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Good Pandemic Outcomes Come from Good Boundaries

Boundaries that limited governments at least somewhat have let us improve COVID-19 outcomes significantly by operating many of our nursing homes appropriately, using existing antivirals somewhat normally, operating many organizations somewhat normally, and using new vaccines eventually.

James Anthony
June 18, 2021

Freedom requires good boundaries. Before I can be free to choose to let you get close to me, I must first be able to keep you away from me if I want to or need to.

Our free choices are valuable, so the boundaries that enable us to make our own free choices are valuable. To enable us to make our own free choices, governments—and also the other organizations we interact with—need to be held to good boundaries.

Wherever governments and other organizations have had boundaries that have somewhat limited them from getting in our way, these boundaries have enabled us to make choices that have greatly improved COVID-19 outcomes.

Not Moving Infected People into Nursing Homes

The SARS-CoV-2 virus is spread as an aerosol made up of extremely-small particles [1]. The virus is by far the most deadly when it’s caught by the elderly [2]. Fortunately, many of the elderly are substantially isolated from respiratory viruses by their residences. To protect these people, all that’s needed is due diligence when they go out and when others come in.

Well before the COVID-19 pandemic, state legislators had unconstitutionally delegated emergency powers to governors [3]. Also, national officials hadn’t delivered on the Constitution’s guarantees to states of a republican form of government that would be free of monarchical tyranny [4]. During the COVID-19 pandemic, state legislators didn’t constitutionally debate and vote on how the state governments would respond. Governors did accept the unconstitutional emergency powers and did use these powers [5].

Despite these constitutional violations, most state residents dodged this bullet [6]. Their governors didn’t mandate that nursing homes accept infected people and didn’t incentivize nursing homes to accept infected people. Or, their governors mandated precautions that would keep these people and their staffs isolated from the remaining at-risk elderly and their staffs.

Such boundaries have been affirmed to make a world of difference. An outbreak in a German nursing home was quenched by using a slow but approved test on 100% of the elderly and their staff, and by then segregating the elderly and staff who tested positive for the SARS-CoV-2 virus from the elderly who tested negative [7].

Letting People Sell and Buy Existing Antivirals

The SARS-CoV-2 is an RNA virus. RNA virus replication is known to be blocked, and therefore COVID-19 disease severity and spread could have reasonably been hoped to have been blocked, by early outpatient use of antivirals that were already approved for other uses and that had proven safe in those uses [8].

Despite proven safety, despite so-called off-label prescribing for new uses being established clinical practice [9], and despite antivirals being known to be most effective when they’re used early in the disease course, the FDA restricted the strategic national stockpile’s 150 million doses of hydroxychloroquine to be used only on hospitalized patients, and to be used only at the risk of being prescribed a placebo wherever a patient could be enrolled in a clinical study [10].

But separately from this national-government hoarding and restriction, state governments allowed physicians and pharmacists to provide prescriptions using their usual discretion in 15 states [11]. COVID-19 deaths per million people were lower than the national average in 12 of these 15 states, significantly exceeded the national average in only 2 of these 15 states, and in these 2 states were only the 10th and 16th highest among the nation’s 50 states [12].

Letting People Sell and Buy New Tests

Exposed people’s innate immune systems fight novel viruses, so exposed people are much-more likely to develop a novel viral disease when these people are exposed to much-higher loads of a novel virus [13].

When infected people’s virus emissions are highest, infected people’s primary disease symptoms are highest [14]. This means that if potentially-infected people pay attention to their symptoms and quarantine themselves to keep away from people who are at elevated risk of dying if they are exposed to higher loads of SARS-CoV-2 virus, then many virus emissions can be prevented.

Respiratory virus emissions increase from noninfectious levels to strongly infectious levels in about 1 day [15], and infectious emissions continue for on the order of 9 days [14]. This means that the benefits could be great from fast tests that are inexpensive, that are convenient to use at home, and that provide results quickly. Regardless of symptoms, people could test themselves just before going to work with or visit people who are at elevated risk, and if they test positive they could quarantine themselves away from those people. Most infectious emissions that expose people who are at elevated risk could then be prevented.

Unlike new therapeutic drugs that expose people to possibly unsafe substances, tests are known to be safe. Unlike drugs that are developed with substantial delays for discovery, safety testing, dosage testing, efficacy testing, and scaleup, fast tests can be developed with little delay, apart from artificial barriers erected by government bureaucrats.

By March 31, 2020, E25Bio developed a paper-strip test for SARD-CoV-2 antigens that was self-contained, could cost $10, and could provide results in 15 minutes. The FDA never approved sale or use of this test.

By August 26, Abbott developed the more-complex BinaxNOWTM test for SARS-CoV-2 antigens that is self-contained, costs $5, and provides results in 15 minutes. The FDA didn’t approve sale of this test for home use. HHS and the DoD bought up the entire supply for the balance of 2020—150 million tests. And the CDC dictated harmful rationing—allocating many units to people who wouldn’t imminently be going to see people who were at risk of dying, and not allowing anyone to be tested more than once a week [16].

State governments, for their parts, have long grabbed all powers [17] not enumerated to the national government [18]. Since control of food and drugs is not enumerated to the national government, control of food and drugs instead falls within the powers grabbed by the state governments. But no state pushed back against the FDA’s unconstitutional power grab by stepping in and approving fast tests for the state’s people.

Letting People Sell and Buy New Vaccines

Under competitive pressures, on January 11, 2000, a Chinese researcher sequenced the SARS-CoV-2 virus genome and distributed the sequence, and on January 13 the Moderna formulated the mRNA-1273 messenger RNA vaccine.

Under government-monopoly regulation, it took until May 18 for Moderna to produce safety-trial results, and it took until December 18 for Moderna to produce dosing- and efficacy-trial results and for the FDA to authorize emergency sale and use.

If people were allowed to sell and buy new vaccines freely, Moderna or other interested producers could have sold a messenger RNA vaccine to interested customers by April 1, 8½ months earlier [19].

Some customers would have gladly bought the new vaccine first, this would have created much-more safety data much sooner, and many-more customers would have gladly bought the new vaccine next.

Initially-scarce vaccine supplies would have been bought as a priority by people who were at elevated risk, in locations where outbreaks were greater. The wildest infection outbreaks would have been quickly damped out, and broader immunity would have been built up way faster.

Very-large fractions of the recorded deaths and of the possible disabilities would have been prevented by people simply proactively acting locally, appropriately, and quickly.

Like with fast tests, with vaccines no state government pushed back against the FDA’s unconstitutional power grab by stepping in and approving any trials, sale, or use.

Letting People Work, Live Freely, and Choose Their Own Precautions

Standing government power is like a loaded pistol in place on the wall in the first act of a play; in the second act it’s going to be used [20].

When governments’ agencies and powers are used in pandemics, we the people don’t get to make our own choices to keep nursing home residents safe, use existing antivirals, sell and use new tests, sell and use new vaccines, keep our jobs, and keep our lives free [21].

This lesson about government power has to be learned in life by each generation, usually only after the generation emerges from the fog of government-promoting teaching in government schools [22] and in government-regulated private schools. Now, though, with COVID-19, the government’s interference has been more in our faces, this time teaching this lesson in real time to even the younger generation, which was long forced into virtual schools and which is still being forced to wear masks.

For we the people to not be deprived of life, liberty, and property in crises [23], we must take appropriate actions at all times.

In normal times, we must insist that our representatives strip each government jurisdiction of the emergency powers it has grabbed away from we the people [24]. In crises, working as free individuals and working through force-multiplying free businesses, churches, and other private organizations, we must push back hard to limit governments and cronies.

Only good boundaries secure freedom.


  1. Gorbatenko, Daniil. “SARS-CoV-2 May Be Primarily Transmitted via Aerosols by a Minority of the Infected with Significant Lung Involvement.” SSRN, 8 Sep. 2020, papers.ssrn.com/sol3/papers.cfm?abstract_id=3608821. Accessed 18 June 2021.
  2. Anthony, James. “Living through Coronavirus, Living withrConstitution.us, 11 Aug. 2020, rconstitution.us/living-through-coronavirus-living-with-coronavirus/. Accessed 18 June 2021.
  3. Sunshine, Gregory, et al. “An Assessment of State Laws Providing Gubernatorial Authority to Remove Legal Barriers to Emergency Response.” Health Security, vol. 17, no. 2, 2019, pp. 156-61.
  4. Natelson, Robert G. “A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause.” Texas Law Review, vol. 80, 2002, pp. 807-57.
  5. Gostin, Lawrence O., and Lindsay F. Wiley. “Governmental Public Health Powers during the Covid-19 Pandemic: Stay-at-Home Orders, Business Closures, and Travel Restrictions.” JAMA, vol. 323, no. 21, 2 June 2020, pp. 2137-8.
  6. Morrison, Cassidy. “Five Governors Besides Cuomo Who Sent COVID-19-Positive Patients into Nursing Homes.” Washington Examiner, 1 Mar. 2021, www.washingtonexaminer.com/news/five-governors-cuomo-covid-19-positive-patients-nursing-homes. Accessed 18 June 2021.
  7. Krone, Manuel, et al. “Control of a COVID-19 Outbreak in a Nursing Home by General Screening and Cohort Isolation in Germany, March to May 2020.” Eurosurveillance, vol. 26, no. 1, 7 Jan. 2021, 2001365.
  8. McCullough, Peter A., et al. “Pathophysiological Basis and Rationale for Early Outpatient Treatment of SARS-CoV-2 (COVID-19) Infection.” The American Journal of Medicine, vol. 134, no. 1, Jan. 2020, pp. 16-22.
  9. Tabarrok, Alexander T. “Assessing the FDA via the Anomaly of Off-Label Drug Prescribing.” The Independent Review, vol. 5, no. 1, Summer 2000, pp. 25-53.
  10. “AAPS Sues the FDA to End Its Arbitrary Restrictions on Hydroxychloroquine.” American Association of Physicians and Surgeons, 17 Dec. 2020, aapsonline.org/hcqsuit/. Accessed 19 Mar. 2021.
  11. “HCQ Map.” America’s Frontline Doctors, americasfrontlinedoctors.org/treatments/hydroxychloroquine/hcq-map/. Accessed 18 June 2021.
  12. “United States.” Worldometers, www.worldometers.info/coronavirus/country/us/. Accessed 18 June 2021.
  13. Schultze, Joachim L., and Anna C. Aschenbrenner. “COVID-19 and the Human Innate Immune System.” Cell, vol. 184, no. 7, 1 Apr. 2021, pp. 1671-92.
  14. Cevik, Muge, et al. “SARS-CoV-2, SARS-CoV, and MERS-CoV Viral Load Dynamics, Duration of Viral Shedding, and Infectiousness: A Systematic Review and Meta-Analysis.” The Lancet Microbe, vol. 2, no. 1, Jan. 2021, pp. e13-e22.
  15. Larremore, Daniel B., et al. “Test Sensitivity Is Secondary to Frequency and Turnaround Time for COVID-19 Surveillance.” MedRxiv, 8 Sep. 2020, www.medrxiv.org/content/10.1101/2020.06.22.20136309v2.full.pdf. Accessed 19 Feb. 2021.
  16. Anthony, James. “Government Agencies Are Holding Back ‘Fast Tests’ That Could Be Saving Lives.” Foundation for Economic Education, 19 Sep. 2020, fee.org/articles/government-agencies-are-holding-back-fast-tests-that-could-be-saving-lives/. Accessed 19 Feb. 2021.
  17. Maddex, Robert L. State Constitutions of the United States. Congressional Quarterly, 1998, p. xvi.
  18. Diamond, Martin. “The Forgotten Doctrine of Enumerated Powers.” Publius, vol. 6, no. 4, Autumn 1976, pp. 187-93.
  19. Hooper, Charles L., and David R. Henderson. “The FDA’s Deadly Caution.” AIER Daily Economy, 16 Dec. 2020, www.aier.org/article/the-fdas-deadly-caution/. Accessed 19 Feb. 2021.
  20. “Chekhov’s Gun.” Wikipedia, 5 May 2021, en.wikipedia.org/wiki/Chekhov%27s_gun. Accessed 18 June 2021.
  21. Anthony, James. “The Use of Knowledge in Pandemics.” rConstitution.us, 19 Feb. 2021, rconstitution.us/the-use-of-knowledge-in-pandemics/. Accessed 19 Mar. 2021.
  22. Rockwell, Llewellyn H., Jr. “What If Public Schools Were Abolished?” Mises.org, 14 July 2020, mises.org/library/what-if-public-schools-were-abolished. Accessed 26 Dec. 2020
  23. Issacharoff, Samuel, and Richard H. Pildes. “Emergency Contexts without Emergency Powers: The United States’ Constitutional Approach to Rights during Wartime.” International Journal of Constitutional Law, vol. 2, no. 2, 2004, pp. 296-333.
  24. Anthony, James. “If You Won’t Repeal Emergency Powers, You Might Be a RINO.” rConstitution.us, 5 Mar. 2021, rconstitution.us/if-you-wont-repeal-emergency-powers-you-might-be-a-rino/. Accessed 18 June 2021.

James Anthony is the author of The Constitution Needs a Good Party: Good Government Comes from Good Boundaries and rConstitution Papers: Offsetting Powers Secure Our Rights. He has written articles in The Federalist, Foundation for Economic Education, American Thinker, American Greatness, and rConstitution.us. Mr. Anthony is an experienced chemical engineer with a master’s in mechanical engineering.


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