America’s Legalistic Culture Is About to Become a Problem

As vaccine production and distribution accelerate, a new set of challenges around what Americans can and should demand of one another is emerging. And we’re not ready for them. The public has been told for the past year that we need to mask up, physically distance, and lock down for the greater good. Now that vaccines are here, does that same greater good mean that society can discriminate against the unvaccinated? Do Americans have a right not to get vaccinated? If so, how far does that right go?

The American discourse about rights is not up to the challenge that these questions pose. We tend to take an excessively legalistic approach that flattens conflicts over rights into a false binary: A right gives license to rights-holders; lack of a right leaves people at the mercy of the state. But this binary does not help resolve the kind of dilemmas that will confront Americans more and more as the vaccination rollout continues.

Suppose that a state or a county were to require all residents to get a vaccine, enforced by legal sanctions. Or what if vaccination were required not for everyone, but just for children attending public school? Imagine that the government says you need a vaccine before riding a city bus, boarding a commercial flight, or staying in a hotel. Suppose, alternatively, that no legal mandate exists, but all of the major airlines and hotel chains decide to impose a vaccination requirement themselves. Suppose that restaurants, beauty salons, and gyms allow only vaccinated customers access to tables, haircuts, and ellipticals. Suppose that most employers fire or refuse to hire the unvaccinated.

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These scenarios are not chimerical. Israel, which leads the world in vaccinations per capita, has instituted a “green passport” system, whereby those who have been vaccinated or have recovered from infection will be able to visit theaters, hotels, houses of worship, and other public spaces that will remain out of reach for the unvaccinated. A number of private firms have been working on creating a global certificate that can be used to similar ends around the world. (Naturally, German already has a word, impfneid, meaning “envy of the vaccinated.”)

In the United States, some businesses have begun subjecting vaccinated and unvaccinated employees to different COVID-19 testing protocols. In late spring and summer, when a majority of Americans will likely have received shots, the pressure on government agencies and private companies to widen the gap between the vaccinated and the unvaccinated will intensify.

The benefit to a safe reopening is significant, but so too is the harm to those left behind. Vaccine hesitancy has been dropping, but it will never reach zero. A small but nontrivial number of Americans generally believe that vaccines are unsafe, while others reject them for religious reasons. Some people will refuse COVID-19 vaccines because they fear an allergic reaction, or because they worry that the vaccines have not been tested on pregnant women, or because they do not trust the novel mRNA technology that the Pfizer-BioNTech and Moderna vaccines employ. Some in remote environments or distressed circumstances might not refuse the shots outright, but will be hard to reach. And no vaccines have yet been approved for children, though Phase 3 trials are in the works. Even under the rosiest scenarios, we will have to endure long periods when the coronavirus is active and circulating among the unvaccinated while many millions of vaccinated people desperately want to resume life as they remember it.

The law is a blunt instrument for this kind of problem, but it has been used before. The leading court decision on vaccination mandates remains a 1905 U.S. Supreme Court case. The city of Cambridge, Massachusetts, voted to require smallpox vaccinations during an outbreak in the area that would kill 270 people. (That’s about as many Americans as COVID-19 has killed every five hours since the pandemic began.) A pastor named Henning Jacobson refused to comply, claiming that he had had adverse reactions to previous vaccinations. Jacobson took his criminal conviction and $5 fine all the way to the high court, where he lost. “Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy,” Justice John Marshall Harlan wrote for the 7–2 majority.

That principle seems to suggest that compulsory vaccinations are legally permitted. Actually, the Jacobson precedent may not be quite so reliable; a lot has happened in constitutional law since 1905, including a series of decisions giving people more control over their body than an early-20th-century court would have allowed. Still, any differential treatment of unvaccinated people today will likely be less severe than the criminal sanctions that Jacobson faced and that the Supreme Court upheld. Forbidding unmasked passengers to board a flight is a lighter touch than prosecuting them, and the behavior of private businesses such as restaurants and gyms isn’t subject to constitutional constraints at all. The Constitution’s answer to whether someone has a right not to be vaccinated—to be “a law unto himself”—seems a pretty flat no.

Although such a “no” might be the right legal answer, something is lost in its flatness. Imagine that you’re driving your car and want to make a right turn. A pedestrian is in the crosswalk. You wait. He makes eye contact with you and, seeing that you appear impatient, decides to walk as slowly as he can. Does he have the right to do so?

Legally, yes. He has the right of way. But society can’t function if we all treat our rights this way. We tend to think of rights as individual entitlements against—even antagonistic to—the state, but rights are also, indeed primarily, social creations. Mask mandates and physical-distancing rules restrict our liberties, but they are also a means by which a self-governing people protects its rights to public health. Laws that promote gun safety, protect consumers, allow collective bargaining, and require the accommodation of people with disabilities infringe on the individual liberties of gun owners and businesses, but they also protect people’s rights more broadly.

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The idea that rights and their limits can be socialized in this way has deep roots in the United States. The Bill of Rights, which we often associate with absolute individual entitlements enforced by judges, was originally meant to empower local political and civic institutions such as juries and state legislatures and parish churches. These places, not courts, were where rights—and their limits—got sorted out through deliberation and an appeal to the common sense of the community.

This concept of rights as fundamentally communal was doomed from the start, however. The Founders envisioned self-governing communities—but their ideas of self-government didn’t include women or enslaved people or their descendants.

But the lesson that rights carry a social responsibility is worth recovering. Indeed, it is even more vital today than it was for the Founders. Pluralizing the community of people who get to claim rights means that some Americans’ rights will come constantly into conflict with others’. Not because some of us are correct about the rights we have and others are wrong, but because we are human, and therefore different from one another in the commitments we pursue and the values we hold precious. Our differences are worthy of celebration, but if we don’t account for them in our structures of conflict resolution, they will destroy us.

This means avoiding treating rights as entitlements to be awarded to some and denied to others. We should not think of rights as prizes that confer status or identity. We should instead see them as disputes in need of mediation. And mediation requires us to take seriously the swirl of interests and values at stake, even if they are not our own. In practice, if governments or businesses choose to differentiate between people who are vaccinated and those who are not, they should keep several principles in mind.

First, any disparate treatment of the unvaccinated should be grounded in public-health goals, not punishment. Encouraging people to protect themselves and others by getting vaccinated is important. But failing or refusing to get a shot, even irrationally, makes someone no less fully human or less worthy of political or moral concern. This is true regardless of one’s reasons for not being vaccinated.

Second, we should strive where possible to enable unvaccinated people to live meaningful, flourishing lives. If they do not receive a service or participate in an activity on equal terms, alternatives should be considered, whether it’s delivery or curbside pickup; outdoor or physically distanced activities or events; or remote options for work, performances, classes. Businesses and governments should aim to make these alternatives available, at least for a time, even if they are more expensive or burdensome.

Third, we should be situationally nimble. The kind of modification, if any, made for people who are unvaccinated should depend on the nature of the risk they pose, and might well vary across time and space, based on local conditions and the availability of doses. Rules that make sense for health-care workers or schoolchildren might be less fitting for diners or commuters.

Finally, these determinations should be grounded in available evidence, not speculation or legal abstractions. The complex trade-offs necessary to resolve these conflicts should not be partisan, but they are inherently political.

That shouldn’t be a dirty word, even in disputes over rights. Politics is the art of people who are different from one another figuring out how to live together. It’s been neglected for far too long.