There are many ironies and contradictions in the various government reactions to the Wuhan virus, some quite yummy, like the municipalities that had banned plastic bags that are now forced to ban the re-usable kind, and demand the use of the plastic once again. Some day, when this is all over, we can sit around and laugh about it all.
This development, however, is not funny: a frightening number of governors, mayors and police officers have demonstrated how much of our democracy is currently entrusted to nascent totalitarians. I know, I know: to protect the public in a unique crisis, extraordinary measures must be taken, and because so many in our democracy don’t really possess the intelligence and sense of social responsibility that the Founders, in their idealistic fervor, decided to pretend they had (much less the common sense of the average meerkat), sometimes those measures must be accompanied by the force of law. However, because it is a democracy and one that begins with wariness of governments infringing on personal liberties, and will end with our governments being supported when they decided those liberties can be ignored on a whim and a hunch, the recent gusto with which elected officials and their police forces have felt justified in crushing those liberties are warnings that responsible citizens must not let go unpunished. I wrote about one example here, regarding Vermont’s governor’s move to stop the big box stores from selling items Maple Syrup big Brother considers “non-essential.” There are more.
Ethics Alarms already covered the father taken away in handcuffs for playing T-ball on on otherwise empty field with his wife and 6-year-old child, but the Philadephia police pulling people off buses for not wearing masks, or the aspiring fascist officer who tried to chase down single jogger on an empty beach initially escaped my attention. There are so many examples, you see.
Occasionally the courts have stepped in, though not nearly occasionally enough, (I think I’ll inject my “Where is the ACLU?” line now.) Louisville Mayor Greg Fischer—Guess what party?—issued an order last week prohibiting churches from gathering for Easter services even if congregants remained in their cars for a “drive-in” service.
“We’re saying no church worshiping,” the mayor decreed. Before Easter, however, U.S. District Judge Justin Walker rebuked the mayor, and granted a local Louisville church, On Fire Christian Center, a temporary restraining order allowing the church and presumably others to hold modified Easter gatherings.
“On Holy Thursday, an American mayor criminalized the communal celebration of Easter. That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion,” Walker wrote. “But two days ago, citing the need for social distancing during the current pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship — and even though it’s Easter. The Mayor’s decision is stunning. And it is, ‘beyond all reason,’ unconstitutional.”
Well, of course it was. The question would be too easy for a 5th grade civics test, so why didn’t the mayor’s ethics alarms, never mind his First Amendment alarms, ring before he made such an offensive decision? What about his aides? What about law enforcement, none of whom appears to have cautioned him, “Sir, we can’t ticket people who stay in their cars”?
Think about why.
I should also mention that Walker is one of those horrible conservative judges that President Trump appointed and Kentucky’s own Mitch McConnell has fast-tracked to the bench. We have been told that these judges are part of the plot to take away Americans’ rights. More irony.
Nevertheless, two churches in Greenville, Mississippi were holding drive-in services for Holy Week when police showed up and ordered churchgoers to leave or face a $500 fine. The city’s mayor, Erick Simmons, defended the ban by arguing that people might get out of their cars to use the bathroom. Yes, he really did. Also banning drive-in worship services were the 10-county area in south central Georgia (south and east of Macon), and Riverside County in southern California, though that one allowed an exception for Easter weekend–which makes no sense whatsoever. Democratic Nevada Governor Steve Sisolak issued a stay-at-home order on the Wednesday of Holy Week that specifically banned drive-in services.
Then we have Michigan governor Gretchen Witmer, who has been prominently mentioned as a possible running mate for Joe Biden.
As part of her ongoing impression of the revolutionary leader in Wood Allen’s “Bananas,” who declares upon seizing the presidency that the language of the small South American country is officially Swedish, Whitmer has decreed what items are and are not “essential” and what stores can and cannot sell as part of her totalitarian order issued last week.
Among the banned products are fruit and vegetable plants and seeds. Lottery tickets, on the other hand, are still permitted, because addicting citizens to gambling for the benefit of the state is essential. Paint, flooring, garden centers and furniture are also considered non-essential, so you can’t buy them either in Michigan. Nor can you buy car seats for children. Why? Because the Governor says so, that’s why!
Governor Whitmer also banned Michiganders from traveling “between residences” if they own a cottage or a summer home. For some reason, the ban only applies to Michigan residents, so an out-of-stater with a cottage could presumably still visit. The ban also still allows travel between states, so if a Michigander has a cottage in Wisconsin he can travel there without being arrested or fined by state police.
The officials who show their true colors in this crisis—and I’m not the only one taking down names—have signaled that they can’t be trusted, and neither can their enablers and apologists. As David Harsanyi wrote today, “[A]uthoritarianism isn’t defined as ‘strict obedience to authority at the expense of personal freedom except when there is a pandemic.’ Your declarative sentences and forceful feelings do not transform the meaning of either authoritarianism or freedom. Though if we dump our principles every time there’s a crisis, they might as well.”
Ethics Alarms 
This tweet did not age well.
You can add Gov.Hogan (R) of MD. I learned today that MD state police have responded to 16,000 reports of non-compliance to his stay at home order and have made 28 arrests.
MD as a blue state has conditioned citizens to report neighbors who do not obey. The order is bad enough but when neighbor turns on neighbor at the behest of the elected leaders we have a much bigger problem. I just hope my attic is big enough to hide all those who don’t obey.
I voted for Hogan but he has repudiated every ideal held by conservative libertarians. So much for being the Free State.
This happened where I live. A family received a notice from the city government that they had been reported for non-compliance. It’s frightening.
Once again, the Left does what it accuses the Right of doing.
I sent an email to our governor yesterday, suggesting that the state government come up with specific, measurable, tangible criteria for giving back our freedoms…all of them (another thanks to Chris Marschner for planting the idea in my brain). And then they should broadcast them. I feel pretty confident about my situation – our restrictions are less and our governor is a pretty conservative Republican – but Vermont, Nevada, Colorado, and numerous other places are having not just their freedoms, but their rights, “temporarily” taken away with no real concrete indication of when they will get them back.
Again, what will happen the next time a Chinese virus crosses an international border? I don’t have a good feeling.
Good for you Joel
“Once again, the Left does what it accuses the Right of doing.”
My first rule of interpreting Leftist rhetoric.
I recently had opportunity to discuss this issue with a Spaniard. He was of the opinion that it was proper for people to be fined for being outside. I disagreed. The disagreement boiled down to whether the government should protect people’s right to movement or people’s right to not get sick. I don’t believe there is a right for someone not to get sick; what’s preventing you from catching a disease if you were in nature, besides your own discretion?
I am of the belief that any government mandating gatherings illegal is overstepping and a violation of the Constitution. However, I also understand that people will gather, maximizing their chances of getting sick, regardless of what guidelines or edicts governments issue. It ends up being a balance on whether we minimize overburdening healthcare systems or preserve our Constitutional rights. I think I’d have to fall on the Constitutional rights side, given the actions of many politicians and police officials. I think, to butcher a quote used here fairly regularly, to have enough liberty, one must have too much. This situation with the Wuhan Virus is no exception.
Andrew,
People from other nations view the ideals of personal liberty through the lens of ancient feudal systems and not through an American Constitutional perspective.
What bothers me is the idea that gatherings of more than X people are banned. It seems to me that it is concentration of bodies not the actual number. Would 9 people gathering legally in a confined elevator be worse than 15 people in a lecture hall? Every city has a fire marshal who determines maximum occupany for a given area. It seems appropriate to evaluate population density unless of course you want to shut down groups who meet to pressure government into giving them their rights back.
I understand that the guy wouldn’t have the same background as I have, and I tried to explain my reasoning to him. But he still believes that social goods trump individual liberties. And that’s fine. I don’t think either of us could convince the other to our way of thinking. What is worrisome to me is that it appears that so many Americans are forgetting or never knew the individualistic nature of America that has made the Great Experiment so successful these last 250 odd years.
Some long for the feudal system in which serfs willingly traded protection from invaders by the noble in exchange for servitude.
Spain was fascist for a long time.
Quarantine orders in the U.S. have been legal for a long time and for good reason: Just like their are certain limits to free speech i. e. You can’t shout “fire” in a crowded movie theater as it might lead to panic and danger to life and limb, there are limits to freedom of assembly when it might be dangerous to a group of people. Fortunately wise officials will consider safety issues when the danger is minimal.
Wayne,
You are parrotting the same legally dubious arguments all authoritarians use.
The shout fire argument only works when there is no fire but in the event of a fire there is no problem.
You might as well say that no rights are inalienable if that right might impart some risk to another. Quarantine orders have been used against those who were known to have a contagion. No governor can demonstrate that mass quarantines are the only means by which the desired outcome can be achieved.
All limits on our inalienable rights are constrained by the requirement that government use the least intrusive / restrictive method. I invite all of the legal experts to correct my understanding if needed.
Except it is legal to shout fire in a crowded theater. It never has been illegal. That line comes from Justice Holmes’s majority opinion in Abrams vs United States. It was describing a hypothetical situation where he believed the First Amendment would not guarantee protection. The quote qualifies the panic with an and, indicating that the falsely shouting fire would have to cause a panic to not be protected. Regardless, Abrams vs United States was overturned in Brandenburg vs Ohio, where speech is protected unless it is intended to produce imminent lawless action and does produce that desired effect.
That would indicate to me that the freedom to peaceably assemble, also guaranteed by the First Amendment, would also be protected under similar standards, that is people would be allowed to gather unless they intended to break laws and accomplished that goal. Forced quarantine would seem to be overruled by the First Amendment in this case, would it not?
“That would indicate to me that the freedom to peaceably assemble, also guaranteed by the First Amendment, would also be protected under similar standards, that is people would be allowed to gather unless they intended to break laws and accomplished that goal. Forced quarantine would seem to be overruled by the First Amendment in this case, would it not?”
Malicious intent isn’t the only grounds for finding someone criminally liable.
Negligence and reckless conduct count for some prosecutions, do they not?
If that were the case, gathering in dense groups, given the epidemic conditions certain locales are facing would very much be defined as reckless conduct or negligence.
The problem as I see it, is that there just aren’t any laws breaking up groups assembling. So far there are only executive orders…executive orders that seem *well outside* what can be considered within the spirit of Emergency Powers of an executive. By now State Legislatures should have crafted applicable laws breaking up assemblies that are considered “reckless” disregard for public safety. And those laws had better be written with clear end-dates and tied entirely to the current pandemic to ensure they don’t run afoul of any 1st Amendment challenges.
Except recklessness would have to be on an individual basis, would it not? And any attempt at charging someone with reckless conduct would most likely be on grounds too vague to withstand an appeal, unless it was carefully crafted into legislation. Even then, it would be dubious whether any of those laws could withstand a 1st Amendment challenge. The 1st Amendment doesn’t give an exception for pandemics.
Groups are made up of individuals.
Reckless to whom. I think base jumping and rock climbing is reckless yet we have no laws about that.
The recklessnes to which you speak must affect an innocent bystander to have any merit.
Congregating in a group where such congregation is voluntary the question am I being charged for recklessness because I put myself in a group that could be infected or because I could infect others? If the latter is true then how does probable cause manifest itself?
I’m not sure there many analogous scenarios I can point you to. But this isn’t exactly something we have to address with any serious consistency in history, as these things don’t pop up with this apparent severity but once a century.
But yes, knowing the characteristics of this virus’s spread, mass groups of people are reckless towards those not inside the group, no matter how willing the participants of the group are, each of them are individually engaging in conduct that very likely will spread the virus to people who weren’t part of the group.
Wayne the key word here is *wise*. I’m not convinced of the wisdom of some of these leaders and their decisions should be readily scrutinized, especially in crisis situations, where power grabs are likely. I mean banning the sale of seeds? That’s just ridiculous.
Everyone here might want to watch to first half of the Coronavirus Briefing today. A very unpresidential Trump unloaded on the assembled media and the opposition party. It was amusing to hear the press suddenly mentioning the Constitution and “enumerated powers” after all the clamoring for the President to “do something”. I really hope Trump was practicing judo or else we are about to get what the Axis has been clamoring for the last four years.
https://www.youtube.com/watch?v=x4nYy-3AW9E, about 1 hour in it starts and goes for a bit, then it gets absurd…
Anyone know of a site tracking these assaults on the Bil of rights on a per state basis? While I cannot move due to other issues I want the list handy come November.
And yes we should have the election. How candidates and incumbents handle a crisis is VERY relevant to my support. My Governor lost my vote, as what is necessary for various health issues is not obvious to nimrods.
When a reporter asked him how he would compel governors to reopen their states’ economies during the outbreak, Trump responded, “When somebody is the president of the United States, the authority is total. And that’s the way it’s got to be.”
Earlier Monday, the governors of California, Washington, and Oregon said they were working together on a West Coast plan to safely reopen those states, and New York Gov. Andrew Cuomo unveiled a multi-state coalition to coordinate on ways to reopen the region’s economy as the spread of the virus becomes more manageable
CNN’s Kaitlan Collins pressed Trump during Monday’s briefing on his baseless claim that his “authority is total” as president, saying, “That is not true. Who told you that?”
“Yeah, so you know what we’re going to do?” Trump replied. “We are going to write up papers on this. It’s not going to be necessary because the governors need us one way or the other. Because ultimately it comes with the federal government.”
“The federal government has absolute power. As to whether I’ll use that power, we’ll see.”
He added: “I’d rather have [the states] make decisions, but I have absolute right to make the decisions if I want to.”
He – and Pence, who described the President’s powers as “plenary” might be right.
https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/
Multi-state coalition – hmm. Sounds like a confederacy to me.
Sailing in dangerous waters.
The behavior of the governors to data is that of being reactive and making demands on the federal government. The governors seem to believe that they have all the authority but very little responsibility. They go on TV and talk at length about needing XY or Z from the feds. But when the feds say no they whine. All the President needs to do is end the National State of emergency and the federal disaster assistance ends. That would effectively put the governors on the proverbial hot seat. Governors are not entitled to restrict rights of US citizens. The Commerce Clause could be invoked to allow the opening of businesses who engage in interstate commerce. The governors cannot restrict travel through the state by non-citizens of the state nor can they block or tax shipments arriving from other states. How long do you think a governor could last politically when the surrounding states or other parts of the country are healing economically while they maintain draconian restrictions on their citizens?
The irony in the question is can the president force the governors to stop restricting the rights of citizens guaranteed by the Constitution. It is the Governors who are abusing power through restrictions not the president when he works to reestablish citizen rights.
So to respond to Jonathan Karl’s statement regarding Article 10 that reserves all powers not enumerated to the states Trump could have asked him if a state decided to reimpose involuntary servitude or banning the practice of religion the governors could do so. The answer is no because of the supremacy clause would supersede and state Constitution allowing such rules to be enforced.
Trumps response – clumsy sure, wrong – not by a longshot.
The remedy to such actions must come from the judiciary, as it has been for a century and a half.
Michael I agree the Judiciary would render the final verdict. However the Judiciary decides not when but who has the power to decide. If this were an equity issue they may approve a plan of action to ameliorate a problem but this has nothing to do with equity. This is a Constitutional question as I see it.
Personally, I hold the governors responsible for their orders. The President made recommendations and each governor did as he or she saw fit. What is in the power of the president is to lift the national emergency order and end the disaster assistance funding to the states. It is highly unlikely that he would lift that order until his task force makes such a recommendation.
The president is responsible for the family of states not just the one. The very argument that permits the issuance of these stay at home orders is that the decision makers have to look out for the group as a whole and not the individual citizen. Thus, a balancing test must occur. Does it matter if we all survive in a post-apocalyptic economic state do we come out of this as economically strong as possible knowing that additional persons may succumb before it is over.
You must really object to the way Mary Mallon was treated.
” How long do you think a governor could last politically when the surrounding states or other parts of the country are healing economically while they maintain draconian restrictions on their citizens? ”
Long enough for the difference in death rates to become obvious. Shouldn’t take more than 6 weeks max, probably half that.
Zoe
Actually I do. The history of Typhoid Mary is based not on science but on suspicion. Such suspicion may very well have been true. But as I understand the case, a sanitary engineer examined Mary’s employment history and found others had gotten sick. All of this occurred around the turn of the 20th century in New York. The facts are conveniently laid out by Sober but Salmonella typhi could have originated anywhere in the food chain.
The fact is that at least in her case there was circumstantial evidence that she was an asymptomatic carrier. Today the government assumes everyone is an asymptomatic carrier unless you work in an essential occupation on their list of occupations.
The policy you espouse would result in literally tens of millions of Mary Mallons.
Some of whom would not be infectious. Not immediately,
” Today the government assumes everyone is an asymptomatic carrier unless you work in an essential occupation on their list of occupations.”
Oh they assume some, even all of those are asymptomatic carriers too. It’s a compromise, die from virus, die from starvation, an optimisation problem that seeks to minimise total deaths. Solved with varied degrees of competence, and in different circumstances with different answers that will change over time.
All played by ear, with a novel virus where we are forced to make assumptions, educated guesses, including balancing higher but known and limited risks with lower but possibly explosively growing ones. Often with effects only measurable weeks after cause.
Lots of local tinpot hitlers who salivate at the thought of abusing their temporary and quite arguably unconstitutional power, but even more irresponsible selfish know nothings who potentially could kill millions because they don’t believe in book larnin. Yet somehow no-one has used a 2nd amendment solution on them in self defence. Yet. Not in the US.
Looking for silver linings here, that’s one.
On a related note…
http://reason.com/2020/04/12/official-covid-19-numbers-represent-just-6-of-total-infections-a-new-analysis-suggests/
I have this silly little fantasy; just a fantasy, mind you, that goes like this: A group of masked men, or men in Revolutionary War Garb, finds a way to grab all of these tyrannical mayors and governor in a synchronized fashion, quickly bring them to a public gathering near a mighty Oak tree (my fantasy, my details) with horses and ropes pre-positioned, and just sits them on the horses for a few minutes. No need to actually harm them to actually hang them, just sit them up there until they wet themselves.
This would give them a badly-needed dose of humility and reality that would rattle their cages, and those of any other would-be tyrants who forget what country this is, and that that martial blood that freed us from the yoke of that fat, spoiled man-child across the pond some 250 years ago still runs in our veins..
And just like that the Left likes “States’ Rights”
…..like children with very short memories.
That sign in the Walmart window is a good illustration of what happens when dictatorial-minded bureaucrats decide what is and what isn’t essential.
No, the governor of Michigan did not ban the sale of child car seats. But, she did ban a whole batch of products, applying God-knows-what criteria. So, that particular Walmart store, like many other stores, marked off areas that included the banned goods, both so customers and employees would know and to protect themselves. In doing so, some goods that were not banned were included in the ‘off-limits’ area. What were they supposed to do? Change their shelving every time a new decree came out on what was banned and what wasn’t? Re-train their employees every time there was a change? Program their check-out registers so lights would flash and alarms would sound whenever a banned items was scanned?
Though she didn’t ban child car seats, Whitmer nevertheless provides a good example of the trouble we’ve seen (and she is not alone). Since her executive order declaring a state of emergency on March 11, she has issued 38 more COVID-91 executive orders, more than one a day. A few rescinded previous orders. I certainly don’t have the patience to go through all of them, but there is a strong whiff of autocracy coming right through my laptop screen.
My wife’s computer monitor burned up a few months ago. I have dual monitors on my desk, so I gave her one of mine to borrow. When I started working at home, a second monitor really became important. I needed to buy a new one for my wife so I could reclaim mine.
For me, that second monitor was “essential”. Who is any governor – or any government official for that matter – to tell me otherwise? If a store is open, there is absolutely no reason (other than exerting control) to wall off some products over others.
Here is another perspective.
http://reason.com/2020/04/17/will-covid-19-help-americans-break-the-habit-of-deferring-to-centralized-authority/#comment-8214961