We live in dangerous times — and not just medically and economically. Government executives all over the world — with a few honorable exceptions — are exercising autocratic power, that is, power without legislative or constitutional authority, in the name of stopping the spread of the coronavirus. With respect to these orders, due process is absent. All around the U.S., governors and local authorities have decreed shutdowns of arbitrarily defined “non-essential” businesses and lock-downs. Curfews have been imposed.
The content of these orders may make sense, depending on the locale and scope, One size probably won’t fit all, but avoiding restaurants and staying at home surely make sense for many people. It’s the process — the exercise of autocratic power without due process — that should concern us. Liberty is not only being curtailed now; precedents are also being set. We could be visited by the ghost of pandemic past in the future.
Fortunately, we have seen some resistance to these orders and talk of legal challenges, but nothing widespread. I have not yet heard of any complaint reaching a judge. This is probably because people have their eyes are on the intent of the orders — containment of the virus — and not the process. The old saying “When you’re up to your eyeballs in alligators, it’s hard to remember you’re there to drain the swamp” seems pertinent, and I understand that. But liberty is too important to put on a shelf without even a squawk.
As the liberal order evolved over many centuries, it placed great weight on protection against arbitrary, autocratic rule over person and property: due process, speedy trial by jury, habeas corpus, and so on. These things aren’t much on most people’s mind these days. That may be understandable, but the rest of us need to keep squawking about them.
