Unbalanced Equation

For those of us who have endured law school, one of the elemental concepts we learned in the first class on Contracts is that an agreement is only valid if there is “consideration.” That is, for it to be enforceable, each side must give something to the other. For the proverbial opera singer, a contract gives her the right to receive some form of remuneration, but only if she provides a performance according to the terms of the deal.

In Constitutional terms, a similar compact exists. We receive certain rights as citizens but, in return, we owe certain obligations to the rest of the population as a whole. In other words, there is no free ride under the Social Compact, with its recognition of the Common Good, that is the underlying basis of civilized society and our democratic government.

But something has happened to this basic understanding. These days, while we often hear about assertions of rights, the discourse rarely mentions obligations. Nowhere is this more obvious than in the current “discussion” about Covid vaccinations. The notion of a Common Good is conveniently ignored.

When the Constitution was adopted, setting out the basic structure of our government, with its three balanced branches and the limitations on their authority, it was quickly realized that something was missing: a recognition of individual liberty. So James Madison got to work, and, voila, we had the Bill of Rights, with its inalienable freedoms of speech, religion and the press, and the right to a jury trial, etc. The 13th, 14th and 15th amendments made all men truly equal, at least on paper, and the noble aims of the Founding Fathers were conceptually achieved.

But applying these principles has not always been easy, and it is sometimes painful to admit that freedom of speech includes the right to spew vicious falsehoods and hatred, freedom of religion can include the freedom to practice bigotry and the right to due process of law can sometimes result in obviously guilty criminals going free. Then there are the obvious perversions of these rights, as when the curious sentence construction of the Second Amendment is read to mean the right of every man, woman and child in this country to own a military-type assault weapon.

In the beginning of the pandemic, we all felt helpless against its deadly onslaught. But we miraculously produced amazingly effective vaccinations in record time, and millions scrambled to get a couple of tiny pinpricks in our arms. And although some had unpleasant side effects for a few days, and there were extremely rare cases of serious ones, few regretted their decisions. Science had seemingly won. We would get our lives back.

But vaccinations slowed and holdouts resisted. Crazy conspiracy theories, mistrust of government and even politics left us far short of herd immunity. The most contagious and perhaps deadliest variant, Delta, descended like the Blob over the diner in the classic horror movie, and we are debating masks again as the numbers ascend by multiples. 93 million eligible Americans remain unvaccinated, claiming their “rights” to forego common sense. You rarely hear about the obligation to keep the rest of the population safe. Without an assumption of this duty, these assertion of rights are not only meaningless but create a selfish sense of “free-riding” by allowing the unvaccinated to benefit from the vaccinated.

The Delta variant has exposed that the vaccines are not the magic bullet we had hoped for, as more and more “breakthrough” cases arise in fully vaccinated people, although they are still rare and typically not serious. The overwhelming number of hospitalizations are among the unvaccinated. But this resurgence was mostly preventable if a sense of commonality still existed.

We may have to admit that Covid is here to stay. But it is not too late to minimize its impact. Stop debating vaccination mandates by employers, schools and state and local governments. The flip side of the so-called right to refuse a vaccine is that there is no absolute right to a job, to attend a school or to dine in a restaurant if you are endangering others. It is time to recognize the rights of the vaccinated to remain safe. I think that the Founding Fathers would agree.

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