Good Friday Morning to everyone, including lawyers who experience a toilet getting flushed in the middle of oral arguments at the Supreme Court. I have to admit — law school prepared me for many things, but a justice flushing a toilet in the middle of oral arguments is not one of them. I hope the law professors in the audience are adding that to your curriculum.
There was no podcast this past week because a “derecho storm” blew through my area of the world and knocked out power. Barring another act of nature, I’ll be back in the recording studio this next weekend. Fortunately, I had written my CI column before the storms rolled through, and it is linked below. This week I’m sharing some thoughts I’ve had about the problem of consent, government legitimacy, and abuse of the police powers by states. Links to follow.
Where you can find me this week
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Coronavirus strips away fake virtues – The Conservative Institute.
Joe Biden: The Tapioca Candidate – The Conservative Institute.
Public Health, police powers, and the decreasing amount of consent
In the founding generation, everyone agreed that the government drew its legitimacy from the “consent of the governed.” The idea of consent was etched into the Declaration of Independence, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...” Consent is implied in the preamble of the Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
“We the People” give consent to this project. From the outset, the founding generation was explicit in who granted the national government its power. That grant of authority came from the people with the understanding that it could get taken away by the people due to abuses by the government. Respect and consent are earned, not assumed. That generation was steeped in the ideas of the enlightenment and reformation. The writer who most clearly enunciated the spirit of the age was John Locke.
In 1690, Locke released his famous tract, Second Treatise on Government. It’s not a long work, but in it, he uses the word “consent” 111 times and alludes to it far more often. Locke wrote during a time when the monarchy and aristocracy still held more power. He was trying to make a case that the people ultimately had more power than the monarch or aristocracy. Both Locke and the founders believed that if consent or legitimacy was lost, the people had the authority to overthrow the government. The Declaration states: “…whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…”
I’ve been thinking more about the issue of consent as I’ve watched some of these states issue harsh stay-at-home orders and the protests growing out from them. Consent is also an important factor in recent police abuse stories in the news. State police powers are using public health powers so tightly around people’s lives that it is sparking America’s immune reaction to such abuse, causing protests and more.
The (short train of) abuses
We’ve witnessed in places like Michigan, California, and other states protests pop-up. These aren’t overly partisan protests. They’re bipartisan with people demanding they be allowed to live more freely. It’s not that they don’t want all the regulations thrown out the window, it’s that they want to do basic things like go the beach, garden, or shop in a place other than a grocery store.
How a government makes decisions and laws matters. Those laws get enforced on the people who give the government its legitimacy. One of the reasons the Soviet Union fell, according to the philosopher Francis Fukuyama, is that the communist regime lost legitimacy in the eyes of the people. Communism based its entire mythos around the idea that it could deliver economically while capitalism was expected to fail.
The capitalist collapse never happened, and the Soviet people, looking around at their neighbors — not just the United States — saw that their status in the world was a mirage. The Soviet Union was broken, couldn’t deliver the goods, and lacked legitimacy. What came after the USSR hasn’t been a success story either, but the problem of legitimacy is real. Every government on earth has to establish that in the eyes of its people.
America has been shut down now for effectively two months. While many shutdown orders didn’t start until late March or early April, individual citizens were already sheltering in place by that time. And when responsible people start looking around and seeing their government take late actions, and some of those actions were abusive, it detracts from the legitimacy of the government.
I’m not saying that the United States government is going to collapse. Far from it. What I am saying is that when people protest or avoid those kinds of orders, what they’re doing is telling their government that those orders have no legitimacy. The people refuse to grant consent to that kind of government. Now, when it comes to short term laws and rules that we’re experiencing in a pandemic, people are more accomodating. Americans have shown remarkable resiliency and patience with the government. But when things start improving, and some governors and states get more draconian in their measures, all that strains the relationship between the governing and the governed.
The second kind of abuse
If “how” of enforcement tactics are getting questioned in this pandemic, the “who” these tactics are getting enforced against also needs examining. Governments are not applying social distancing measures the same way across states and racial groups. New York — a state with Democratic Governor and a democratic-socialist as Mayor — is instructive on this point. In the bluest of blue states, black minorities are experiencing a different quarantine experience, both in outcomes of the virus and in police patrols.
Photographers are walking around NYC’s parks and finding that the richer and whiter parks in the city have less police presence and enforcement of social distancing. Whereas in the Bronx, where more minorities live, police are far more present and enforcing guidelines. This point is, of course, anecdotal evidence. But we’ve seen many other recorded-on-video instances of police officers in New York beating people without a mask, or arresting them.
Add to this that if you’re in the Bronx and black, you’re far more likely to die of the coronavirus than a white counterpart in Manhatten. Twice as likely to die. Similar trends have been found in Michigan. (And while I’m focusing on trends and stories involving black Americas, it should also be noted that NYC Mayor Bill de Blasio hasn’t been much better for Jews, explicitly targeting them in tweets and press conferences).
That is the background for the current moment for blacks. It’s the backdrop that the story of Ahmaud Arbery has appeared, a black man who was shot by two white men chasing him (no crime was involved, and they were not police). I can’t put it much better than David Harsanyi at National Review:
Arbery, an unarmed man, had zero reason to take orders from three loud and menacing strangers. Judging from the video, he’s the one who acted in self-defense. Had Arbery been armed, he would have had far more justification to shoot than the McMichaels.
The McMichael posse didn’t mistakenly shoot down an innocent man in a botched effort to protect their home or their property. It is unlikely that their lives were in any real danger — and if they were, it was a precarious situation of their own making.
Looking at the facts and evidence right now, there’s little reason as to why the men involved shouldn’t be in jail. It seems like an apparent murder by a group of white men acting as a posse.
This story brings me back to the point of legitimacy. If a government is not treating one segment of society the same as others, or people don’t get the same outcomes, that will destroy the legitimacy of the government in the eyes of those experiencing that abuse. That’s true even in situations like Arbery, where non-governmental actors killed him. People expect an answer for what happened to him.
In purely theoretical terms, a society experiencing a pandemic should experience it the same way — adjusting for obvious things like age and pre-existing conditions that have direct impacts on health. That’s not happening, and it’s a red flag for governors in states where that’s happening. It’s a red flag regarding the legitimacy of those new rules.
Right now, there are two problems on the legitimacy front, how state and the federal government are enforcing new requirements, and whom these regulations are getting enforced. Fortunately, only some states are engaging in these behaviors, so it won’t lead to a system-wide issue for all forms of government in America. But these are trends that need to get stopped to prevent more parts of the government losing their legitimacy.
We have a more significant threat looming on the horizon in the form of China. We need to make sure we’re ready, as a nation, to confront that threat. It’s imperative for a victory that we do.
Links of the week
Coronavirus Disease (COVID-19) – the data – Our World In Data
Foreword: On Security: The American system of innovation, combining strategic investment and private enterprise, made our nation’s industry the envy of the world. It can pave the way for widespread prosperity and security again today. – Senator Tom Cotton
How ‘Never Trumpers’ Crashed The Democratic Party – Perry Bacon Jr., FiveThirtyEight
Explaining the Intense Diplomatic Battle Between the U.S. and China: The Chinese Communist Party’s ‘Wolf Warriors’ have Secretary Pompeo in their crosshairs right now, but their agenda will outlast the Trump administration. – Thomas Joscelyn, The Dispatch
‘Flattening the Curve’ Was Only the First Step: Hospital capacity wasn’t overrun, but we’ve still got a long way to go. – Declan Garvey, The Dispatch
What’s Going On with New York? – Jim Geraghty, National Review
Policy and Punditry Need to Adapt to New Virus Data – Sean Trende, RealClearPolitics
Twitter Thread(s) of the week
Satire piece of the week
DALLAS, TX—Clad in fedoras, smoking cigars, and wielding Tommy guns, prohibition enforcement agents raided a speakeasy salon today, busting a dangerous gang of haircutting criminals.
The community thanked the brave agents for keeping them safe from the underground haircutting crime ring. The business has been operating in secret, with hair stylists opening a little eye slot and asking for the password before letting ladies in to get their hair cut. Authorities believe they have smuggled hundreds of desperate women in for cuts, colors, and even deadly shampoos.
“Freeze, toots!” a Bureau of Salon Prohibition enforcement agent shouted as he busted into the underground salon. The hairstylists scrambled to press a button that turned the salon into a take-out Chinese restaurant, but it was too late. “Ya can’t hornswoggle me, toots, see?
Thanks for reading!