COVID-19 as a threat to our constitutional republic

Hot Air points out the real danger of the authorities getting carried away in the panic over the coronavirus pandemic, and exercising authority that isn’t rightfully theirs.

Is it just me, or are any of you starting to feel distinctly uneasy?

Look, I understand the rationale behind these orders. Elected officials believe that the virus could still wipe us out … They’re making rules on the fly and doing whatever they can think of to show us that they’re working overtime to keep us safe.

But at the same time, the image of police rousting out citizens for the act of throwing a frisbee in the park or standing too close to each other at Dunkin’ Donuts is beyond disturbing. It simply feels wrong. Or perhaps it would be more accurate to say that it feels unamerican. And if the National Guard begins deploying armed, uniformed troops on the orders of various governors to start doing the same thing, it’s going to look like something out of an early Stephen King novel.

I’ve yet to find a single incident of anyone actually being arrested for violating these orders. Why? Because for the most part, people are simply complying. When a law enforcement official shows up and tells them to break up their little coffee clutch or clear out of the dog park, people are just wandering off and following instructions. Much like the case with Angela Chase and her friends in My So-Called Life, we appear to be rapidly adjusting to our new normal.

At some point, whether it’s next month or next year, the broad danger from the novel coronavirus will have passed. But will the old normal in terms of social interactions and freedom of movement fully return? I’m sure that’s what we all expect and hopefully, that will be the case. But looking around on the streets right in my home town, it’s difficult to shake off the feeling that something has fundamentally changed. And not for the better.

There’s more at the link.

I agree.  I’ve been perturbed to see many of the rules and regulations promulgated recently in the name of “public safety”.  The real problem is, no-one knows for sure just how bad the threat is in any given location.  We’re treating the few hundred inhabitants of Bugscuffle, Texas, in the same way as the few million residents of New York City or Los Angeles or Chicago.  The latter locations have a far greater concentration of people (i.e. far more per given area) than other places, with consequent risks that aren’t shared across the rest of the country.

The threat to our republic from authoritarian overreach is just as deadly, in its own way, as COVID-19.  The dilemma is, how do we react to an imminent, clear and present danger while preserving the structure of our society?  Effective reaction may require instant obedience, to be enforced if it isn’t volunteered.  On the other hand, such enforcement may, in itself, be constitutionally illegal and illegitimate.

KrisAnne Hall reminds us of the “purist” approach to our situation from a constitutional perspective.

The current application of state and local authority to mandate the closure of businesses and require the people to restrict their activities to a list of government-approved venues under the threat of force and punishment is antithetical to everything America was built upon.

These orders are arbitrary, completely lacking in due process, and rife with unbridled discretion.

Arbitrariness is the quality of being “determined by chance, whim, or impulse, and not by necessity, reason, or principle.” A shelter-in-place order that requires places of worship to close, where a finite number of people attend for less than a few hours once a week, but then claims that Walmart and liquor stores, where a limitless number of people come and go — every day, all day — may remain open, is completely arbitrary.

Where is the science, where is the reason that says that people sitting in a church are more susceptible to a virus than those who go to Walmart or the liquor store?

The answer is simple: It doesn’t exist.

. . .

Every constitution of every state in the union, as well as the U.S. Constitution, acknowledge freedom of religion and peaceably assembly as fundamental rights. Many state constitutions, as well as the U.S. Constitution, describe these rights as “inalienable rights” or “natural rights” meaning they do not come as permissions from governments, but pre-exist all law and government.

These rights are not the products of governments. To the contrary, governments exist for the sole purpose of securing these rights for the individual. Inherent in the securing of these rights is the prohibition against government defining the parameters of these rights.

. . .

It is a truly despotic government that can create unjust and unconstitutional activity and then also posses the power to set the limits and parameters upon which the people can protest those laws … What is even worse, these shelter-in-place orders not only do all of that, but many have also determined that the definition of freedom of religion can be relegated and confined to an internet broadcast and all those who are unable to meet this order are simply denied their right to worship and threatened by force of government to have no assembly whatsoever.

Finally, these shelter-in-place orders often establish that failure to comply with the order will result in civil or criminal penalties. Yet these orders do not define the elements of their newly invented crime, the evidence necessary to prove violation of the order, or the affirmative defenses available to the accused.
In their attempts to “ensure enforcement” of their orders, those governments have established those terms with a complete disregard for due process, evidentiary rules, and the rights of the people to be considered innocent until proven guilty.

. . .

William Pitt the Younger would likely remind us that “necessity is the plea for every infringement of human freedom. It is the argument of tyrants. It is the creed of slaves.” … when a government uses threat and force to compel behavior and the rights of the people are ignored and due process denied under the pretense of necessity, the people are not safe, the welfare of the people is not respected and the body of the people are in danger of becoming enslaved by the very government they’ve elected to secure their rights.

Again, more at the link.

I can’t argue with Ms. Hall’s arguments from a purely constitutional perspective.  However, from a practical perspective, this is where the irresistible force runs headlong into the immovable object.  In the face of a clear and present and imminent danger, there are times when constitutional niceties have to yield – temporarily – to exigent circumstances.  The problem is to ensure that the yielding remains temporary, and doesn’t become entrenched or permanent.  That’s the dilemma facing us.

The trouble is, it has become entrenched.  President Lincoln demonstrated this in his contempt for habeas corpus during the Civil War.  President Wilson demonstrated it in effectively “nationalizing” much of the US economy to fight Germany during the First World War.  That’s one of the points being used to criticize President Trump’s approach – which, let it be said, is fundamentally constitutional, in that he’s leaving a lot of the responsibility where it technically belongs, in the hands of the states.

Most presidents before Trump have stipulated to “dealing with problems on a national level with national coordination,” said Jeffrey Engel, director of presidential studies at Southern Methodist University. Trump, he said, “for philosophical and political reasons,” is “taking a narrow view of what is his responsibility.”

“So even though Trump’s sense of federalism has historic precedent, and could be said to be closer to what the founders considered the proper division between states and the federal government — with the former having the lead responsibility for citizens’ health and immediate well being — it is entirely out of step with almost every response we’ve seen from presidents facing crises in anyone’s living memory.”

. . .

No historical comparison is precise, but Trump and Wilson are the only American presidents to face serious national pandemics. The men were opposites in almost every way.

Wilson, a Southerner, was an intellectual, president of Princeton; Trump, a New Yorker, became president as a novice politician who said he relied on gold-plated instincts. Wilson wrote a book about constitutional government; Trump wrote “The Art of the Deal.” Wilson believed in deploying federal power, and he was also an avowed internationalist; Trump, who arrived in the presidency with limited ideological mooring, has renewed his call for stronger borders and immigration restrictions.

But Trump has also made clear that he believes states should shoulder responsibility. There is no mistaking his approach with Harry S. Truman’s “the buck stops here” view of accountability.

More at the link.

Personally, I prefer President Trump’s limited-federal-powers approach to that of an authoritarian statist like some other recent presidents I could name.  I think the former is more in tune with our Founding Fathers and our constitution.  However, the “government must save us!” brigade see it the other way around.

What’s the solution?  I don’t know – but I’m inclined to trust our Founding Fathers and their intentions, rather than surrender our constitutional republic to short-term pressures.  From that may come a permanent Big Brother-style “nanny state” – and that’s totally and completely unacceptable to me.

Peter