Setting a Precedent

National Review, March 31 2020

Whether Britain’s COVID-19 lockdown will be worth what it will cost — a bill involving far more than just money — was and is, for now, unknowable. That it would be used as an excuse by empowered authoritarians to go even further than highly intrusive regulations allowed them to go was, by contrast, all too predictable. When the state is given a mile, its rank and file will generally add a few inches all of their own. Between them, police and local bureaucrats have already distinguished themselves with stunts such as pulling over cars to check if their drivers are on “appropriate” journeys, dyeing a beautiful lake black to discourage visitors, and deeming Easter eggs “non-essential” purchases.

To be fair, stung by the public outcry over excesses such as these, Tory transport minister Grant Shapps came out with this ringing defense of freedom:

The police are doing a difficult job and they are doing it well . . . I am sure there are individual examples where perhaps you look at it and think that is perhaps a bit further than they should have gone . . .

Patrick Henry, eat your heart out.

But beyond these largely petty instances of overreach, there are more profound reasons to worry, as highlighted in a recent interview by Lord Sumption, a retired U.K. Supreme Court Justice. His comments merit listening to — on both sides of the Atlantic. Americans have the Constitution, and thus less cause for concern than the Brits across the pond. Nevertheless, the judges who are supposed to uphold the Constitution are not (to borrow a fashionable adjective) immune from the influences that shift Americans’ opinions. Nobody should deny that combating COVID-19 is a brutal challenge, and one that is giving rise to brutal policy dilemmas. But emergencies teach bad habits as well as good, including the setting of precedents that are a menace to individual liberty.

Sumption explains how it begins:

The real problem is that when human societies lose their freedom, it’s not usually because tyrants have taken it away. It’s usually because people willingly surrender their freedom in return for protection against some external threat. And the threat is usually a real threat but usually exaggerated. That’s what I fear we are seeing now. The pressure on politicians has come from the public. They want action. They don’t pause to ask whether the action will work. They don’t ask themselves whether the cost will be worth paying. They want action anyway.

Of course, people may reassure themselves with the thought that an extraordinary threat requires extraordinary measures: Once it has passed, everything will return to normal. But to believe that is to believe a great deal, not least that our notions of “normal” won’t have changed substantially for the worse.

This is more than a matter of the historical fact that governments have been reluctant to give up powers that they have been handed — or, as during this crisis, put to use. To imagine that large swathes of America could be shut down by administrative order would, six months ago, have been no more than the stuff of prepper paranoia, and yet here we are. And powers that have been used once can be used again, perhaps not in the same way, and perhaps not to the same extent, but they will be used. After all, an “emergency” can be a conveniently flexible concept. Those, for example, who talk of a “climate emergency” will be paying close attention to the precedents that are now being set, as, doubtless, will be foes of the Second Amendment.

The chances that the COVID-19 precedents may be abused will have only been boosted by the increase in the size of the state that the pandemic will leave in its wake, an increase made no less alarming by the irony that blunders by government have made no small contribution to the depth of today’s mess. Power and patronage go hand in hand, and with so many new dependents — some likely to be less temporary than others — the role of the state in everyday life is going to be significantly enhanced. Repealing a few regulations that hampered, say, testing for the virus, or the manufacture of masks won’t make up for that.

Both individuals and private businesses have been given a dramatic demonstration of the ability of the state to, in the case of the former, upend their lives, and, in the case of the latter, destroy a life’s work. It’s perfectly reasonable for someone to decide that government is acting benignly or taking the right hard choice in the current situation, while understanding that this may not always be the case and adjusting his or her behavior accordingly. So far as firing up those “animal spirits” that Keynes correctly saw were so important in helping a free market along, this is not the approach to take.

And there should be no illusions that some default instinct towards freedom will stop Americans from succumbing to the intellectual temptations that the response to COVID-19 may send their way. Turning to Uncle Sam in times of insecurity, especially in a country where hard times can be much harder than many places elsewhere in the West is understandable enough. There’s also an unsettling aspect of human nature to consider. It may seem odd to describe a society as mobilized — when so many and so much have been immobilized — but that’s what America now is, thus the frequent wartime comparisons. Despite chafing against some of the restrictions that typically come with it, there are plenty of people who rather like being mobilized. That’s just another reason why countries that have been mobilized tend to stay so for far longer than an emergency might call for, and why the state almost never retreats the whole way back to where it was before that emergency begun.

There’s not much reason to think that things will be very different now.