Is the Presumption of Liberty Ironclad?

Caveat: Hair-splitting ahead. [I think that the “hairs” split here are large and important.]

Dear Don,

I avidly applaud your recent.

I agree fully with your main line of argument: We should be upholding a presumption of liberty and lockdowners have not endeavored to meet the burden of proof.

Just two points, which don’t matter to your main line of argument.

First, your correspondent writes: “When the evidence is strong enough, one freedom may have to be impaired temporarily to protect another freedom.” You and I agree with that. (Michael Clark and I have written a couple of papers on it, formulating the issue as disagreement between “direct liberty” and “overall liberty.”)

Your post doesn’t comment either way on what I’d like to point out: For any normal scenario, like the way that the flu or a cold happens to be transmitted at a restaurant or bar, I do not see catching Covid as an incident of coercion. If Jim goes to a bar, happens to pick up the virus, and then meets his grandfather who then gets it from Jim, I would not say that coercion has occurred. Thus, even if a lockdown on the bar would have meant that grampa is never infected, that would not, in a CL sense of liberty/freedom, be protecting a freedom of grampa’s. Yes, it would be a benefit to grampa; yes, it would protect the well-being of grampa, yes under some (unrealistic) conditions it could justify locking down the bar, but it is not a freedom differential. In a CL sense, winning the lottery does not augment my freedom. (If I can use that lottery $ to somehow reduce the coercion applied to me, perhaps we may say that in an way that winning the lottery augments my freedom. But that doesn’t undo the important sense in which merely winning the lottery does not augment my freedom.)

But the main thing in your post that made me think was your sentence:

“What is ironclad for me is starting with this presumption, one that imposes the burden of persuasion always on those who would restrict liberty.” [your italics]

What does it mean for the presumption of liberty to be ironclad?

Put differently, what would it mean for the presumption of liberty not to be ironclad?

I suggest that saying that the presumption of liberty is ironclad is either redundant or wrong. (I leave aside issues of how high the burden of proof is, how that burden may be affected by other circumstances such as the status quo, and so on.)

Redundant: If “ironclad” refers to the domain of treatments within which the presumption is defined, then it is redundant. It is saying that the presumption is to be upheld in the set of treatments in which it is to be upheld. If in Virginia on December 20, 2020 you uphold the presumption of liberty, which is defined to apply to a set of days and experiences in Virginia including all days and experiences of the entire month of December 2020, but on the previous day, December 19, 2020, you did NOT uphold the presumption of liberty, then there is an important sense in which you cannot say you upheld such presumption on December 20, even though on December 20 you did demand an argument purporting to meet the burden of proof. The presumption you claim to hold on December 20 was made unviable on December 19. Unless you redefine the “presumption” in some bizarre way, you cannot say on December 20: “I uphold the presumption throughout all of December, just not in an ironclad way.” The presumption is defined by the domain it is to work within, and if not ironclad there, then it is not there at all. “Upholding the presumption” is a statement about that entire domain, just as an average is a statement about the entire set of observations it purports to be the average of. If the presumption is upheld, to say that it is ironclad within that range seems redundant to me.

Wrong: If “ironclad” means universally, to all human experience, to all treatments, not some domain that is a strict subset of all human experience, then I think it is wrong. In particular, I don’t think it worth maintaining that the presumption of liberty goes even for human experiences outside of where our conceptions of “liberty” and “restrict” are broadly grammar-like (“grammar-like,” that is, relative to the rules of virtues other than commutative justice). I think that our conception of liberty has achieved grammar-like coherence only within the era of the jurally integrated nation-state. (My point here relates to a reply I made to Deirdre.) If we were dropped into the Carolingian empire, or ancient Greece, or indeed any time of the primeval band (99%? of human experience), I don’t think we would tell each other that people need to understand that they should maintain “the presumption of liberty.”

I don’t think that either point here affects your main line of argument. There I fully concur, because I read it as contextualized to the modern jurally integrated nation-state.

Best,

/Dan