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S7 E4: Todd Zywicki, The Rule of Law and Threats to it
5 Plays1 year ago
Todd Zywicki is the George Mason University Foundation Professor of Law at George Mason University’s Antonin Scalia School of Law. He is also the Visiting Scholar in Conservative Thought and Policy here at the Benson Center. He previously served as Chair of the Consumer Financial Protection Bureau Taskforce on Federal Consumer Financial Law, Chair of the Association of American Law Schools Section on Law & Economics in 2019, and Director of the Office of Policy Planning at the Federal Trade Commission. We discuss the rule of law, its importance to economic development and western civilization, and the threats it faces in our society today.
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Transcript
Introduction to Free Mind Podcast
00:00:01
Speaker
Welcome back to the Free Mind podcast, where we explore topics in Western history, politics, philosophy, literature, and current events with a laser focus on seeking the truth and an adventurous disregard for ideological and academic fashions.
Guest Introductions: Matt Burgess & Todd Zwicky
00:00:15
Speaker
I'm Matt Burgess, Assistant Professor of Environmental Studies and Faculty Fellow of the Benson Center for the Study of Western Civilization at the University of Colorado Boulder.
00:00:25
Speaker
My guest today is Todd Zwicky. Todd Zwicky is the George Mason University Foundation Professor of Law at George Mason University's Antonin Scalia School of Law. He is also the visiting scholar in conservative thought and policy here at the Benson Center. He has served as chair of the Consumer Financial Protection Bureau Task Force on Federal Consumer Financial Law, as chair of the Association of American Law Schools Section on Law and Economics,
00:00:49
Speaker
and as Director of the Office of Policy Planning at the Federal Trade Commission.
Focus on Rule of Law and Economic Development
00:00:53
Speaker
We discussed the rule of law and its importance to economic development in Western civilization and the threats it faces in our society today. Todd Zawicki, welcome to the Free Mind podcast. Hey Matt, great to be here.
00:01:06
Speaker
Yeah, so we're going to talk about the rule of law today, which seems like a dry esoteric topic, but I would argue that it's one of the most important concepts to understand both in development and also one of the most precious aspects of our Western civilization. Would you agree?
00:01:26
Speaker
I would agree, and some evidence of how precious it is to people is the fact that even though we've traditionally thought of it as a very dry subject, every time you turn on the news or open the newspaper today, we see people talking about the rule of law. We see it, whether it's the prosecutions of Trump and whether that is vindicating or violating the rule of law, whether it's the matters involving a Hunter Biden. There's obviously a sense in which the rule of law matters to people. They know what it is.
00:01:54
Speaker
Are they know that matters but they're not was quite sure what it is okay so let's take it back a little bit before we get into the current events.
Defining Rule of Law
00:02:03
Speaker
Aspects of this just in a basic way what is the rule of law and why is it so important to economic development and generally the well-being of an advanced society.
00:02:15
Speaker
The rule of law is the idea that when the government acts against somebody, when the government coerces you, the rule of law says that it should only do so when it announces its rules ahead of time and applies those rules equally to all citizens. And the great accomplishment of the rule of law in the Western world is the idea that the government itself is under the
Importance of Rule of Law in Economics
00:02:41
Speaker
rule of law.
00:02:41
Speaker
that unlike historically where kings were thought to be above the law, for example, the rule of law is that really the linchpin of freedom in the sense that it says that the government derives its powers from the law and that the legitimacy of the government's powers
00:03:00
Speaker
are just only when they act in compliance with the law. And what we've seen is that this then is really the key buttress for individual freedom. If you look at the Constitution, for example, both explains how the government is allowed to act and they can't act in an arbitrary manner, preserves individual liberty through the Bill of Rights and the like.
00:03:24
Speaker
And it is really important for economic development because it allows people to make plans and see those plans through to fruition. So you mentioned freedom and you mentioned prosperity. I think the prosperity thing makes a lot of sense to people. Investment is an enormously important part of development. Investment is basically paying a cost
00:03:50
Speaker
for some future benefit. And if you have large uncertainty about the security of your property rights, expropriation, drastic changes in some kind of law or policy, it's harder to invest and therefore harder to be prosperous.
Governments and Restrictive Rules: Is It Just?
00:04:05
Speaker
The freedom thing may seem intuitive, but I want to unpack one thing about it. And that is, you know, the rule of law is just that the government makes rules and they write them down
00:04:16
Speaker
and they stick to them and they apply them equally to everybody. What's to stop the government from just having really restrictive rules? Couldn't they still have that within a framework that would fit the definition of the rule of law? Or are they really intertwined?
00:04:29
Speaker
And this is, Matt, where the debate gets joined with respect to what the rule of law actually means. So for philosophers, often what you'll see is what you say is accurate, which is that the rule of law has no inherent justice to it or any notion of individual
00:04:50
Speaker
liberty, they say so long as there is some formalistic nature to the rule of law that that's okay. But I think when you look deeper at particularly the Anglo-American tradition, but the tradition of the Western world generally, what you see is that the rule of law, as it's been articulated by say Hayek and Michael Oakeshot, that the rule of law really is in some sense an organizing principle of a free society.
00:05:17
Speaker
And Hayek in particular made the point that the rule of law kind of only makes sense in a world that is premised on individual liberty, where people have the ability to form their own plans. So, for example, he compares it to the traffic rules, which is the rule of law essentially tells you how you got to drive on the road, but it doesn't tell you what exit to get off of.
00:05:41
Speaker
And something that goes beyond that, that starts trying to direct people in particular directions and that sort of thing and subordinates people to the will of the government, inherently becomes problematic for the rule of law. So back to your traffic example, is there some presupposition in what the government's limits should be and the philosophy you just articulated that has to do with
00:06:09
Speaker
the degree, you know, limiting freedoms only in so far as that's required to safeguard other
COVID-19 and Rule of Law: Emergency Powers
00:06:15
Speaker
freedoms. So, you know, we don't let people drive on the wrong side of the road, because if we did, that would limit many more other people's freedoms to drive safely, right? Whereas telling people what exit to get off at doesn't necessarily make
00:06:30
Speaker
anyone else more free or prevent an infringement on other people's liberties, you know, unless there's some rare case, like we need to build something of that accident. So we're temporarily closing it.
00:06:39
Speaker
Essentially what they do in that sense is they essentially suspend the rule of law, which is the opposite of the rule of law is a discretion by the government, which is the ability of the government to discriminate, and as Hayek would say, to basically organize society to advance some particular plan. So you could talk about closing an exit, but a more classic example is during times of war, right? Where during a time of war, you will often see the government
00:07:09
Speaker
kind of suspend the rule of law or during other crises. Now, whether that's always justified, I think, is questionable. Clearly, one premises to the extent that the government feels it's necessary to suspend the rule of law, it should be done as mildly and as temporarily as possible. And so what we saw, for example, during the COVID,
00:07:30
Speaker
years was this huge grant of emergency powers to the government and basically the just sort of willy-nilly making up new rules, new executive mandates that would change from day to day and really the will of governors or an executive largely unchecked by democratic process or sort of standard mechanisms for making laws such as bicameralism
00:07:59
Speaker
deliberation and the like. Okay, so let me revisit and maybe reframe that example of COVID. Because as I understand it, the COVID restrictions and government interventions were controversial among the masses, among the general public, more so because it seemed like in the view of critics, they got the cost benefit analysis wrong, then because of some deeper
00:08:27
Speaker
philosophical critique about the rule of law.
Public Reaction vs. Philosophical Critique
00:08:30
Speaker
So for example, the hypothesis for long-term school closures was that we would not have a huge impact on education and we would have a huge impact on mortality.
00:08:45
Speaker
It seems to me that the main reason people are pissed off about the long-term school closures is that basically the authorities got that backwards in terms of what the evidence we're seeing now, that the impact on death and on transmission for kids, and same thing with masking for really little kids. It didn't seem like it had a big effect on the adverse outcomes of COVID, and it seems like it had a huge effect on children.
00:09:08
Speaker
Am I getting that right? Or is there some deeper philosophical critique related to the rule of law that should take precedence? The answer is yes, you're getting that right about what the public believed, but also there's a deeper philosophical point wound up there. And so let me address both parts of that. The first is that I think that what your example points out is that voters tend to, citizens tend to focus on
00:09:36
Speaker
short-run sort of pragmatic responses to things, which is one reason why the government is able to see so much emergency powers during what they can perceive or claim to be a crisis. But what ends up happening in those situations is that once you get the government acting, number one, the government tends, once they get power, they tend not to give it up.
00:10:03
Speaker
And we just saw this, for example, this week, if people have been following what happened in New Mexico, where the governor of New Mexico has basically tried to declare an emergency that would, for gun violence, that she is basically using the justification of her COVID emergency powers to basically suspend the Second Amendment to see essentially what she's doing. So emergencies tend to become
00:10:29
Speaker
extended, government, once it gets power, tends not to give it up. The second thing we see is that once you make an exception for an emergency, it tends to become the precedent for the next emergency. So let me explain, which is that back during 9-11, the government claimed the need to take emergency powers for national security reasons and did all sorts of things.
00:10:54
Speaker
A lot of the things they did during in response to 9-11 became precedents for how the government responded, particularly in financial markets, during the 2008 financial crisis.
00:11:05
Speaker
In turn, all the things the government did in the name of emergency powers during the financial crisis became the precedent for a lot of the things that the government did, particularly in financial markets and the like, during the COVID
Long-term Implications of Emergency Powers
00:11:18
Speaker
crisis. And so the point here is, yes, citizens usually respond in the short run to these sorts of concerns, but what the rule of law says is
00:11:30
Speaker
We need to be concerned about the long run as well. We need to be concerned about preserving the overall institutional structure and the regularization of government, precisely in part because the government itself will often look to expand its powers and to make exceptions to the rule of law. And oftentimes they'll be joined by powerful special interest groups who want to do the same.
00:11:56
Speaker
And so I think that one of the lessons we learned from the rule of law is the, and the focus on the rule of law is the importance of thinking about these long-term principles and not just focusing on the short run concerns, which is I think you accurately state is what most people focus on. Okay. So let me try first a friendly rejoinder and then a steel man.
00:12:22
Speaker
On the side of friendly rejoinders, you're making this argument from a perspective that some people would identify as conservative, and yet it has strong parallels to arguments that people like Naomi Klein, for example, have made in her work, The Shock Doctrine, from the left about the same kind of thing, right? And in fact, 9-11 is an example of something that is often criticized from the left of the post 9-11 Patriot Act type powers.
00:12:46
Speaker
At least in an abstract sense, there are thinkers on both sides of the divide that think about rule of law in the way that you do. Now the steel man, let's talk about cases where many people at least would argue that the short-term incentives, the government got right. I think those cases are instructive for separating
00:13:07
Speaker
that concern from the conceptual concern about the long-term and the rule of law. So starting with World War II, I believe there was a draft in World War II. There were price controls. There was the Defense Production Act. Correct me if any of this is wrong, I'm not a legal scholar. There were government interventions in the economy and in the day-to-day lives of Americans that I think it would be fair to say were much more extreme than anything we've seen in my lifetime. Would you argue that any of that shouldn't have been done?
00:13:36
Speaker
I'll say two things. First, the rule of law is just one of the virtues we may want to have in society. What I want to emphasize is that we should not be indifferent between the rule of law and just government by discretion, government by sort of arbitrary decision making. There's reasons why
00:13:58
Speaker
We want to organize our society around the rule of law. And if we're going to make exceptions, we should make the exceptions very clear, as narrow and as temporary as possible, and be very clear about how we're going to end those exceptions. So one of the things we saw with COVID and one of the things we see is happening now is that it was something that was different from what we'd had in the past.
00:14:21
Speaker
There were grants of emergency powers to a lot of governors and the like, but people hadn't really thought through the exit strategy. And so what we see now is because of the abuses of many governments with respect to emergency powers, now we're going back and the legislature is trying, in these various states, is trying to reestablish
00:14:43
Speaker
sort of orderly processes redefine the emergency powers of governors, basically in the executives, basically because they abused their power in the way that they did. So that there's nothing inherent in the rule of law that says that
Historical Lessons: Korematsu Case
00:14:58
Speaker
certain actions in times of emergencies, for example, such as the ones you describe, those can be permissible, right? Now, having said that,
00:15:09
Speaker
you give the examples of perhaps the benign process, the way in which the government during a time of war might seize industrial production, that sort of thing. But remember, the same principle that sustains that was the same principle that sustained the government's action in just rounding up Japanese Americans and in turning them indefinitely
00:15:34
Speaker
internment camps with no due process, no individualized suspicion, right? And that was upheld as a national emergency, this extreme violation of civil rights. We see this going on right now with litigation coming out of Louisiana, just appealed to the Supreme Court, where the White House was essentially saying that the COVID crisis and
00:16:01
Speaker
sort of generalizing the principle that the COVID crisis allowed them to engage in essentially coercion of social media companies in violation of the First Amendment, according to the Fifth Circuit, because needed to suppress misinformation and the like. So as soon as you open that Pandora's box for good discretion, you also open the Pandora's box for things like Korematsu and other sorts of issues.
00:16:29
Speaker
I'm really glad you brought up the internment example because that's a very compelling example. I think a lot of people would argue that Defense Production Act, that even the draft may have been necessary to defeat the Nazis. I think we'd be very hard pressed to find somebody today who would argue that internment was good.
00:16:46
Speaker
So can the rule of law offer us a solution to that? Is there a way to write a law that codifies the distinction between those two types of cases and those two types of justifications?
00:17:00
Speaker
I think there is, but there's two aspects of it, right? Which is first is we have to be clear-eyed about the threat, right? What often ends up happening here is, as we've seen, you know, 9-11, as we've seen during COVID, is that there's a lack of appreciation
00:17:18
Speaker
for the degree to which the grant of powers to the government can be abused, both by the government itself, as well as, as I mentioned earlier, special interest you may have something to gain, obviously not in the determined example. But what we've seen during the financial crisis, as we saw during the COVID crisis, there are a lot of people who made money off of these things to be frank, and they liked what the government was doing. So I think the first thing you have to do is
00:17:48
Speaker
You can't just give a blank check to the government. And number one, number two, you could have expedited processes for this. But there's still a need, I think, to try to follow regularized orders, such as a somewhat careful legislative process, for example.
Courts as Safeguards of Rule of Law
00:18:09
Speaker
you know, during the financial crisis, it was kind of chaos, right, in terms of all the, the bank bailouts and that sort of thing. But the third thing, and I think perhaps the most important is that this is where the courts need to stand up. This is where the last line of defense are the judges are the courts and they need to be supervising. And I think in my view, courts
00:18:33
Speaker
have been very deferential to these claims of emergency powers. And they have been unwilling to cabin the claims of emergency powers by governments, either in terms of their scope or in terms of their timing. And so I think somewhere in there needs to be some check
00:18:54
Speaker
on the desire for the government to expand its powers and to claim an indefinite extension of powers over time. And the court seemed to me to be the ones who are the last line of defense for that.
00:19:08
Speaker
Let me ask a follow-up about that. It seems like the court's job is to interpret the law, which means that they'd have to, in order to get the balance right that we were talking about earlier, there'd have to be some law written down by Congress or somebody else that allows them to do that. So let's go back to the World War II example. On what legal basis might a forward-thinking court have, say, allowed the draft in the Defense Production Act, but not allowed Japanese internment?
00:19:38
Speaker
Yeah, so you mentioned law, but obviously the Constitution matters as well. And if you read the opinion in Korematsu, the Japanese Determinate, it's really a pretty embarrassing opinion and it's really a dark spot for the United States. And the background to this is really pretty creepy, which is
00:20:00
Speaker
The way, you know, what we really see has arisen over the past century or so is a conflict between really, frankly, sort of the progressivism that started a century ago and the idea of expert management of government versus kind of the Constitution and individual liberties. And this goes back first to upholding the compulsory vaccination back in 1906. But then what we see is in a case called Buck versus Bell,
00:20:30
Speaker
which was a case in which states had started passing eugenics laws that allowed forcible sterilization of people who were declared mentally unfit, basically, by the government. Through processes, they were upheld, and they said there was constitutional. By an eight-to-one vote, Oliver Wendell Holmes writing this
00:20:50
Speaker
famous opinion where he said three generations of imbeciles are enough. A principle that is broad enough to support compulsory inoculation is clearly broad enough to support time to fallopian tubes. And he drew his
00:21:07
Speaker
basis for that on the case allowing the mandatory smallpox vaccination. Now, why do I go back that far? Because that logic that Holmes relies on in that case is the logic is all the medical consensus at the time was eugenics.
00:21:24
Speaker
The medical consensus at the time was that for the good of society to get rid of so-called social externalities, the government should have the power to forcibly sterilize people. That's the principle then that then upholds in Korematsu. And a lot of the other problems that we've seen over time is, again, we saw during the COVID crisis, which is who are we as courts
00:21:49
Speaker
to try to weigh individual rights and individual liberty against what the experts tell us is necessary for the good of society. And I think that's just an abdication of the judicial role. That's the abdication of everybody's role to take individual rights seriously, even in times of crisis. And so, yes, it requires some
00:22:10
Speaker
I think, pragmatic and prudential judgment to draw those lines between the draft and just sort of rounding up Japanese with no, you know, individualized assessment of their potential guilt. But I just don't see that in a free society we really have any alternative, but for courts to actually try to stand up for individual liberty in the times when it's most, in the Constitution, when it's most important.
Societal Belief in Rule of Law
00:22:39
Speaker
Really powerful examples there which i think raise the question of to what extent is the rule of law always going to be limited much more severely than people think by the norms the prevailing norms of the time you know have a good or bad.
00:22:55
Speaker
So if people have these kinds of views that today we would rightly recognize as repulsive about eugenics and about race and infirmity and whatever, can we as a positive matter, meaning like a non-normative matter, as a matter of empirical prediction, can we really expect that if we write the law in a kind of perfectly magic way, that someone with the wrong norms isn't going to find a way around it?
00:23:25
Speaker
And that's the big point, Matt, which is in the short run, we can rely on institutions and structural protections like Constitution, courts, and the like. But hang on, in that case, I thought that the lesson was we couldn't. Well, yeah, I mean, in theory, right. It's even worse if the courts don't do it.
00:23:44
Speaker
But in the short run, at least, yes, we need to count on the courts. But what really matters, and I think what you're putting your finger on now, Matt, is there has to be a belief in society among the public at large in the general importance of the rule of law, that there are ways to do things, that there is an overarching value
00:24:06
Speaker
and the importance of the rule of law and preserving the overall integrity and structure of a free society, that there just has to be a belief that we support the rule of law, that we as citizens see the value in using these processes even when they frustrate us in the short run. And so we don't make exceptions to the First Amendment just because we don't like what people are saying, whatever the case may be.
00:24:32
Speaker
That requires something deeper and a commitment in society. So one of the things you see when you look at, for example, the concept of the rule of law was really articulated by a guy named A.V. Dicey in England beginning in the late 19th century.
00:24:47
Speaker
What Dicey says is that Britain was unique at the time. Britain and Britain offshoots like the United States were unique because there was this spirit of legality, the spirit of the rule of law, that people felt like that this was an important value and that that distinguished the Anglo-American world from the rest of the world.
00:25:11
Speaker
and that that then was instantiated in the common law and the like. And I think that's really what it requires because there will always be demagogues, there will always be politicians, and there will always be people like that who are ready to jettison the rule of law because they can promise some short-term benefit to some
00:25:32
Speaker
group, but once you start doing that, you run the risk that everything is going to unravel, which is to some extent my concern of where we're headed right now to some extent in this country. The United States seems like it's especially, the Madisonian constitution is especially robust to this kind of thing. Even in Britain and Canada, for example, and I'm from Canada, I forgot if I mentioned that,
00:25:57
Speaker
A lot of our free speech policy is much more of a tradition than a policy. And there's some even more extreme examples, right? So we have a governor general who's the figurehead, the Queen's representative, or the King now, sorry, his representative in Canada. And the governor general has, on paper, much broader power than the average Canadian would understand.
00:26:22
Speaker
but also powers that they have pretty much never used at least in since i've been alive but there is there's a you know kind of non madison and weakness right in our system that way and certainly,
00:26:33
Speaker
uh, some contemporary debates around free speech and around non-discrimination in Canada are looking at that, right? So for example, you know, in the U S after the recent affirmative action decision that came down this past summer, there's been some controversy and consternation over the fact that many universities have signaled publicly that they intend to not follow the spirit of the rule, right? That they basically, they, they want to try to find some way to get around it.
00:26:59
Speaker
And this is not really a new phenomenon. I mean, everybody talks about DEI statements in hiring, for example, in universities as a free speech issue, which it is. But few people talk about how the origin of DEI statements in faculty hiring comes from California as a way to get around Proposition 209, which was their anti-discrimination ballot measure that passed in the 90s. In Canada, it's actually not illegal to discriminate as long as you're doing it in the so-called correct direction.
00:27:26
Speaker
So, you know, if you look at, for example, you know, go to university affairs.ca, which is where they post faculty jobs in Canada. And Canada has this thing called Canada Research Chairs, which are, you know, prestigious faculty positions, basically, that come with a kind of like an endowed chair from the federal government.
00:27:43
Speaker
And I think it's a little bit more than half of the ones that are posted right now that have an explicit restriction in who can apply on demographics. In every case, it's no able-bodied straight white men. And in some cases, it's even more restricted than that.
00:27:58
Speaker
And similarly with free speech, right, there's a whole controversy around the truckers, you know, and their speech rights and bank accounts and et cetera, where, you know, it's possible that the Trudeau government went further even than the law allows. But I think many Americans were sort of surprised at how much actually the law allows if you sort of look at the letter of it.
00:28:15
Speaker
Am I right that that's a positive attribute of the United States system? For example, if you take the modern controversies around social media censorship, around non-discrimination, it seems to me like you could make an optimistic case from the perspective of rule of law that eventually the courts are going to sort those wrinkles out.
00:28:38
Speaker
Yeah, I think that's right. I'll say first, which is what we've seen over the past few years is pretty egregious violations of the rule of law, whether it's this First Amendment censorship case, whether it was
00:28:55
Speaker
sort of the blatant defiance of the Supreme Court when it struck down the sea, when it originally temporarily upheld the CDC's so-called eviction mandate, moratorium.
00:29:10
Speaker
and the Biden administration just reauthorized it and basically dared the Supreme Court to strike it down, which they did, whether it was that massive student loan bailout that they tried to do, knowing they had dubious legal authority, whether it was the overreach of the vaccine mandate via OSHA. In each of these situations, the courts have stepped in
00:29:33
Speaker
and they have been willing to stand up for the rule of law. And I think that's a very important point, which is that the institutions matter. The institution of the independent judiciary matters to try to check these government overreaches. And there's a lot sort of back and forth going on now between the courts and particularly this administration and this administration sort of
00:30:01
Speaker
using the administrative state and then runs around the democratic process to accomplish a lot of these goals. So that is not to be dismissed, the importance of constitutional culture in the United States. But I think your question points to another larger point, which is over the long arc. What does seem to matter in many ways is history. What matters is a commitment of a society, the rule of law. Now, obviously in the United States,
00:30:28
Speaker
One of the reasons we're so vigilant about equal protection on race is we fought a civil war over that. During the case you mentioned in the Supreme Court, the Fair Admissions case, the lawyer for Harvard, for example, was talking about giving preferences for oboe players. If the orchestra needed an oboe player, to which Chief Justice Roberts responded, we did not fight a civil war over oboe players.
00:30:54
Speaker
So that history matters in a lot of these things. And this was one of the things that I'm teaching this class on the rule of law this semester. One of the things that comes out of dicey, but one of the things that I've emphasized when I've looked at this is this point about history. And so, for example, Edmund Burke has this wonderful speech.
00:31:14
Speaker
called a speech on conciliation with the colonies. And it's always kind of perplexed a lot of people because, while he's critical of the French Revolution, he was largely praising of the American Revolution. In part, his argument was it's futile to try to, at this point, try to put the genie back in the bottle for the United States. And his arguments have very little to do with natural rights.
00:31:40
Speaker
What they have to do is with the unique history of the colonies and the spirit of liberty that that imbued in the American citizens. So, for example, he talks about the extreme distance across the ocean, got the American colonies used to governing themselves. He talks about, for example, fascinating disquisition on slavery, where he says in
00:32:05
Speaker
the American South, living with slaves created this sort of, might seem perverse, but also this great spirit of liberty among those who were not slaves, to not be treated like slaves, like the British government. In the North, it was basically settled by all these religious dissenters who were basically troublemakers, you know, were hard to tame. And then, funny enough, and sort of warm in my heart, as you said,
00:32:31
Speaker
The other thing with the United States is it's a nation full of lawyers. And lawyers, he says, see the principle inherent in the evil, which is he says lawyers can anticipate where the slippery slope is going to go. That this one little exception, this one little incursion on liberty can create a precedent, as I was saying earlier, for a whole train of subsequent abuses. And so one of the things he draws is a distinction between the United States and
00:32:58
Speaker
France is the United States at that point had liberty, was used to governing themselves, had this sort of history and that's something that comes out of dicey then when he turns the same focus on the rule of law and he says the rule of law is operative on the ground in England and the United States.
Legal Frameworks: Paper vs. Practice
00:33:19
Speaker
The rule of law exists because individual citizens bring individual disputes that are litigated and decided by courts in a concrete fashion
00:33:28
Speaker
as opposed to being sort of abstract rights that the government grants to people. And I would suggest an example would be, say, the glorious Constitution and Bill of Rights of the Soviet Union, you know, which the Soviet Union had a great bill of rights. They guaranteed freedom of religion and freedom of press and, you know, all kind of great things. But it didn't do a lot of good because obviously the Soviet Union had neither the institutions nor the spirit of the nation.
00:33:57
Speaker
to actually vindicate those rights, that individual liberty, and to instantiate anything that looked like the rule of law. So let me push you a little bit on that actually, because my experience as a Canadian is that if you go to other Western countries and describe the United States as a nation of lawyers, people will agree with you, but not in a way that is intended to be flattering.
00:34:20
Speaker
And so for a specific example that I think conservatives are fairly sympathetic to, and many liberals in the context of climate change, it takes almost a decade on average to get a federal NEPA permit for cross state transmission line, right? And if we don't drastically accelerate the rate at which we build transmission lines, we're never going to come close to meeting
00:34:43
Speaker
anybody's targets for decarburizing, be that the Paris targets, be that the Biden administration's general targets, be that the Inflation Reduction Act projections. As I understand it, one of the reasons it takes NEPA so long to approve things is that they have to make their reviews airtight against frivolous litigation, which happens frequently. What would you say to that?
00:35:05
Speaker
Yeah, so I think you put your finger on an important point, which is what I was talking about was making a general point about history matters. And I think supporting your point that the rule of law fundamentally doesn't look that much different in Canada from the United States.
00:35:22
Speaker
We may have seen some more egregious behavior in Canada than in the United States, less of an independent court. But over the long arc of history, what seems to matter in, say, the United States and Britain and Canada and a lot of other former Commonwealth countries is a spirit of the law. That's what I was speaking to, is that the courts are part of this. Our Constitution is part of this. But there's also just sort of a sense among the citizenry of what some
00:35:50
Speaker
Now, you're pointing to a different point, which is, and this is a point that I've emphasized, and I think where the philosophers need to listen more to the economists. And one of the problems, I think, with the way the rule of law gets discussed is it's kind of been taken over by the philosophers who want to have kind of abstract theories about did the Nazis have the rule of law and stuff like that.
00:36:15
Speaker
That's fine. If you want to have that discussion, then that's fine. But what I think that is lacking is the lawyer's view of the rule of law and the economist's view of the rule of law. Why do people care about the rule of law? They don't care about it because it can be some sophomore discussion in the dorm about whether Nazis had the rule of law. Why we care about it is because we feel like it matters to our everyday life. It matters on the ground. And so when you ask lawyers about the rule of law,
00:36:45
Speaker
they think about these sorts of things are economists right and so why does that matter because i think your example is a good example which is about the nipa permits and all that sort of thing and this is something we see as we look around the world which is that it's a well understood that for the rule of law to pertain
00:37:06
Speaker
you have to be able to physically comply with the law, right?
Regulatory Challenges to Rule of Law
00:37:10
Speaker
So if you are required to hold your breath for 15 minutes in order to get a license, everybody would say that violates the rule of law. Yeah, it's a general rule. Yeah, it's announced in advance. But if you can't physically comply with that rule, then it's not consistent with the rule of law. And so what you end up seeing is exceptions to the rule and that sort of thing. Or just, you know, you just don't get any, you can't have society, right?
00:37:36
Speaker
I think the example you're giving, and I think there is a problem in the United States now with too much law, too much regulation. And what I see when I look at the literature is the philosophers will tend to say, well, a heavy economic regulation, for example, is not inconsistent with the rule of law. You can just fill out a lot of forms.
00:37:58
Speaker
But in some sense, it really is. In some sense, the laws of supply and demand are laws in the same way that you can't hold your breath for 15 minutes. If you look at sort of Hernandez de Soto's research, for example, if it takes you a year and hundreds of hours of missed work to stand in line, filling out forms, bribing officials, doing all these sorts of things in order to get a license,
00:38:27
Speaker
In some sense, that's not the rule of law, right? And so what we need to understand is that the kind of examples you're giving that what you end up seeing when you have too much regulation, when regulation is too thick for anybody to reasonably able to comply with it,
00:38:45
Speaker
What ends up happening is the government ends up making exceptions. You end up basically turning into sort of a cronyist type system. And as I'm sure you are familiar with, the literature defines that these countries that have a lot of these rules and permitting and all that sort of stuff, there's no discernible improvement in quality of government services.
00:39:05
Speaker
they just sort of say it's like a toll booth system where you kind of have to go and grease the palms of various different government officials to be able to do business. And so what we see in these countries as Fernando de Soto is documented is a huge underground economy created simply because it's not plausible to be able, in any meaningful sense, to be able to be legal and stay legal. It's a matter of sort of actually conducting day-to-day business.
00:39:33
Speaker
Really interesting. So let me ask a clarifying question. It sounds like you're saying that to have rule of law, as you understand it, it's not just that things have to be written down and followed and applied equally, that there also needs to be some underlying norm of limited government and value on individual liberty. Is that right?
00:39:56
Speaker
And that's where I end up departing from a lot of the philosophers, which is particularly I get this from Michael Oakeshot, the great British philosopher. But yes, in my view, I think I'm accurately portraying Oakeshot's view, the rule of law is not just sort of an abstract formalistic way of making law.
00:40:18
Speaker
The rule of law is an organizing principle of a certain type of society. It's the society that we started talking about of traffic rules, right? Where it tells you how to go about your business, but it doesn't tell you what exit you have to get off.
00:40:34
Speaker
And that's what the rule of law does. In my view, there is this essence to the rule of law, or what I call the rule of law society, which is fundamentally in conflict with a society that is not organized around individual liberty and free markets, and which is directed towards the accomplishments of certain social ends.
00:40:58
Speaker
So let me ask one more clarifying question. In your view, are the principles of individual liberty and limited government important to the concept of rule of law because they're good and because they lead to outcomes and societal functioning that you see as good? Or are they important because if you have a legal system that doesn't assume those principles and priorities, that the rule of law becomes self-contradictory because of all the loopholes and everything else?
00:41:23
Speaker
Right. And I think it's actually both, which is the rule of law makes no sense. In some sense, what is the purpose of a rule of law and its tyrannical society? It's kind of a senseless concept to say the government can
00:41:40
Speaker
you know, just throw you in jail anytime at once to, you know, as long as there's some arbitrary, you know, some law that passed itself that allows them to do that. I mean, you start thinking about what does it mean to have the rule of law? And again, you could think about this in an abstract sense, a theoretical sense. Yeah, you could have rule of law in a Nazi society. But what's the point?
00:42:04
Speaker
You know, what I take away from this is the only reason we care about the rule of law is because it accomplishes some purpose. It's not an end in itself. And what is that purpose? To me, the whole concept only seems to make sense in the context of a free society, which is it doesn't kind of make any sense to have the government constrained by rules if we don't think there's some independent value in individuals being able to pursue their own ends. Does that make sense?
00:42:33
Speaker
Otherwise, you would just allow the government or majorities or whatever to just use their judgment as to what everybody should be doing. And so in that sense, the rule of law, I think, is really more inherent in a certain way of conceiving of society than just sort of this abstract, free-floating kind of concept
00:42:55
Speaker
that you could describe, but it's not really clear why you would care about it, if that makes sense, in a communist society or in Nazi Germany or something.
00:43:05
Speaker
Okay, let me push you in a couple of different modern examples that we that we've brought up
Economic Crises and Government Intervention
00:43:11
Speaker
in passing. Then I want to ask you something about norms. So first, let's talk about the bank bailouts after the Great Recession. I've read a lot about the economic aspects of this. And as I understand it, the folks, you know, who were
00:43:26
Speaker
conservatives in many of them in the Bush administration who were behind the architects of the TARP Act, the big bailout. As I understand it, their hypothesis was that had they not done it at the size that they had, in fact, I think some of them thought it needed to be bigger, but they knew that the Congress wouldn't pass something with a T, a number that was in the trillions. Their hypothesis was if it hadn't been the size it had been and the speed it had been and it hadn't been
00:43:56
Speaker
given out to all of the banks you know they made all the banks take it whether they needed it or not as a way to prevent bank runs being caused by banks taking it seem to be in trouble there was was that they had done that there have been a catastrophic cascading collapse in the american financial system that would have caused credit crisis and eventually economic crisis
00:44:18
Speaker
more like the great depression than like what we ended up seeing. People can argue on the economics of that, but I think for the purposes of this conversation, let's just assume as a premise that that hypothesis is correct. If it were correct, would you still see the TARP and other bank bailouts as a bad thing, and would you still see it as a violation of the rule of law?
00:44:38
Speaker
Well, here's where thinking about this through the lens of the rule of law and the concept of the rule of law, I think, suggests a different way of thinking about that whole incident, right? Which is you start reasonably by saying, all right, now we've got a financial crisis. What do we do about it?
00:44:56
Speaker
But if you're thinking about it from this perspective, and we'll look backwards before we look forward, because I think the value of this is thinking about how we want to organize this in the future. Why did we end up in that situation? Well, if you look at Lehman Brothers, for example,
00:45:11
Speaker
What you see with Lehman Brothers is one reason Lehman Brothers kind of went down in a relatively messy way. Why? Because they expected to be bailed out. And why did they expect to be bailed out? Because Bear Stearns had been bailed out. And so Lehman Brothers just refused to do anything to prepare for bankruptcy because they figured the less we prepare, the less willing we are to sell ourselves to some other business, the more likely we'll be to get bailed out because we're obviously
00:45:41
Speaker
More important than bear stearns the government didn't battle out and then the government ballot everybody after that right so what's the problem the problem was not. Not bailing out women brothers problem was bailing out bear stearns.
00:45:54
Speaker
Right. And so what we see, what is the lesson we have for the rule of law, which is that why that all came about was because the politicians, even though they didn't have legal authority, had de facto authority to engage in this discretion to bail out banks. Why? Because they had done it in the past. They did it with Bear Stearns. And so there came to be these expectations that they would bail out banks and banks in the future. And when they didn't bail out banks in the future, that turned out to make things much worse.
00:46:24
Speaker
And so what's the point? The way we should be thinking about these incidents in the future is going forward would be, how do we think about this? The government in a financial crisis is going to be tempted to bail out. Why? Because the politicians have this short-termism
00:46:43
Speaker
that they are afraid you know they'll create a moral hazard problem for the future but they're afraid right now that if they don't bail out there's going to be an economic catastrophe so you kick the can down the road now what happens that makes it more likely that you're going to have similar problems in the future more likely that you're going to have moral hazard
00:47:03
Speaker
in the future because now everybody knows that's what the incentives of the politicians are. Does that make sense? And so what we see then is we do the bailouts. The bailouts were done in a completely ad hoc way. They set up all these supposed rules, but it turns out the banks, the empirical evidence is the banks that actually got bailout money were not the banks who met the checklist of what their criteria were, but they were banks that either had a former Treasury official or a formal Federal Reserve
00:47:32
Speaker
official on the board of directors, the banks who gave the most money to the relevant oversight committees in congress, all were more likely to get bailed out. That's the reality of how the discretion operates, as I was saying. Politicians in the interest groups are going to do that. And what do we see? We then saw Dodd-Frank. Dodd-Frank supposedly was going to get rid of bailouts forever. Does anybody think that?
00:47:55
Speaker
No, I've traveled the country for 10 years talking about Dodd-Frank, talked to thousands of people. Not a single person thinks that Dodd-Frank got rid of the bailouts are too big to fail, including say Elizabeth Warren and Jeb Hensarling, who couldn't otherwise agree on anything.
00:48:12
Speaker
And what do we see this spring with Silicon Valley Bank and the like? What happened? We essentially got bailouts again because it wasn't a credible commitment. And so the way I would suggest we want to think about these kind of issues, Matt, going forward is we need to be clear eyed about the fact of what politicians' incentives are going to be. The politicians' incentives are going to be to bail out regardless of the legal authority for it.
00:48:37
Speaker
then market actors are going to rely on that. We're going to have a moral hazard problem. And so then we need to think about what does an actual rule of law system look like, not just in theory, but also what is actually a credible commitment for the government to tie its own hands so that we won't get into these problems in the future. And that becomes a much more difficult question than just pretending like we can have this magical
00:49:04
Speaker
world where we'll just write a law and, you know, that the government's going to abide by it. And like I said, if the courts aren't going to enforce it, which they really didn't during the 2008 financial crisis, whether on that or on the auto battle outs, for example.
00:49:19
Speaker
then we need to come up with some system, more like a berry wine gassed kind of system of sort of self enforcing constraints on how the government acts rather than pretending like the government is going to voluntarily tie its own hands.
00:49:35
Speaker
Yeah, really interesting. You've basically articulated concept that won the Nobel Prize in economics for Kidland and Prescott called time inconsistency. For those listeners who don't know what I'm talking about, it's the idea there are cases like negotiating with terrorists where when the terrorists don't have your CIA agent, then you want your policy to be, we don't negotiate with terrorists because you don't want them
00:49:57
Speaker
to take your CIA agent. But once they have your CIA agent, you want to negotiate to get him back. But then the problem is the terrorist knows that, and so they're going to ignore your policy of that we don't negotiate with terrorists. There are all kinds of examples, and the one that you articulated is one. Wall Street bankers are pretty good at figuring this game out, I think, Matt. And in fact, Killen and Prescott argue for rules rather than discretion. I think that's in the title of their paper. So your conclusion matches the one that they recommend in this case.
00:50:25
Speaker
Now, a couple of challenges I see with banking. One is that, unlike terrorists having a CIA agent or houses in a floodplain is another example. A countrywide banking collapse is just such a higher order of magnitude of crisis. So it seemed like you need some other safeguard to prevent it. If you were going to have a rule where you really tied your hands that you're never going to bail at a bank,
00:50:49
Speaker
And so two questions I wanted to ask
Regulation vs. Personal Liberties: A Debate
00:50:51
Speaker
you about that. One would be, do we need to have some kind of policy against extremely risky speculative lending that has jail time teeth to it? Or would that cause more problems than it solves under the individual liberty doctrine that you outlined earlier? And then secondly, do we need to combine, if we're going to have more of a laissez-faire bank bailout policy or a non-policy, does that need to be combined with some kind of antitrust? Because it seems like if the government got out of the game of bailing out banks,
00:51:18
Speaker
For sure what would happen is the banks, in the best case scenario, is the banks would bail out each other and thereby consolidate and that would make the too big to fail problem worse.
00:51:28
Speaker
One of the great ironies of Dodd-Frank, of course, is that it has made the big banks even bigger and even more too big to fail. Now, apparently, we've decided that a lot of medium-sized banks are going to more or less fit in the same category. One of the reasons for that, one of the big drivers for that is that the regulatory cost of the Dodd-Frank law that was enacted
00:51:49
Speaker
after the financial crisis is much more costly for small banks to comply with than large banks. And as you know, this is a common feature of regulation is that there's economies of scale and complying with certain regulatory requirements. And that's basically what we've seen here is that big banks, they have to hire another 100 compliance attorneys. That's a rounding error. But if some small bank has to hire a new lawyer, that could be a big hit to their bottom line. So
00:52:18
Speaker
We have this kind of irony that Dodd-Frank has actually accelerated consolidation because of the regulatory costs that don't impose as well as the continuing too big to fail subsidy, as it's called, by the fact that everybody believes that big banks are still going to be bailed out.
00:52:36
Speaker
But what you're raising is a larger point that I think is important, which is that the world of regulation is a world of tradeoffs, not solutions. And that's very familiar to us as economists. There are no solutions to these problems.
00:52:54
Speaker
And so if you want to start thinking seriously about banking, you have to go back to the question of deposit insurance. And deposit insurance makes sense because of the fact that the ordinary depositor does not have an incentive or ability to monitor the bank.
00:53:10
Speaker
where their money is in. So we create deposit insurance. The problem is, as soon as you create deposit insurance, then creditors don't have to monitor the bank, which means that now we've got the bank basically being able to be
00:53:25
Speaker
protected from typical scrutiny. So then we have to bring in the government to supervise the banks, is how it's been understood. But then as soon as you bring in the supervision process, now you have the whole regulatory apparatus piled on top of that. And the question is, how are they going to operationalize the regulatory apparatus? And then that creates its own set of headaches and other sorts of things that we could go into.
00:53:52
Speaker
With respect to your point about risk taking, the problem is that there is going to be risk somewhere in the world. People are always going to be pushing the envelope. There could be reasons, and this is essentially what we're doing now. We've essentially shifted risk outside of the typical banking system in the United States now. So for example, the majority of mortgages are made now by non-bank.
00:54:15
Speaker
institutions. Now, that may be good, right, in some sense, for the reasons you're saying. But what does that mean? We've basically put mortgages back in the world of the people who we regulate the least, which is what we thought was the problem for Dodd-Frank was all these mortgage brokers and sort of, you know, mortgage companies out there doing wild things. So risk is inherent in an economy, risk is inherent in banking,
00:54:41
Speaker
You can't wish away risk because risk is necessary for progress. There's always going to be people pushing the envelope on risk. The question is, how do we first prevent risk? I think more important and something I've thought a lot about and written on is, what do we do with the fact that risk is part of life?
00:55:01
Speaker
How do we keep our regulatory process for thinking about preventing systemic risk of a catastrophic failure of the bank system may not be the same as we think about when we think about keeping individual banks from failing. And that's something that our regulatory system I think is very poorly adapted to do, which is to think about big problems of trade-offs rather than redefining their problems and the little problems that then they can claim to solve.
00:55:28
Speaker
Yeah, just so just a quick, interesting point on the mortgages. The I believe it was the case in the lead up to the crash. The derivative market for mortgages was something like 20 times larger than the market for mortgage bonds themselves. So arguably the bad mortgages was less than half of the problem. But I want to get to trade offs to your point about trade offs, I think is really pertinent to another case that I wanted to push you on. And that is vaccine mandates.
00:55:56
Speaker
Let's think about it first as an economist from the perspective of utility.
Vaccine Mandates: Utility vs. Risk
00:56:00
Speaker
I think you can make a case for vaccine mandates at least for adults and that case would hinge on the fact that you know it's a fact that the death rate is enormously higher among the unvaccinated than the vaccinated and in regions.
00:56:16
Speaker
where there's higher rates of unvaccinated people. It's true that the vaccines have side effects, which in rare cases are really serious. But I believe in most of those cases, if not all of those cases, having COVID has similar potential for side effects that's larger. So one example that we've talked about a lot in the news recently is myocarditis in young men as a side effect of the mRNA vaccines. So that's true, although it's not what made LeBron James Jr. sick. It turns out he had a heart defect.
00:56:46
Speaker
It's also the case that COVID, having COVID, has about a twice as large risk of causing myocarditis in young men. So it seems like you can make a case for vaccine mandates on a utilitarian perspective. And yet I admit that I'm also sympathetic to the visceral personal liberty argument that the government forcing me to take a medicine that might harm me, even though there's a larger chance that it will help me, violate some kind of fundamental
00:57:15
Speaker
moral principle. I think I was four, and I think I still am in hindsight, four vaccine mandates for the first couple of additions and then for making the boosters optional. And I guess that's sort of my way of rationalizing the tension between the moral individual liberty issue and the utilitarian issue that I was just articulating. But what are your thoughts on that?
00:57:38
Speaker
Yeah, so a couple of thoughts. First, and this is important, I don't know every state, I know Virginia, where I live, usually, except for when I'm here. It is not true that this country has vaccine mandates. People claim that there's a vaccine mandate for kids to go to school. That's not true.
00:57:56
Speaker
What all the states I'm aware of have is immunity mandates, right? Which means what? Either a vaccine or evidence that you have recovered from the illness. I believe it is the case that in some states early in the pandemic, and certainly was the case in some workplaces, including this one, that you did have to have a vaccine.
00:58:18
Speaker
Right. But yeah, but I'm talking about sort of standard things, measles, mumps, right? Everybody claims that you've got to, that, oh, this is just another vaccine, right? It's not true that there's vaccine mandates, there are immunity mandates, which means if you've got, you had measles as a kid, and you have, and can prove it by an antibodies test, then you don't have to get a measles vaccine, mumps, rubella, you name it, right?
00:58:42
Speaker
That's the law, right, which is, you know, in these states. So COVID in Virginia, for example, when the governor decided, my university decided to impose a vaccine mandate, was the only, literally the only vaccine that could not be satisfied by natural immunities.
00:58:58
Speaker
every other one, you could satisfy it by natural immunity. How? By showing evidence of an antibodies test. And so one of the things that was illegal, in my view, and unconstitutional about the COVID vaccine mandates is they made no allowance for natural immunity.
00:59:15
Speaker
And to give the more general point when it comes to law, the argument going back to this Jacobson case, the smallpox inoculation case in 1906, was that it's not about protecting the individual, it's about protecting the community, right? So if it was just about making sure that people were healthy,
00:59:35
Speaker
or the people that have severe side effects from COVID, then they could pass a law that says everybody who's overweight has to get bariatric surgery regardless of the risk to them, right? Because we know obesity is a risk factor for bad outcomes for COVID. Everybody's going to now be required to exercise five days a week, right?
00:59:54
Speaker
And so the only argument, and in fact, it turns out obesity is not what's not just a risk for you getting sick for COVID, but obesity also is a risk for higher viral spreading as it turns out in the evidence, right? So the only argument that justifies vaccine mandates is not the benefit to you, it's the benefit to society. So number one, natural immunity, it was known at the time and is really known now, is clearly superior to vaccines in terms of
01:00:24
Speaker
preventing infection and preventing transmission of COVID. There's really no doubt about that anymore. We could talk about why it is. But it was already known at the time that the vaccine mandates went into effect. So then the only thing left at that point would be the question of COVID vaccines for people who didn't have demonstrable
01:00:46
Speaker
natural immunity. And what we also knew at the time was that COVID vaccines did not meaningfully reduce infection or transmission and the family did so for a very short period of time. We already knew by the time the vaccine mandates went into effect in the United States at the end of the summer, like for those of us in universities, the United States was already making plans to roll out booster shots because it was already known
01:01:11
Speaker
that people are getting sick, people are dying, people were ever since at least that case up in Provincetown, Massachusetts. So what you see when you look back at the history on this is the smallpox vaccine was a vaccine that had been around for a century.
01:01:27
Speaker
It was known exactly how it operated. It was known what the risks were and what the benefits were. It was a highly contagious, highly deadly disease. That's very different than what we saw in the COVID situation, where it was clear that it couldn't prevent infection and transmission.
01:01:47
Speaker
It was clear it never could because it didn't create mucosal immunity. And the larger point is, think about what I said earlier about where the eugenics laws came from, the forced sterilization laws came from. The precedent for that was the Jacobson case, which is, as we call what Justice Holmes said is, principle that allows mandatory vaccinations clearly broad enough to forcibly tie someone's fallopian terms.
01:02:13
Speaker
which is once you go down that slope, you get eugenics, you get Korematsu, which was based on the same idea that the government had a right to protect the public from these people that they judged to be dangerous. And you could kind of see where that line runs. And so I think the idea that the burden really needs to be on the government
01:02:38
Speaker
I think, when it comes to overriding individual liberty, making these claims about externalities and protecting the public because that can really be a rationalization for some very dangerous things in terms of this utilitarian calculus.
01:02:58
Speaker
including things like the Tuskegee experiment, you can just think of all the different ways that, all the different places that can lead you if you start weighing just sort of diffuse, broad, vaguely defined public benefits against individual liberty. Sometimes the calculus is appropriate. It's just to say we shouldn't just blithely ignore individual liberty and the claims that, you know, that there's some public benefit from some action.
01:03:25
Speaker
It sounds like, to put it succinctly, you're saying that we should be very cautious about any structural infringement on individual liberty, lest it be misused by somebody who's, you know, some tyrannical power whose norms we find repulsive, like those who would perpetrate internment or eugenics. Okay, last really quick question about vaccines, because I think there's often nuances lost in this debate because it's so charged.
01:03:53
Speaker
So on the one hand, I've heard you articulate, I think, a skepticism to the forms of vaccine mandates, excuse me, that some employers enacted. And yet, so just two really quick yes or no questions. Number one, would you be in favor of a vaccine mandate that had a natural immunity exception? And number two, forget the law, forget the policy. If a friend of yours said, Todd, do you think it's a good idea for me to get a vaccine? What would you tell them?
01:04:19
Speaker
On the first one, I would say that it's quite clear with respect to the COVID vaccine.
01:04:25
Speaker
that there's no justification for vaccine mandates. The only justification would be is if it protects against infection and transmission, otherwise it's a matter of individual choice, just like how often you exercise, what you eat, how much you sleep, all the other sorts of things that just affect your general propensity to get ill. On the second one, my view personally at this point is I would tell people absolutely not.
01:04:52
Speaker
I do not think that the risks of this vaccine outweigh the benefits. And among the risks, I'll just mention ones that people could find on my Twitter account if they want to know more about it, but there's something called original antigenic sin that is a well-known principle of virology that basically says your first exposure to a variant basically locks you in forever.
01:05:15
Speaker
For example, all this hullabaloo now about the new variant vaccine is largely irrelevant because the way the immune system works is it's going to just reactivate people's defenses against the original Wuhan variant that's been long extinct. There's a problem called immune exhaustion.
01:05:34
Speaker
There are various other things such as what's called immune tolerance, which is repeated exposure at high levels to certain stimulants can have all kinds of problems. So it turns out the only way sort of this strategy that's been proposed makes any sense is if you really don't, if you only, if you think of the immune system, in my view is some sort of machine that can just get activated over and over again.
01:06:00
Speaker
and not what it really is, which is an organic adaptive system that is very complex and simply trying to simplify it doesn't work very well. So that would be my view. Quick follow-up question. Is your position basically that it's not worth it now because basically everybody at this point has either had it or had a vaccination or both? And then if
01:06:24
Speaker
No. What's your response to, I think, the pretty clear statistics that people who were vaccinated have dramatically lower death rates? What I would say is I don't think anybody has ever made the case in any persuasive way that the benefits of the COVID vaccine to anybody but high-risk individuals outweigh the costs. Even in the beginning?
01:06:49
Speaker
Yeah, we know overwhelmingly that those who died from COVID were the elderly. We know there was a huge age stratification and the unhealthy and really primarily those who were obese or who had obesity related issues like diabetes, hypertension, comorbidities, those sorts of things.
01:07:11
Speaker
With respect to everybody else, younger people, healthier people, the risk of COVID was trivial, right? And if you look at the average risk reduction versus the relative risk reduction, it's almost zero.
01:07:27
Speaker
because so few younger or healthy people died from COVID or got even got seriously ill from COVID. And so, you know, I think you can see what J. Bob Chartier says or others who have looked at this and it seems pretty clear I think at this point from the very beginning.
01:07:44
Speaker
that lower risk people that the benefits were highly unlikely to have outweighed the cost. And now we've had other issues that I could go into in terms of the way in which mass vaccination prompted that it seems to have been the cause for the rapid appearance of
01:08:03
Speaker
immune escapist variants such as Delta and various other problems that have arisen from that. So I think it was a catastrophic public health decision to give everybody the same immune profile. And I think in that sense, it was bad for a lot of individuals and bad to vaccinate a lot of otherwise healthy people with this particular variant.
01:08:28
Speaker
So that's interesting. I've certainly seen data that suggests that the average death rates were lower for vaccinated people in all age groups, even though you're right that the baseline is relatively low for young and not at risk age groups. And I've also seen data suggesting, at least for the mRNA ones, it's true that J and J and AstraZeneca were both a bit less effective and had a bit worse side effects. But for the mRNA ones, I've seen data that suggests, at least for the main side effects, that the side effects were worse with COVID.
01:08:57
Speaker
But so we might have to agree to disagree on the medicine there. But I think that you make an interesting point about the rule of law and the legal aspects. I had more questions about norms and other things I'd love to ask you, but we're out of time. So let's just say thanks so much, Todd Zwicky, for coming on the Free Mind podcast. This was loads of fun, and we'll see you soon. Sounds great, Matt. I think we're going to talk for another hour, huh? Yeah, indeed.
01:09:22
Speaker
The Free Mind podcast is produced by the Benson Center for the Study of Western Civilization at the University of Colorado Boulder. You can email us feedback at freemind at colorado.edu or visit us online at colorado.edu slash center slash benson.
01:09:40
Speaker
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