Among the Silver Linings to The Contagion

Can there possibly be any?

Oh, yeah.  You see all kinds of articles extolling the advantages of increased home-working, enhanced rainy-day savings practices, decreased materialism, a new appreciation for the virtues of family, and, generally, Concentration on Things that Matter. 
 

All worthy.  But not of the greatest value to me.
 

On my list, at the top you will find:  The End of the Man-Hug.
 

There are cultures where man-hugs are common and accepted as a matter of long historical custom:  Russia; the Middle East; Greece.  I don't live in any of those places.
 

My dislike of the man-hug is not homophobic.  It is not a result of perplexity over my sexuality.
 

I object to the man-hug for many reasons.  Among them:
 

    --  Hugging men, rather than shaking hands, is unsatisfying.  Shaking hands communicates so very much more, at least between men, than the man hug.  Forget about grip, duration, firmness, dampness:  A handshake lets you look a man in the eye, judge the sincerity of the composition of his expression, and what that expression conveys.
 

    --  I'm not good at it.  You don't know how close to hug, how long, and you end up patting the guy on the back like you're hoping for a burp.
 

    --  It is emblematic of the overfeminization of American culture.  Oh, you don't think it's overfeminized?   Think what you want.  I do.  The feminization process was temporarily halted after 9/11 when maleness was celebrated for many reasons.  But the news cycles at light speed, and the social levelers are wearing everyone down.  We can argue about the denaturing of American culture another time, but I can't think of any other reason that this pernicious practice crept into the choreography of greeting within the last twenty years except that we're now all supposed to be as in touch with our feelings as women supposedly are, and hugs are viewed as somehow more intimate, softer and more inviting, than the handshake.  They're right, it is -- and it's a bad look for men, because, in part:
 

    --  It is evolutionarily artificial, forced.  Although men no longer compete for land, food, and babes the way they once did, we are still somewhat cautious, private creatures, always on the lookout for the one-up, the angle.  Men are naturally disposed to hold one another at arm's-length, and the handshake suits that inclination perfectly.
 

    --  Some guys are fat.  I'm not slender myself.  It's an unpleasant dance.
 

    --  I don't have hug-inspiring feelings about any man I know.
 

    --  Men encountering one another in huggie-type situations are frequently carrying something:  A gift for a hostess, a document carrier of some kind.  A six-pack.  A twelve-pack.   A gun.  Hugs are a hands-free custom.

     --  It's icky for reasons that will not occur to me until after I post this. 

    --  I have no need to check any of my friends for hidden recording devices.
 

And, of course:
 

     --  Until The Contagion is entirely behind us, a hug can kill.

 

CoolHotCenter@gmail.com

@CoolHotCenter

Finally, Congress Can Make Itself Useful During the Contagion Reopening

Here's a poser for those of you who follow things not getting much attention these days, like, oh, constitutional limitations on the power of Congress:

Why is the federal government not challenging the authority of the states to set rules with respect to the conduct of business during The Contagion?  It seems to be a given that governors (on down) have the authority to say who can be open, who can't.  Who can go to work, who can't.  Who can leave their homes to buy things, who can't.  Even Donald Trump, the latest in a long line of presidents most vividly illustrated by the last one we had, who thinks that there is no meaningful limit on what the federal government can do, finds himself in the position of "urging" state governors to accelerate reopening.

It may come as a surprise to some, but the U.S. Constitution actually sets forth the matters upon which "the Congress" may exercise power.  Supposedly, that's it.  However, over the centuries -- actually, over the last century-plus -- when faced with whether a particular Congressional assertion of authority in passing laws is before them, the Supreme Court has fastened on what is known as the Commerce Clause.  It is found in Article I, Section 8, Clause 3, and it goes like this:  Congress has the power

to regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.

I'll spare you the history and the nuances, but suffice it to say that the Supreme Court has read this phrase as authorizing any federal legislation that substantially affects interstate commerce.  That, I'm sure you can surmise, covers a lot and a lot and a big lot of laws that you would never think rose to the specificity of "regulating" interstate commerce. 

I'm not here to argue the wisdom of that interpretation or that many legislative sins have been forgiven in the name of that sweeping interpretation favoring Congressional authority.  Only that that is the current state of Commerce Clause law, and it isn't going anywhere anytime soon. 

James Madison's quote at the end of this essay to the contrary.  Sorry, Jim. 

So here's the question:

Let's assume, as seems to be the case, that there is a growing consensus in Washington (and everywhere that people breathe free, not to bias the discussion here) that a continuation of the shutdown, whatever its merits in mid-March, is -- when viewed with the best available science and numbers -- unjustifiable in late May and going forward; that the increased risk of infection and mortality is more than balanced by the need to get businesses open, get supply chains re-lubricated, get unemployment claims down, get life in general back to normal.

Again -- I'm not here to argue whether this calculation is justified, or moral, or a threat to the old folks.  It is not my intention to gig the no-economic-price-too-high-to-save-lives crowd.  I only want to consider who has the authority to act.

Go back and read that text of the Commerce Clause, and bear in mind that it is beyond current question that it authorizes any law that "substantially affects" interstate commerce, which is essentially all commerce of any noticeable economic substance.

You do not have to stretch that interpretation to see that it would plainly authorize a statute that entirely leapfrogged governors, mayors, and any other non-federal authority to require, or at least not issue orders against, reopening.  No, not even the Ninth Circuit, not even Laurence Tribe, would conclude that a federal enactment specifically aimed at attempting to reverse the slagging of the entire American economy would "regulate commerce among the several states." 

I don't know what exact shape that legislation would take.  Me, I'd add some filigree to it, like a tort-reform provision protecting employers and businesses from reopening-related liability, and I'd make it retroactive to the beginning of The Contagion.  I might build in some permissive local authority to let the local pols have some flexibility to look like they're doing something useful.  But what the law should not tolerate is gubernatorial fiat visiting further destruction on state economies.

The Tenth Amendment, sometimes urged as a hedge against federal overreaching, is not helpful to the governors here.  It provides:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. 

Doesn't work here, because the Commerce Clause describes "powers delegated to the United States by the Constitution."

If properly-tailored legislation -- that is to say, legislation that didn't have some kind of prohibited secondary purpose or purport to overreach -- were introduced in Congress aimed at ameliorating the damage to the U.S. economy caused by the reaction to the coronavirus threat, no court could declare it unconstitutional without entirely upending decades of Commerce Clause interpretation.

Which, come to think of it, would not be such a bad idea. 

So it's a win-win.

*      *     *

 

NOTE:  Now that we know the shocking economic damage done by the state-by-state shutdown orders, I suggest that the foregoing analysis would also give Congress the authority to occupy the entire subject-matter area of the conduct of economic activity during times of contagion, giving it authority to override state authority to order shutdowns in the first place.  This gets into things like the "dormant commerce clause," the ability of states to legislate in the absence of congressional intent to preempt an entire area of legislation, and other technical issues I do not propose to discuss here.



 

[PS:  I have put aside whether any legislation proposed by this administration, irrespective of its merits, could pass the House at this time.  Its mere introduction would separate those who favor the continued constraints on freedom for opportunistic and/or "scientific" reasons, from those who favor starting to bake the risks of infection and death into the economic system, as all human activities involving risk (i.e., all human activities) already have been.

 

Don't get me started on executive orders.]

 



 

 



Please consult Rules for Commenters

CoolHotCenter@gmail.com

@CoolHotCenter
 

Please share this post with interested persons.

 

How Would I Feel if a Loved One Died of COVID-19 after Re-Opening?

Some online commenters, rather a lot, say that re-opening the economy and ending enforced social distancing is wrong if it causes any increase in the mortality rate, and by the way, how would you feel if it were your loved one dying of the Great Contagion of 2020?

First, let us grant that we continue to get a pantload of conflicting information about every aspect of this disease and its management.  It is very difficult to know whether re-opening is the right thing to do.  Federal state and local officials say some smart and empathetic and cool-headed things, and some stupid and thoughtless and nonsensical things.  Our formerly ethical press has not helped matters with its poor and sensationalist reportage.  When the story of The Contagion is written, there will be the usual heroes and villains around the world.  We'll have to wait for that.

Second, let us grant that it is very appealing to think that human life is more important than money.  How much more important?  That we can think about.

We think about it every day, whether we're aware of it or not.

In fact, we do not live our lives in a way that reduces the risk of death at any cost.  We balance risk with commerce every day.

--  We don't social distance for ordinary seasonal flu. 

--  We don't drive 35 on the highways instead of 65.

--  We don't forbid the sale and use of alcohol. 

We don't do these things, and many others, because the common sense of the populace is that the risk of death and illness is outweighed by the benefits of allowing seasonal flu to take its course, driving 65 on highways, and drinking alcohol, even though the death toll from those choices is huge and could be hugely reduced with the suggested restrictions.  The risks of ordinary life are already baked into the health care system, the tax system, government spending, all infrastructure, commercial activity, and laws governing all manner of conduct, not to mention the common sense that guides us in our daily lives.

It is obvious that there is a point where as a society we must be willing to trade normal human activity (that is, the avoidance of economic collapse)  for the risk of increased mortality -- remember we're not talking about all CV deaths, only the ones that have been avoided so far by the shutdown -- that would result from the easing social distancing rules and allowing businesses to open and people to gather. 

So how would I feel if a loved one died of CV after re-opening?  Real damned bad.  But I would feel the same way I would feel if one died in a car accident going 65 when she wouldn't have died if the speed limit were 35.   We can't sacrifice a world economy for the sake of any single individual (or some number greater than a single individual), and whether any are related to you is of no moment.

Of course, there is a fulcrum at which marginal deaths -- that is the increased deaths from reopening -- are so numerous that you are willing to kill a lot of the economy for a long period of time.   What is that number?  It isn't one, and it isn't a dozen, and it isn't several hundred.  How about 10,000? 

Is it OK to have a years-long depression for to avoid 10,000 additional deaths?   Maybe, maybe.  But what about the deaths caused by the shutdown?  Caused by widespread economic depression?  Caused by civil unrest when people have had their fill of house arrest?   Today's news brings articles about hospitals suffering enormous COVID-19-related losses that threaten their continued operation.  

I admit, it's a tough call.  And it sounds awful to say it, but it is not -- marginal deaths are an acceptable price for the resumption of ordinary life. 

There comes a point at which sentiment needs to be suppressed for the good of civil society, and we have reached that point.   Re-opening should be undertaken in a sensible fashion with the full knowledge that some will be infected who otherwise would have avoided it.

And if you disagree -- you can stay home or be unemployed if it suits you. 

That's part of civil society, too.

Please consult Rules for Commenters

CoolHotCenter@gmail.com

@CoolHotCenter
 

Please share this post with interested persons.