The ongoing government response to Covid-19 has engendered much criticism over the curtailment of civil rights, but for many people public health measures are justified by moral considerations that are, on their face, compelling.

It is easy to castigate those opposed to government measures as uncaring and reckless, willfully endangering the lives of the elderly, vulnerable, and immune-compromised. Such individuals, the sentiment goes, block the path to an effective government response and a return to a kind of normal.

While these criticisms are morally intuitive and easily understood, it takes little analytical prowess to determine that the arguments for draconian public health measures are overly broad and lack operational clarity, and it becomes evident that the justifications for these health measures suggest that a new and concerning definition of rights is emerging.

Part 1: Overbroad Arguments

Consider how far the current Covid-19 measures can be stretched, starting with the argument that you must do variable x to protect the elderly. How far does the principle of elder-protection bite into civil liberties? Should police be allowed to enter homes at will to ensure gathering restrictions are observed? Should facial recognition technology and contact tracing of all citizens be implemented? What about the monitoring of private cell-phone messages to catch those intending to violate health mandates?

These ideas may seem far-fetched, but the arguments commonly used to justify health measures (e.g., we must do everything we can to protect the vulnerable) are made without qualifiers or limiting principles. On what basis would one accept the current measures and protest further infringements as those outlined above? A probable response would be that these new measures go too far, but merely acknowledging this concedes an important point: the government can go too far to protect Grandma and Grandpa.

This raises a problem for defenders of draconian health measures because they cannot simply accuse their opponents of not caring about the elderly, because they themselves have a point at which they prioritize some version of rights over the lives of senior citizens. Both are guilty of the same thing. Where the real disagreement sits is how to balance public health with civil and human rights. Health-focused individuals draw the line at x and rights-focused individuals draw the line at y. And it is not compelling to say that because one group draws the line farther down the road they are adopting a more moral position, as this logic extended would quickly lead further and further toward a health dictatorship.

The severity of measures one supports, then, cannot be used as a barometer for those measures’ ethical robustness.

Part 2: A New Theory of Rights

What can be said, however, is that emerging from these overly broad arguments for public health measures is a new conception of rights. Canadians have seen religious leaders thrown in jail and governments utter dictates around Christmastime gatherings. Huge swaths of the population have been locked in their respective localities—enforced by police checkpoints—while business owners have been threatened with arrest simply for attempting to operate.

While this worries some, the response from others has been flavoured with a distinct apathy, and often the most passionate complaints are made by those who wish for the government to be more heavy-handed. This schism illustrates that the (traditionally) shared concept of rights is fracturing and new arguments are being formed regarding what rights are and what their relationship is to other societal goods.

This emergent theory posits that rights are a barrier to prevent governments from doing good things, rather than rights being a barrier to protect people from governments doing bad things.

This is a seismic ideological shift, and while in a narrow sense it is true, it neglects to appreciate the reason Western societies have developed reverence for rights and freedoms. The West is right to uphold a system of rights that makes government less efficient because of the (correct) assumption that leaders can be malevolent and that systems should be built to prevent the maximization of those ill-intentions. To forgo appreciation for this fundamental pillar of Western (specifically American) design is to flirt with authoritarianism. Of course it is true that the government could be made more efficient in all manner of ways, but this comes with a cost.

Consider how far these ideas might extend. Almost every right can be dangerous, and reasonable people will question why rights can be overridden for the purpose of public health but not for public safety. Speech rights, association rights, mobility rights, and rights against unreasonable search and seizure are all routinely used by criminals and ideological radicals to perpetrate or encourage heinous crimes. Why should these rights not also be cast as selfish entitlements that prevent the government from protecting vulnerable groups?

Should police forces not be given the ability to enter homes and wiretap phones without warrants to combat sex trafficking? If people oppose this they must not care about the lives of vulnerable women and children. Consider the opioid crisis. Should the government not authorize arbitrary detentions and remove limits on search and seizures? Youth are dying, in certain places and periods at rates higher than Covid-19. And consider the argument that White Supremacy over the past half decade has been resurgent. What clear-thinking individual would defend free-speech rights when they so effectively enable the spread of these heinous movements?

Part 3: Contagions and Beyond

Some will protest that this new conception of rights will not spread beyond Covid-19 because other social issues a) are not emergencies and b) are not contagious diseases, and as such do not warrant the same type of response. This is not, however, a compelling defence. The spread of hate, particularly when carried by fast-growing movements, can be considered an emergency (history endorses this point clearly), and certainly the opioid crisis (it is in the name) is just that. And what of climate change? If human activity is rendering the planet uninhabitable, what could possibly be a more urgent concern? Consider, too, that emergency legislation itself generally covers a much broader range of issues than just contagions.

It is not clear, then, why this new conception of rights should be limited to viruses. This argument—that rights coming into conflict with the ability of the government to keep people safe is justification for the eradication of those rights—is not an argument for pandemic measures but an argument against rights generally. Rights generally make it more difficult for the government to create and implement policy, which is (in a way) what they are meant to do.

Reasonable people may disagree on how the government ought to respond to pandemics and other emergencies, but castigating one side of the debate as selfish and uncaring is not accurate or fair. The concerns expressed by rights-focused individuals are not conspiracies and are not unscientific. They need not, and generally do not, dispute commonly accepted sets of facts. The proper way to balance public health with fundamental rights and freedoms is complicated and nuanced, and the denigration of rights-focused individuals intentionally bypasses an important conversation.

The new ideas being presented to justify public health measures undermine principles of fundamental importance to free societies. In the very least, this emergent theory of rights is worth talking about openly, honestly and freely.