Podcast guest: liberty and the Constitution in a time of pandemic

I joined hosts Michael Sanderson and Kevin Kinnally on the Maryland Association of Counties’ popular Conduit Street Podcast, which has a large circulation among civically-minded Marylanders and national reach as well. Our talk ranged widely over legal and governmental aspects of the COVID-19 pandemic emergency, including government’s emergency powers, and how they sometimes don’t go away when the emergency ends; the role of the courts, both during the emergency and after it ends, in enforcing and restoring constitutional norms; contrasts between the state and federal handling of the crisis; and the opportunity this provides (and has already provided) to re-examine the scope of regulation, which has been cut back in many areas so as to allow vigorous private sector response in areas like medical care, delivery logistics, and remote provision of services.

Their description:

On a special bonus episode of the Conduit Street Podcast, Walter Olson joins Kevin Kinnally and Michael Sanderson to examine the role of state and local emergency powers in the fight against the COVID-19 pandemic.

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. a libertarian think tank in Washington, D.C. A resident of Frederick County, Olson recently served on the Frederick County Charter Review Commission. Olson has also served as the co-chair of [the Maryland Redistricting Reform Commission, created in] 2015.

MACo has made the podcast available through both iTunes and Google Play Music by searching Conduit Street Podcast. You can also listen on our Conduit Street blog with a recap and link to the podcast.

You can listen to previous episodes of the Conduit Street Podcast on our website.

You can listen and download here (40:04). [cross-posted from Free State Notes] Related: Nashville radio host Brian Wilson did an extended riff on my Wall Street Journal op-ed on federalism and the virus emergency; you can listen here. And I appeared on screen as a source for a Sinclair Broadcasting TV report (see 1:45+).


  • What about people who have recovered? There is ZERO reason for them to stay quarantined–but they have to?

    • Those *known* to have recovered are only a few tens of thousands, not enough to drive public policy and certainly not enough to restart an economy for 330 million people.

      That is why we need crash development and universal access to serologic tests, to *prove* who is recovered and immune, including the millions (and in future, tens or hundreds of millions) who were infected without symptoms, or with only light symptoms. Our current leadership (both in and out of Trump’s circle) give conflicting signals, whether they are assigning this the #1 priority it deserves.

      Once we have millions proven immune, then it would be time for protocols for them to leave home and restart the economy. (1) I open with a suggestion that those exercising “immune” privileges should have to wear distinctive clothing (a red shirt or coat?) and carry on them at all times a medical certificate of immunity, presentable on demand to any public health official or cop. Said certificate would be entered into a national database, instantly verifiable by a cop with Internet access. Those falsely claiming immune status should be imprisoned for at least the 14-day quarantine period and fined $5,000.
      (2) Or perhaps the immunity certificate could have IFF capability, so that a cop could recognize it without relying on the immunity-claimer’s distinctive clothing.

      • I am not really looking at it from that perspective—does the government have an obligation to limit the impact the freedom of those that don’t need to have their freedom impacted?

        It’s hard to get to yes on that because the corollary is that our freedoms are dependent on people who aren’t necessarily doing their utmost to limit the encroachment.

    • Not zero, there are a measurable number of relapses and the ability to infect others post recovery. What we know now about “19” is how little we really know.

  • How long do you remain contagious?

  • Replace polling places with vote-by-mail?

    In the podcast, Walter favored voting by mail as a general principle, even without a pandemic that makes polling stations a contagion hazard.

    I am troubled by what would amount to the end of the secret ballot. We can imagine a Norman-Rockwellesque image of a couple at home by the fireside, discussing their choices as they fill out their mail-in ballots together. In a high-public-trust State like Oregon, vote-by-mail has indeed functioned without serious complaint. But, in harder communities, it is easy to imagine a voter compelled to vote against his conscience and/or interest by an employer, an official who controls public benefits, a gang boss, a church pastor, or the manager of a nursing home. In a harshly patriarchal society like Pakistan, a fundamentalist husband could force his wife to vote for candidates who keep her enslaved.

    (On a slightly different subject, I am even more troubled by on-line voting (advertised by West Virginia for overseas servicemen), an invitation to indetectable hacking.

    • Are you sure that voting by mail necessarily compromises the privacy of the ballot? I’ve never voted using such a system, but I had assumed that the mailed ballot was printed with a unique randomly generated identifier but not the voter’s personal ID. That would allow measures to prevent any but supervised access to the link between voter identity and the randomly generated identifier.

      The Census form I just mailed back seemed to work on such a system.

      • I see now your concern is the somewhat different one about spouses, nursing home managers, etc. getting to see ballots. Yes, that’s a problem with existing systems, including many forms of garden-variety absentee balloting. To the extent there is coercion, I would guess that we already get the worst of it under current procedures.

        • I think that it was 2008 when we got that $250 stimulus payment. My Mother lived with me at the time because of her health. Each year I would file as head of household on my taxes and then give her part of my refund. Well that year she was in a rehabilitation center because of her leg. One of the Social Workers helped her fill out the form for her to get the $250. At that time she was on pain killers and it was noted that I had power of attorney, that she couldn’t legally sign anything. When I confronted the Social Worker about it I was told that I was trying to take advantage of her and spend her money.

          So I have a real problem with the vote by mail bit in that situation. I’m not even going to go into the 2012 election.

      • … but I had assumed that the mailed ballot was printed with a unique randomly generated identifier but not the voter’s personal ID.

        The county where I reside has used such a system for several years, simultaneous with the old precinct polling places on election days.

        My entirely unscientific observations:

        Now most voters who show up at polling places only deposit their already completed mail-in ballots.

        The number of polling places is diminishing, with each polling place covering greater numbers of precincts.

        Soon the county will use vote by mail only.

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