It is past time to take on the most consistently argued reason for the lockdowns dictated by the governor, county judges, and mayors all across Texas – “flattening the curve.” What lockdowns did is flatten the liberty AND flatten the health care.
The most important lesson to be learned from the unprecedented lockdown assault on the liberties of Texans is that the most often repeated rationale - flattening the curve – is not a legitimate governmental interest.
Flattening the curve is a shorthand way of saying that you wish to avoid surges in demand for health care facilities and personnel’s services.
The Texas judiciary has said that before a Texas official can deny liberty to Texans, you need a “legitimate governmental interest.”
So what is the source of a legitimate governmental interest? The Declaration of Independence, after declaring that all men have unalienable natural rights, gives us the key to the source of governmental interest: “That to secure these rights, Governments are instituted among Men . . .”
The Texas Declaration of Independence stated the proposition negatively when talking about the tyranny of Santa Anna, starting, “When a government has ceased to protect the lives, liberty and property of the people, from whom its legitimate powers are derived, and for the advancement of whose happiness it was instituted . . .”
The preamble of the Texas Bill of Rights states the goal:
“That the general, great and essential principles of liberty and free government may be recognized and established . . .”
You can word search the Texas Constitution for the words public health, health and safety, police power, and common good, or even general welfare, and you will find none of them defined as a goal of the government of Texas. As Justice Don Willett said in his 2015 Patel concurrence, “the Texas Constitution – then and today – exists to secure liberty.”
So, to determine whether flattening the curve is a legitimate governmental goal, authorizing the denial of freedom to individuals, we have to ask the question, are any rights threatened by a surge in demand for health services that justify such restrictions on others?
Do doctors and nurses and other health service providers have the right to not have more people want their services than they can provide? Do hospital corporations have the right to not have too much demand for their services? Do potential patients/consumers of those services have the right to a particular service from health service providers?
Rights are not contradictory. One individual does not have a “right” to violate the rights of another.
Clearly, the answer to those questions is no! And since health providers and corporations and potential patients do not have the rights in question, they do not have the right to use the force of government to deny others the rights to their livelihoods, to assemble freely, to worship, or even that “non-essential” right to pursue happiness.
The old joke cynically says that one of the big lies is: “I’m from the government, and I am here to help you.” It certainly applies here. The health care providers have been harmed by command and control edicts controlling the way they provide services and earn a living.
In addition to the mass restrictions on the actions of the general public, the governor and Texas bureaucracy also issued edicts that intervened in the provision of health care, telling the providers that they had to stop providing service to non-COVID-19 patients to free up resources for an anticipated, but never realized, surge in COVID-19 patient demand.
This caused loss of income for health providers, and it surely caused avoidable deaths in those patients denied services under the edicts.
You would think that a governor who sells Texas as being a paragon of virtue by protecting markets would understand that command and control by government always fails in meeting changing market demand. The primary reason command and control fails is because the knowledge about the diverse individual circumstances that need to be met is diffused to people on the ground at the moment, given the circumstances. Decentralized decision making maximizes good results.
Given that medical professionals are trained in the art of triage, it is the height of arrogance on the part of Texas governmental officials, including the governor, to think that they can do a better job of making the difficult, prioritization decisions based on multiple factors in the range of the moment than doctors and other health professionals can.
Weren’t we told that one of the fundamental flaws of Obamacare is the substitution of a bureaucrat’s judgment for that of doctors?
Governor Abbott and the big-pharma-government industrial complex are showing their true socialist colors during this scare. We Texans are not buying it.
And we will be working hard over the coming months and years to make sure that the mass destruction of livelihoods and lives caused by the lockdowns never happen in Texas again.