June 7, 2021
By Timothy Sandefur

If there’s one lesson the pandemic has made abundantly clear, it’s that one-size-fits-all government mandates are never the right solution, particularly when those mandates impact private property and businesses. Because politicians are fallible human beings, government mandates are often misguided and counterproductive. That’s certainly been proven in the past eighteen months—which revealed instances of government withholding approvals of safe medicines, overtly lying to the public for the “greater good,” forcing nursing homes to take actions that ended up costing many lives, and forcing businesses to abide by mask mandates, curfews, and occupancy restrictions.

For example, politicians in Tucson imposed a senseless and illegal curfew, the governor of California adopted a complicated and ever-changing list of restrictions on businesses—despite the fact that they were operating safely—and the governor of Michigan banned the sale of car seats, and ordered the closure of certain sections of department stores. Arbitrary and broad-based mandates like these—that take no consideration of local circumstances or the particular facts of a particular business—don’t enable people to decide for themselves what risks are worth taking, and therefore transfer the power to decide from people to bureaucrats. 

But bureaucrats don’t answer to customers—they’re paid whether or not they get the answer right. That lack of incentive means that instead of competing to innovate, they typically try to freeze things in place by imposing what they consider the “one right way” of doing things—even when the evidence is incomplete or nonexistent. That’s how you get things like rules forbidding the use of rapid testing for COVID, or bureaucracies halting the distribution of safe vaccines in ways that scare people away from using them. In medicine, as in many things, the best solutions arise from letting adults negotiate with each other, come up with new alternatives, and bear the responsibility for their own decisions.

The same principles apply to questions about medicine and health. Recently, a Florida-based punk band called Teenage Bottlerocket made news when they announced that ticket prices for their next concert would be $18 for people who have been vaccinated against COVID-19—and $999 people who have not. “I wanted to get the kids that want to go to shows to go out and get their shots,” the band’s promoter told ABC News. The idea doesn’t technically violate a new law forbidding businesses from requiring, or even asking, their workers or customers to be vaccinated for COVID-19—but it does illustrate the silliness of such measures. If a music group wants the audience to be vaccinated to attend a performance, that’s their right. And if audience members prefer not to, they have the right not to buy tickets.

Likewise, property owners have every right to allow customers to enter their property without masks, and on the other they can insist that people be vaccinated before entering their property—just as they have the right to require that people take off their shoes before entering, or wear shirts, or watch their language. The entire concept of private property is that owners are entitled to exclude people from their own property for any lawful reason.

This right is a fundamental part of what it means to own something. If others can insist on access to your land on their own terms, then it’s not really your land—just as it’s not really your book or your car if somebody else can use them whenever they please. But this right to exclude is also socially beneficial. It encourages people to take care of their property and to respect the property rights of others, which reduces the risk of conflict. In a society where people can trespass on each other’s land at will, people are more likely to argue, leading to resentment, confrontations, and even violence. As the old saying has it, “good fences make good neighbors.”

Rules requiring respect for other people’s property also allow for diversity: People who think they have a better way of running things can do so on their own land without interfering with their neighbors, who can do what they prefer with their own. If a restaurant owner prefers to require patrons to wear suits and ties, diners can choose whether they prefer that fancy atmosphere, or whether they’d rather go to a more casual restaurant. Respecting the rights of business owners to decide for themselves helps create a society with different kinds of restaurants serving different customer tastes.

When government takes this freedom of choice away by imposing one-size-fits-all mandates on people, the fundamental right of property ownership is damaged. Our constitutional system rests on the principle that people own their own lives and their own property and have the right to decide for themselves whether to wear a mask, go into a restaurant, take a vaccine, or send their kids to a particular school. 

Allowing people to make informed decisions for themselves, weighing the relative risks and benefits, and find new ways to tackle the challenges life presents us, is the best path to finding better solutions, and to living lives that are safer and freer. 

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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