The Arkansas Legislature is debating several proposed statutes that would bar businesses from requiring that their employees and customers be vaccinated against covid-19. These bills are a terrible idea and are fundamentally inconsistent with conservative values.
Conservatives have long believed in the sanctity of property and contract rights. And liberals also consider these rights to be highly important. Accordingly, in the United States, we generally allow parties to freely contract with whomever they choose and to restrict access to their property in whatever way they deem appropriate. These liberties are essential features of the American economic system, which is largely capitalist and market-based.
Strong property and contract rights are justifiable on what philosophers call consequentialist and deontological grounds. These rights both increase human welfare (they bring about good consequences) and are valuable as ends in themselves (i.e., they are important independent of the results they generate).
Property and contract rights are not absolute. There are many other important moral values in our society. And sometimes freedom of contract and property must give way to other compelling concerns, such as the need to preserve the physical safety and property of others. To illustrate, nuisance laws and environmental regulations bar us from using our land in ways that pollute the property of our neighbors and endanger their health.
But freedom of contract and property remain bedrock principles of our republic.
The laws under consideration that would prohibit employers from requiring that their employees and customers be vaccinated are fundamentally inconsistent with the rights to contract and property that conservatives claim to hold dear.
It is shocking to a liberal like me to see conservatives so quickly jettison their long-standing concern for property and contract rights.
I spend a fair amount of time trying to convince my fellow liberals that they should have greater appreciation for property, contract, markets, and capitalism. But it is now clear that it isn't just liberals that we need to worry about. Some conservatives are not even close to being as committed to markets, private enterprise, and liberty as they should be.
Statutes that restrict employer covid-19 vaccine requirements do not just override property and contract rights without a compelling justification; they do so in a context where businesses are exercising these rights to protect the physical health and even lives of their employees and customers.
We all need to understand precisely what is at issue. Some private firms are choosing to use their contract and property rights to only deal with individuals who are vaccinated. They are doing so because they quite rightly fear for the safety and lives of their customers and employees.
Businesses are not just exercising their contract and property rights for commercial purposes here. Instead, they are adopting vaccine mandates for such purposes and to protect the health and lives of the people they work with, the people they do business with, and the people they live with.
If private companies are prohibited from requiring proof of vaccination, then the government of the state will literally be telling businesses that they are forbidden from physically protecting their own customers and employees from the dangers of a deadly pandemic that has killed over 700,000 Americans.
Again, that is shocking--all the more so because it is "conservatives" who are arguing for such an egregious limitation on the rights of private enterprise.
I cannot think of any philosophy along the American political spectrum that would approve of barring employers from requiring vaccination to protect their customers and staff.
Limiting the right of employers to require vaccines is comparable to the government barring employers from mandating that their employees be sober on the job so they do not injure someone else while drunk. Or like prohibiting employers from requiring their employees have adequate training with dangerous equipment to minimize the risk of injury.
In this country, we sometimes limit property and contract rights when commercial values are plausibly outweighed by other moral concerns, such as physical safety. But here, physical safety and commercial values are on the same side. Thus, the case for restricting property and contractual freedoms is exceptionally weak.
I understand the concern many have for the jobs and finances of those who choose not to be vaccinated. And at no point during the pandemic have I supported a government-imposed national or statewide vaccine mandate.
But the solution is not to run roughshod over the fundamental rights to property and contract. Instead, it is something like the proposals also pending before the Legislature that would guarantee unemployment benefits to those who lose their job due to their vaccine status.
That is a reasonable compromise: It provides financial support for those who choose not to get vaccinated while preserving the contract and property rights of every Arkansas business--rights those businesses wish to exercise to prevent the unvaccinated from placing at risk the safety of their clients and workers.
Tell your elected officials to oppose any laws that would limit the right of Arkansas businesses to protect the health and lives of their own employees and customers.
Joshua M. Silverstein is a professor of law at the University of Arkansas at Little Rock, William H. Bowen School of Law. The opinions here are his own.