The COVID-19 pandemic, and the government responses to it, are creating some fissures in society and testing the concept of the rule of law. I personally would not object to capital punishment for the next person who uses the phrase “these unprecedented times,” but the unique situation nevertheless presents some questions which have been insufficiently examined.
There is growing restlessness in many parts of the country with the extent of lockdown orders and social distancing rules, which, under the aegis of emergency powers statues, have the effect of law. Some of this discontent, especially among some on the more libertarian Right, has evolved into episodes of outright civil disobedience. We see, for instance, examples in places such as Texas, where a woman opened her hair salon in defiance of state stay-at-home orders (and ultimately jailed for contempt of court for failing to demonstrate remorse to the satisfaction of the judge), and in Colorado, where a couple of restaurant owners defied state orders by opening their establishments; one (which ultimately saw its license suspended) drew record crowds of people packed inside on Mother’s Day.
Appeals to the “rule of law” are made by both sides. The governments in question state that these folks are violating the law and that the law must be enforced. The dissenters claim that the orders under which they are persecuted are arbitrary and, therefore, unconstitutional and invalid.
The late 19th-century British jurist A.V. Dicey probably best summarized the meaning of “rule of law” in his seminal 1885 tract Introduction to the Study of the Law of the Constitution. In characterizing the rule of law, Dicey wrote, “We mean, in the first place, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense, the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.”
That might seem to lend some credence to the dissenters, but for one thing: the orders promulgated by the various governors and other officials stem from emergency powers granted to them by duly enacted laws established “in the ordinary manner” by state legislatures. As the estimable Kevin Williamson points out over at National Review, we are, in fact, a nation governed by laws, and if we choose to break them, even in the name of justice (as, for example, Martin Luther King Jr. did), it is proper that there be consequences. This goes equally for recalcitrant restaurant owners and antifa thugs or anti-ICE protesters.
But the other side to this is that the government does not receive a carte blanche. It is right, especially in light of history, for people to be suspicious of the government. The illiberal rules, mandates, and orders issued in varying degrees by state governments, if left unchecked, do pose a threat to the free, democratic civil society we have inherited.
The rule of law works both ways; it is likely that the authority properly and legally granted in an emergency may be misapplied, overextended, or abused. We have rarely had the opportunity to test the widespread application of these strictures. Now that we do, it is incumbent on us as a people to evaluate them and make the necessary adjustments. The Wisconsin Supreme Court, in striking down Gov. Tony Evers’s “safer-at-home” orders earlier this month, set a welcome precedent for reaffirming the separation of powers as a critical component of the rule of law. Legislatures around the country will be contending with the economic fallout and how to address it, but of at least equal importance is to ensure the proper safeguards are in place to limit the scope of emergency powers prudently and to prevent their abuse in the future.
Government excesses, when they occur, should be challenged in court; when overly authoritarian imperfections in the law exist, the law affording emergency powers to governors should be changed “in the ordinary manner” by the legislatures.
I heard it said best by a most discerning Catholic priest last Sunday that the death of society is worse than the death of any individual. This may be the ultimate lesson of the 20th century. We are probably best served by the didactic Gospel advice to “render to Caesar that which is Caesar’s, and to God that which is God’s” and to use the system vouchsafed us by our ancestors to intercede when Caesar tries to take more than his share.
Kelly Sloan (@KVSloan25) is a Denver-based public affairs consultant and columnist.
