of governmental authority to regulate the activity of individual citizens within private homes.”
And you replied with this:
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=GOV&division=1.&title=2.&part=&chapter=7.&article=3.#:~:text=The%20Governor%20may%2C%20in%20accordance,the%20event%20of%20an%20emergency.
The reference is to the California Code giving general emergency powers to the Governor. What you fail to recognize, I think, is that Hermis’ stated objection was that the emergency order is inconsistent with Constitutional provisions (I take it that she meant to refer to both the US Constitution and the California state Constitution). I think that it is a basic principle of our Constitutional government that the protections afforded in a Constitution can’t be taken away by statute. While the sentiments expressed in the Declaration of Independence don’t have any binding legal effect, the main issues with Newsome’s order would, I think, be with the First and Fourteenth Amendments of the federal Constitution.
I’m sure we’re not going to resolve the legality and/or constitutionality of that order in this comment section; but, suffice it to say, your response wasn’t at all responsive to Ms Hermis’ point.
Student of Liberty
Nov 25 2020 at 3:55am
You are quoting Benjamin Franklin who is regretting not to have taken a private decision.
Private decision.
Notwithstanding the very serious difference between the undemonstrated efficacy of all current restrictions imposed by governments and the smallpox inoculation (vaccine), the quote from Benjamin Franklin does not hint at imposing it to his fellow citizens but to take a decision for his son (private decision).
suddyan
Nov 25 2020 at 7:38am
[Pandemics cannot be defeated by private action.]
Wrong.
Thomas Hutcheson
Nov 24 2020 at 6:38am
Ms Hermis seems to ignore that governments have the duty to prevent one citizen from harming other citizens. If Ms Hermis goes out in public without a mask she is exposing her fellow citizens to greater risk than if when wears a mask. If she goes into a crowded bar she exposes all the other patrons to greater risk than if she does not. This harm is objective, not a matter of “comply[ing] with the desires of the most frightened members of society] and the rhetoric about the impossibility of “perfect safety” is a red herring. As for the source of the Governor’s authority to prevent Ms Hermis from harming her fellow citizens, it is the same source that prevents her from committing murder or assault.
The duty to prevent mutual harm is qualified of course by the benefits of the harm prevented and the costs of preventing it. It would be more productive, therefore, for Ms Hermis to suggest to the governor how he can prevent harm in the most cost effective means. To suggest that any measure to prevent harm is a violation of individual liberty (which is tautologically true) and therefore illegitimate will and should be ignored.
zeke5123
Nov 24 2020 at 10:20am
Nice strawman you have there — she is talking about bars, etc. She is talking about private home; not bars.
Finally, the negative externality argument proves too much. There are always negative externalities to every action we incur, including an incremental risk of death. We have, in the law, developed the idea of reciprocity of advantage. That is, there may be some small negative externalities but even if they aren’t perfectly distributed if claimant A and B concede the claims both will be better off. Not a classic example, but technically when I turn my light on in my living I create a trespass on my neighbor as I shoot small photons of light onto his or her property. But because the harm is so low and the benefit so high, the trespass is basically waived because both will benefit to be able to turn lights on.
The question here is (i) are the harms larger than the benefits, (ii) who gets to decide, (iii) who gets to re-decide (i.e., for how long is a decision valid), (iv) what side bears the burden of proof, and (v) what standard is that burden set at.
I would posit that when we don’t know much about a novel virus it is reasonable for the governor to exercise its police powers. But the powers must be limited in time, to the extent they are re-introduce it must be done through more normal processes (i.e., through legislature), and that the longer the imposition on normal life continues the burden of proof rests on those claiming to support impositions on normal life and the standard is raised. Otherwise, you risk trying to minimize the harm not realizing that perhaps the minimization efforts reduce benefits in excess of savings.
Thomas Hutcheson
Nov 25 2020 at 7:09am
Why is it reasonable for the government to exercise its police power if there is no negative externality?
Mark Brophy
Nov 24 2020 at 10:44am
She is also exposing her fellow citizens to greater risk when she drives a car than when she stays at home so she should be punished when she drives. I enjoyed the spring lockdowns because there were fewer cars on the road and driving was safer than it is now. I hope my Governor brings back the harshness of the spring lockdowns.
Thomas Hutcheson
Nov 25 2020 at 6:50am
And indeed states have a myriad of laws to reduce the risks that one driver imposes on others.
Jon Murphy
Nov 24 2020 at 11:09am
That’s not strictly speaking true. As you know, the optimal level of harm is not zero. Legislation and law prevent many kinds of injury, but not all.
Furthermore, remember that externalities are reciprocal. By preventing harm on A, you necessarily inflict harm on B. So, the choice isn’t “harm A or not harm A.” It’s “harm A and not harm B or harm B and not harm A.” As Coase (and countless others) have shown, government is incapable of making that judgement. Governments may define property rights so that people might come to their own terms of whether A or B should be harmed, but government cannot make that judgement.
Thomas Hutcheson
Nov 25 2020 at 6:55am
OK. Spell out the way that property rights should be redefined to reduce the risk that asymptomatic people have of infecting others.
Jon Murphy
Nov 25 2020 at 9:08am
Irrelevant to my point which is that externalities are reciprocal
Andre
Nov 24 2020 at 10:23am
When authorities seek to deprive people of liberty, then flagrantly violate the very rules they are using to deprive others of liberty, it makes me feel red. I want fate to brain them with a big rock.
Michael
Nov 24 2020 at 12:14pm
The problem with analogies such as this is that they don’t take into account the concepts of communicability and exponetial growth of risk.
This is absolutely true and does not depend on one’s underlying opinion on whether the November 13 orders were justified by the circumstances. Newsom’s actions undermine his stated justification for his own order.
Judith Hermis
Nov 24 2020 at 2:02pm
Thank you to everyone who took the time to read this letter and leave such thoughtful comments. I am glad we have a place where people can share and discuss opposing ideas. I look forward to carefully reading all of the comments!
Comments are closed.