03 Nov Covid and Constitutional RoadKill
Is the U.S. Constitution the biggest roadkill on the 2020 campaign trail? Is faith in “American exceptionalism” blinding people to a death spiral of American democracy?
According to much of the media, this is a single-issue election: “It’s the pandemic, stupid,” as a Politico headline blared. Unfortunately, the media was not smart or honest enough to recognize the real issue this year: “It’s the Constitution, stupid.”
Surging Covid caseloads earlier this year led to a domino-like collapse on restraints on politicians across the land. In April, President Donald Trump proclaimed, “The federal government has absolute power. It has the power. As to whether or not I’ll use that power, we’ll see.” The Justice Department asked Congress for authorization to suspend habeas corpus for the duration of the pandemic but was rebuffed. In September, the Centers for Disease Control somehow acquired the power to suspend tens of millions of rental contracts and prohibit any evictions of tenants who ceased paying rent until after the end of December.
But these decrees could be child’s play compared to what could follow after the election.
The Constitution was intended to place politicians under “house arrest” – to strictly limit their power over private citizens in perpetuity. But in 2020, “house arrest” has been the default decree of many governors, and Democratic presidential candidate Joe Biden said he may impose a national lockdown if more people test positive for Covid. Biden says he changed his mind and won’t shut down the economy. But his rhetorical reversal could be as nonbinding as were campaign promises to keep the nation out of war by Woodrow Wilson in 1916, Franklin Roosevelt in 1940, and Lyndon Johnson in 1964.
Biden has run one of the most brazen fear-based presidential campaigns in modern memory. He routinely exaggerates Covid death tolls by a hundred- or a thousand-fold and talks as if every American family has lost a member or two from this plague. The more fears that politicians fan, the easier it becomes to seize boundless power.
Covid shutdown advocates flaunt claims of “science and data” like righteous priests invoking God and the Bible to sanctify scourging enemies. In the same way that local health czars felt entitled to shut down all private and public schools if the Covid positivity rate exceeded 0.000008% of the population, so the next president may feel entitled to nullify the Constitution if more than a statistically insignificant number of people nationwide test positive. And it won’t matter that the tests are wildly inaccurate or that WHO overestimated the Covid fatality rate by 50-fold. Bogus Covid test results will be sufficient to euthanize bonafide constitutional rights.
Attorney General William Barr said that imposing a “national lockdown” would be “the greatest intrusion on civil liberties in American history” except for slavery. But the dictatorial issues raised by lockdowns received as much attention from the media as the batting averages for the Amarillo Sod Poodles minor league baseball team.
Trump, to his credit, is now an outspoken opponent of lockdowns. But many Trump opponents are not opposed to dictators per se; they simply want different dictates. The passion for near-absolute power spurs the hostility increasingly shown towards the Constitution by many liberals, leftists, and violent protestors.
If a national lockdown is imposed, it won’t matter that it fails to keep people safe. So many individuals and agencies will benefit from the boundless power that they will always find a pretext to perpetuate restrictions. Health czars will respond to failure with the same type of ever greater force that characterized floundering socialist economies (brilliantly captured in John Jewkes’ 1948 masterpiece, Ordeal by Planning).
This year’s political developments have illustrated how easily politicians can nullify Americans’ rights merely by promising to play King Canute and magically sweep away a virus. Federal judge William Stickman IV ruled in September, “Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional.” But the response to the dictatorial governors such as Michigan’s Gretchen
Whitmer and New York’s Andrew Cuomo reveals that tens of millions of Americans will happily sacrifice anything and everything for promises of a risk-free life.
Can Americans read their future in the fetters proliferating in other English-speaking nations? Last week, British Prime Minister Boris Johnson announced another national lockdown – 30 days of unmitigated misery, shutting down all “nonessential businesses” and confining people to their homes unless they have a few specific reasons to step out into the cold, cruel world. A senior cabinet member said yesterday that Britain’s shutdown may be extended beyond one month because “we will always be driven by what the data shows.” In New Zealand, the government last week announced it was creating “quarantine centers” for anyone who tests positive and refuses to obey government orders. One Twitter wag scoffed, “New Zealand went from gun bans to concentration camps in less than a year.”
If Americans could be confident that either Trump or Biden would be leashed by the law, there would be less dread about who wins. But elections nowadays are becoming simply coronations via vote counts. The president will take an oath of office on Inauguration Day but then can do as he or she pleases. Instead of vox populi, vox dei – “The voice of the people is the voice of God’ – we have “Damned Rascal Democracy.”
No one is entitled to the amount of power that the winner of this presidential election will commandeer over the American people. As Thomas Jefferson warned in 1799, “In questions of power, let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitution.” Either the Constitution leashes the rulers, or the rulers leash the people. There is no middle way: there is no such thing as provisional legal inferiority to officialdom. If citizens trust rulers who blatantly violate the Constitution, they place themselves on the political chopping block.
Americans need to recognize the profound weaknesses revealed this year in democratic governments at every level. A strict adherence to the Bill of Rights is the surest way to reduce post-Election Day perils. If freedom is to survive, Americans must become far better informed of the dangers from government — regardless of who wins the Presidency.
James Bovard is the author of ten books, including Public Policy Hooligan, Attention Deficit Democracy, The Bush Betrayal, and Lost Rights: The Destruction of American Liberty. He has written for the New York Times, Wall Street Journal, Playboy, Washington Post, New Republic, Reader’s Digest, and many other publications. He is a member of the USA Today Board of Contributors, a frequent contributor to The Hill, and a contributing editor for American Conservative
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