People think we’re playing a game called ‘slow the spread of the COVID-19 virus’. And we are. But at the same time, we’re also playing another game called ‘setting precedents’.
Suppose that you, as governor, declare even one kind of business to be ‘non-essential’, and claim the power to shut it down. If people don’t reject that claim, then they’ve ceded to you the power to do it later to whatever businesses (and more broadly, whatever activities of any kind) you want.
Also, suppose that instead of accepting the 21-day limit specified in the RSA that grants you emergency powers, you claim the power to issue an order that lasts for 38 days. Again, if people don’t reject that claim, then they’ve ceded to you the power to issue orders that last for any amount of time.
This is all complicated by the fact that, in order to formally reject either claim, they must ask the government to rule on whether the government is exceeding its constitutional authority. But that’s another discussion.
It’s also complicated by the fact that starting small helps avoid initial resistance. People have been commenting widely on how the list of ‘essential businesses’ seems to encompass practically everything, with a few obvious exceptions (like movie theaters). That’s not an accident, or an oversight.
By saying ‘You can go ahead and do most of the stuff you were going to do anyway, but not this little bit, which I’m forbidding for your own good’, you distract people from asking the crucial question of how any government that is supposed to derive its legitimate powers from the consent of the governed could do any of this.
Never forget that the federal income tax originally maxed out at 7% on incomes over $500 thousand. (And this was in 1916! That would correspond to an income of almost $12 million in 2020.) But that rate, and that amount, just had to be small enough to establish the precedent. Once that was done, rates could be raised, income limits could be lowered, new taxes could be introduced, and so on. And look where we’ve ended up. That is the power of precedent.
It’s like the old joke: A guy asks a woman if she’d sleep with him for $1 million. She says she would. He says, great, how about $50? Indignantly, she asks just what kind of person he thinks she is. He says, we’ve established what you are, and now we’re just haggling over the details.
By letting the governor get away with issuing emergency orders that are unconstitutional because they don’t seem to be such a big deal, and they’re for our own good, we’ve established what we are — and now we’re just haggling over the details.
