Confining the Contagious


            It was a scene right out of a thriller. A man diagnosed with an infectious disease walks out of a hospital and is suddenly at large in the community. He is homeless. There is no telling where he went. Officers search for hours, fearing that he is infecting others as he lurches from one location to another.

            The man is found, and he is taken into custody.

            But it wasn’t fiction. The man in question is a 50-year-old homeless person. He walked out of Yale-New Haven Hospital Sunday night after being diagnosed as infected by COVID-19. For eight or so hours, he wandered southern Connecticut, before being taken into custody in Milford.

            Question: What law did he break? By what right is he taken into custody and held against his will?

            The question matters because, we like to say, we are a nation governed by laws, not men. Before a stranger can compel you to do something you are unwilling to do, the stranger must have authority to engage in compulsion. The law gives to certain individuals the power to force others to comply.

            It’s the miracle of government in action, a fact every bit as mysterious as the starry heavens above or our inbred sense that some things are right, while others are just wrong.

            We talk a mean game about government by consent of the governed. Indeed, an impressive body of political philosophy arose in 17th century England involving one of the law’s politest of legal fictions – the social contract.

            It goes something like this.

            Before there was government, we wandered, independent savages all, free to rape, pillage and plunder our way through the state of nature. No law governed. Life was, in the words of one 17th century philosopher, Thomas Hobbes, “nasty, poor, solitary, brutish and short.” 

            To escape the madness, individuals agreed to form government, to place some folks in authority to create rules to limit what we could do to one another in pursuit of our own private ends. Hobbes was an absolutist, giving government the power to do just about anything to keep order. (He drew the line at the death penalty; if the sovereign sought to kill you, you returned to the primal rights of the state of nature.)

            John Locke, another 17th century philosopher, viewed the contract as more limited in the powers it gave to government. We retained, according to Locke, the right to rebel, to make, as he put it, an “appeal to heaven” by means of revolt if the sovereign became abusive.

            The trouble with these contract theorists is that they think folks are rational. As though the brutish inhabitants of the state of nature had foresight. Who taught them to think, to speak? Who clothed them, fed them during the long years of development dependence? Social contract theory takes individualism a little too seriously; it has a little too much faith in human nature.

             I suspect the wayward soul who wandered out of Yale-New Haven Hospital the other night wasn’t the sort of person who’d negotiate his way out of the state nature. More likely, he’d howl at the moon and pick a fight with his own shadow. Some folks are like that. Many of them become homeless due to mental illness.

             So what gives the law the power to coral these folks and to hold them against their will?

Here’s the simple answer: The state’s police power, that is, the state’s right to ensure that the health, safety and welfare of state residents are protected. We don’t want infected folks wandering the streets spreading contagion because they have a “natural right” to do so.

           Put another way, your right to self-destruct doesn’t give you the right to take me with you.

           Just how to draw this line is difficult. In a time of crisis, such as ours, I suspect the line will often be drawn hastily and without foresight, leaving until a calmer time the legalities of it all.

           So should the homeless man be held against his will? Sadly, yes, if he carries a deadly disease and is a risk of contagion. Does this set a dangerous precedent, you bet.

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