OPINION | Elon Musk is our new ACLU

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A CEO has obligations to shareholders, among them not to let anybody take anything of value from the company that the taker has no right to take.

That Elon Musk’s resistance of California’s pandemic shutdown may well be due to fear that his company cannot survive if it doesn’t continue pulling in cash from delivering cars merely gives him a material and compelling justification for his defiance. He should protect his company’s right to do business and survive against what he considers unlawful and unjustified prohibitions. He would be derelict not to do so.

From the start of the crisis, the American Civil Liberties Union has advertised on its website: “The ACLU will be watching closely to make sure the government’s response is​ scientifically justified and no more intrusive on civil liberties than absolutely necessary.”

Its definition of scientifically justified appears to be about as rigorous as the media’s, which means anything the hive mind has somehow decided requires fashionable conformity. The irony is that the science has been speaking clearly and consistently, but the public and a virtue-signaling media haven’t wanted to hear it.

For weeks, a CDC web page, which remains widely quoted by other government and health-care websites, advised, “In the coming months, most of the U.S. population will be exposed to this virus.”

When the lockdowns started, I could write without qualification: “Experts now agree the virus’s spread can be slowed but not contained. It will take its place among mostly seasonal respiratory infections.”

Our flatten-the-curve strategy, likewise, was premised scientifically on slowing the virus’s spread in line with local hospital capacity. Unthinkable would have been sweeping and indiscriminate bans on economic activity in places not yet touched or barely touched by the virus.

A writer in the Atlantic suggests conservatives favor opening the economy and want the old and ill to take one for the team. My own email indicates dissent from the lockdowns has nothing to do with being a conservative and a lot to do with being a physician or immunologist. By focusing protection on the elderly and vulnerable, we bring closer the day when the elderly and vulnerable won’t need protecting because the epidemic has run out of a critical mass of people to infect.

An unusually sensible writer in the New York Times points out that pandemics in the past have ended not with the virus going away — the 1918, 1957 and 1968 strains are still with us. They ended when people decided to accept and adapt to the virus’s existence.

Which brings us to Mr. Musk. He is not the only business operator, but perhaps the only one running a public company, who has decided to resist his livelihood being destroyed by infringements on the most basic rights of U.S. citizens: to leave their homes, to engage in trade, to work and receive pay.

We expect Mr. Musk to be grandiose: Let me be the first to be arrested, he tweeted, Patrick Henry-like.

We expect legal plaintiffs of every description to be self-interested — his defiance has clearly been accentuated by Michigan’s decision to let his competitors reopen their auto plants.

These infringements, it is vaguely but confidently asserted by politicians and their press cheerleaders, are justified by the science. Well, let’s test this idea in court.

You will be hard-pressed to find a scientist anywhere who maintains we don’t need to learn to live with the virus. Our incoherent lockdowns plainly lacked a scientific rationale for how to reopen when most of the public remains uninfected. An MIT group calculates that the desired benefits in terms of hospitals and the elderly could have been achieved far more cheaply by isolating the vulnerable rather than everybody, and with far less damage to civil liberties.

For some families, sheltering in place now appears to have increased their risk rather than reduced it. For most individuals, the danger was flu-like, which never before led to them being stripped of basic rights. Banning outdoor activities appears to have been absurd overkill. The notion that a vast testing and contact-tracing scheme is plausible and could halt the epidemic, much less is a requisite condition to resume most of our economic freedoms, would likely fall to sixth-grade math. Start with the challenge of identifying millions of asymptomatic carriers among millions of others whose symptoms are due to the common cold or flu.

That politicians took steps out of panic is understandable. That these steps were unjustified by the science that existed then much less now doesn’t mean their motives were bad. We can accept, especially in a panic, that the media will eschew complexity in favor of a story of an enemy who must be vanquished.

Our country and our Constitution are finished, however, if the most sweeping, authoritarian and undemocratic restrictions on individual liberty ever contemplated are not subjected to legal challenge and accountability.

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