Jacob Sullum looks back on Covid and the Constitution. Here’s his conclusion:
COVID-19 did not kill the Constitution. But the crisis made it vividly clear that we cannot count on politicians or bureaucrats to worry about limits on their authority, especially when they believe they are doing what is necessary to protect the public from a deadly danger. The task of enforcing those limits falls to judges who are willing to stick their necks out.
“All government power in this country, no matter how well-intentioned, derives only from the state and federal constitutions,” Texas Supreme Court Justice Jimmy Blacklock noted a month and a half after the first lockdowns. “Government power cannot be exercised in conflict with these constitutions, even in a pandemic….If we tolerate unconstitutional government orders during an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we need it most.”
Epidemics are fearful times for understandable reasons and of course we have to act in ways to mitigate them that we find difficult and, at times, frightening.
But, as I uncover in my book, there was a deliberate attempt [by the U.K. government] to amplify our fears to encourage us to follow the lockdown rules.
Moreover, spontaneity is virtually eliminated under lockdown conditions. The rules can make it impossible to go out on the spur of the moment, whether that’s to visit friends or family or just to go to the pub.
More than ever, we live in a world where the exercise of individual judgement is frowned upon. Challenging the rules laid down by experts – in this case, mainstream epidemiologists – is viewed as putting everyone at risk of death. The only responsible thing to do, so the argument goes, is to be obedient and conform. This message is constantly repeated both in the mainstream media and on social media.
So lockdowns, regardless of their intended purpose, increase social isolation and intensify pre-existing loneliness. Working out how to tackle these related social problems is an urgent task.
Arendt observes that ‘it may even be that the true predicaments of our time will assume their authentic form – though not necessarily the cruelest – only when totalitarianism has become a thing of the past’.
So perhaps only when we have finally shaken off the locked-down world, will we be able to see our ‘true predicaments’ — namely, social breakdown, loneliness and vanishing spontaneity.
One thing is for sure. Lockdown, like totalitarianism, has made these predicaments a whole lot worse. The sooner we emerge from our hyper-regulated condition, the better.
As economist and historian Robert Higgs explains in his influential and alarming book Crisis and Leviathan, government power often expands during times of crisis. Sacrificing freedom for (supposed) security, a fearful public allows the government to increase its size and scope over domains of public life in the hope that things will soon return to normal. Eventually, the crisis ends, but government rarely revokes the powers it gained during the crisis.
The CDC gained the authority to prevent landlords from evicting tenants for non-payment of rent and extended its expiration date five times. And this is far from the only example.
Although mainly focused on his infrastructure bill, President Biden is still open to more stimulus payments. Many states continue to provide Covid-19 related unemployment benefits despite reopening and facing a shortage of labor. Travel bans from Europe and the UK continue despite medical research indicating there is a low risk of Covid-19 spread during a flight.
Creating the best post-covid world possible involves more than eradicating the virus. It also requires returning to pre-covid levels of government involvement in our lives. The ratchet effect stands in the way, and it lasts much longer than a pandemic.