Emergency measures: Choosing sides - Granite Grok

Emergency measures: Choosing sides

A lot of people don’t believe this, but it is possible to be concerned about slowing the spread of COVID-19 and also be concerned about slowing the erosion of fundamental liberties through unconstitutional emergency measures.

As soon as you try to question the legitimacy of, say, the governor’s latest ’emergency orders’, many people — even people who would normally call themselves ‘libertarians’ —  assume that you’re just itching to get out there, take no precautions, and let the chips fall where they may.

Very few people seem willing to believe that you can, on the one hand, understand what’s going on, and appreciate its seriousness, and have every intention of following recommended best practices… and that you can, on the other hand, oppose the unconstitutional and unconscionable seizure of power, and the creation of precedents that will do more harm to liberty than any virus could ever do to humanity.

The whole idea of rights is this:  When there are problems to be solved, what rights do is take certain kinds of solutions off the table before they can even be considered.

That is, whatever the problem is, if we have a right to freedom of speech, then solutions that involve making people shut up simply cannot be considered.  If we have a right to keep and bear arms, then solutions that involve disarming people simply cannot be considered.  If we have a right to be free from warrantless searches, then solutions that involve searches absent probable cause simply cannot be considered.  And so on.

So we are dealing with two different kinds of crises.  The first is biological and medical.  The second is political.

How we deal with the first crisis will determine how many people get infected, how they’ll be treated, and whether our medical resources will be stretched beyond their capacity to deal with the situation effectively.

How we deal with the second crisis will determine whether, when this is all over, we will have rights, or merely permissions.

If fear can serve as the justification for eliminating rights, or even suspending them, then there are no rights, because there will always be something to fear.  Indeed, for any government that wants to diminish a particular right, one of the goals of that government will be to make people afraid of what might happen if some relatively small number of people exercise that right in order to do wrong.

Here’s one way to think about it.  Imagine an object that can’t be moved.  Now imagine a force that can move anything.  They can’t both exist in the same universe, right?   The existence of either makes the other impossible.

To have one, we must give up the other.  We have to choose.

The same is true of rights, versus the various rhetorical techniques that have been developed by courts over the years for dissolving rights — techniques like ‘balancing tests’, and ‘levels of scrutiny’, and ‘compelling government interests’… including ’emergency powers’.

If rights (which are like objects that can’t be moved) exist, then those tests and levels and interests and powers (which are like forces that can move anything) cannot exist.  Or, if those things exist, rights cannot exist.  The existence of either makes the other impossible.

To have one, we must give up the other.  We have to choose.

People who say, ‘Well, I can’t really identify any constitutional grant of power that would justify these emergency actions, but something has to be done, so let’s do what we’re told and worry about legitimacy later’, are making one choice.

People who agree with President Kennedy that there is little value in insuring the survival of our nation if our traditions do not survive with it, who agree with General Stark that death is not the worst of evils, and who join with Senator Orrin Hatch in repudiating the approach of those who believe to solve American problems you simply become something other than American, are making the other choice.

I know whose side I’m on.