A Normative Debate

Mssrs Buddy, Stickler, Winner and Node discuss what reason the president of the USA could have to appear on May 21 2020 on nation-wide television without a protective face-mask in Michigan, which was then required by law there. A quote from the Chicago Tribune of that day is given below, it will be the subject of their debate, which was announced earlier:

Trump visited Ypsilanti, outside Detroit, to tour a Ford Motor Co. factory that had been repurposed to manufacture ventilators, the medical breathing machines governors begged for during the height of the COVID-19 pandemic […] again, the president did not wear a face covering despite a warning from the state’s top law enforcement officer that a refusal to do so might lead to a ban on Trump”s return. All of the Ford executives giving Trump the tour were wearings masks […] “I did not to want to give the press the pleasure of seeing it,” Trump said.

It’s strange. The USA is in the middle of the corona pandemic. Look at Fig. 1, it reflects the state of affairs on May 22, 2020, one day after the incident.

Fig. 1: USA coronavirus data (day 154 is May 22, 2020)

It shows that between day 112 and day 119 of the pandemic the growth of infections no longer is exponential (as in the red line) but linear. Yet the number of infections is growing seriously, and therefore the number of fatalities too. As of May 22, the counter shows more than 95,000 casualties for the USA, a number that is still growing at about 10,000 weekly. That is more per week than China experienced during the entire pandemic. On March 13 (day 84 in the chart), Trump declared a state of emergency. In doing so, he thus created leeway to support states in taking measures. One of those measures in Michigan is making the use of protective face-masks mandatory. Why does he refuse to comply? Will that really be based on grudging the press to make pictures and spread them? I put the question to the gentlemen. They represent different positions. Buddy mainly aims for group feeling / identity, Stickler mainly wants to do things according to the rules, Winner looks for efficiency, and Node wants to make and continue to make his own choices. They have been sentenced to each other because in behavioral choices group values, rules, efficiency and self-esteem all play their part concurrently.

Mr. Buddy defends the thesis that Trump’s choice rests primarily on the group sentiment evoked by (and needed for) a party in power. The fundamental right that goes with it is freedom of expression. Whether or not to wear such a protective mask will, according to Buddy, be perceived by Trump as a statement, and everyone participating in the public debate should be free to express what he believes is what his community needs. In the USA, this fundamental right is virtually limitless in the political arena. Trump is taking part in the debate, and many of his followers have had enough of the coronavirus measures. Trump takes the risk of being considered inconsistent by his political opponents for granted, as long as his behavior helps increase and confirm the size of his followership.

Mr. Stickler is in doubt, Trump is neither keen on the law nor the judiciary. He does have the right to free expression (and he likes to use it a lot), but rules are rules, and Michigan applies those of Michigan state, which made it mandatory to wear protective masks in group conversations. Stickler ultimately suggests that the governor could have had Trump be fined but didn’t, because he also considers that such would have meant even more followers. What is also important is that for many it is unclear whether those protective masks (or any other measures) help against the spread of the virus. Anyway, law is law. And it is perhaps even more important (according to Stickler, who is looking for the interests that are defended by constitutional rights) that a government which rules with one hand and then violates the rules with the other hand puts the ax at the roots of the rule of law – the rule of law that represents the interest for which freedom of expression was created. But unfortunately there is no constitutional right of administrative consistency in the USA (although the European Court of Justice, the German Bundesverfassungsgericht and the Dutch Supreme Court are beginning to think and act otherwise, it appears from recent case law). And that void, Stickler suggests, is perceived as an advantage by Trump.

We can consult the figures on China to see whether protective masks are effective or not. We give them in Fig. 2.

Fig. 2: Chinese coronavirus data (day 70 is February 28, 2020)

Fig. 2 shows that the measures taken by China have had effect. Everyone has been able to see the news of the dramatic events in Wuhan and conclude that wearing face masks has played a role in curbing the virus there. On January 24 (day 35) construction of emergency hospitals began, from which very event the severity of the outbreak could be deduced by governments in the rest of the world. It is likely that China wanted to cover up the outbreak for about three weeks if we assume that the pandemic’s developments in the USA and in China have been on an equal footing. In the USA, it took five weeks after the first infection became known there to reach 10,000 infections. If a similar dynamics worked in China, then the virus must have been recognized as a SARS-like virus end December / early January. But registration started to get under way after five weeks, with a relatively large number of infections during an outbreak’s first week. Anyway, the course of events after day 70 shows that social distancing and protective clothing and professional hospital care have worked.

This brings us to the last point that Mr Stickler wants to make: the differences in the extents to which applicable fundamental rights allow for measures such as total or partial lockdowns to be imposed and enforced. In this respect, the differences between the American jurisdictions on the one hand and those of China on the other are too large to allow improvising anything useful about.

I will save what Messrs Winner and Node have to say about the matter for later.