Something occured to me today thinking about all this that I think worthwhile to share. I agree in principle that the civil magistrate may take extraordinary measures to protect public health in an emergency, including the temporary suspension of constitutional rights. Even so, when we get into the specifics of what is going on right now, there’s a lot that is unclear and foggy.
The government deserves our allegiance and obedience by virtue of its existence over us. But governments can undermine their own credibility by acting in absurd ways, passing laws impossible to enforce, or even refusing to enforce certain laws, thereby sending the signal that you can break the law and get away with it. Governments can begin to lose the confidence and trust of the people. In order to govern effectively, rulers must have the trust of the people, “soft capital” if you like. This has been true at all times and places, even under kings and oligarchs of the past. Every government is democratic at least in some small sense.
Somewhat early in the crisis, I read one of the executive orders of Andy Beshear, the governor of Kentucky. His order was an extensive ban on public gatherings above a set number of persons. At the end of his order, the governor said that his order would not be enforced. Though it was an order, and had the force of law, the governor assured the citizens that rumors of martial law were unfounded, and to prove it he would not be enforcing his decrees.
Think about that.
There are two ways a citizen can react to an order like this. A citizen with a more tender conscience may strive to obey the order to the letter, although he gains little by doing so since other citizens with fewer scruples will carry on with life with as little inconvenience as possible. Those other people will seek to find loopholes. When they self-enforce, they will be sparing and allow many exceptions. They will take “essential” trips to buy flowers and mulch at Home Depot and play golf.
Since these orders are frequently written in a hurry, they contain lots of ambiguous language that is open to interpretation. “Essential,” “non-essential,” “social distancing,” and the like. Then you have the exceptions and exemptions, which are also open to interpretation. You can see the folly of trying to centrally plan a whole complex society on the fly.
Is it obvious what a Christian should do in this situation? As a practical matter, the United States is a huge country spanning a continent. Enforcing a sweeping lockdown is very difficult. Necessarily, individual citizens must add their own interpretations to these orders. Some will interpret loosely and others strictly. Who’s right?
This whole problem is caused by civil magistrates being ambiguous and giving orders they know they can’t enforce properly. The ambiguity could be solved by giving more specific orders, such as quarantining specific groups of people who are at risk. That would be practical, but that isn’t what is being done. Although civil magistrates wield the sword, in most cases they are being very sparing in how they use it or not using it at all, which undermines their own credibility. The power of the “civil use” of the law rests on the magistrate’s ability to credibly act to crack down on evil doers. When the state for whatever reason chooses to undermine its own credibility so that evildoers no longer fear its decrees, the civil magistrate is at fault. Civil order or disorder is their exclusive responsibility.
Of course the next thing that must be mentioned is that, while giving the initial impression that enforcement of these orders would be light and that one could treat them as more like suggestions or guidelines, as time as gone on more enforcement has been taking place. A small black church of about 15 or 20 people is planning on holding Easter services in Louisville, and Gov. Beshear has specifically threatened that he will take action. Turns out he will be enforcing his decrees after all.
While Gov. Beshear ponders whether to commit political suicide or not, what do you do if you are the black pastor? The implicit social contract between you and Gov. Beshear is that he has given a decree with certain statements, you have interpreted those statements, and Gov. Beshear has promised he won’t act to force you to interpret his statement one way or other. But now Beshear is breaking his end of the bargain. Do you yield to him in this game of chicken or do you hold your ground? Are you a rebel if you don’t? It is far from obvious what the right answer is.
The rules being laid down are arbitrary. Because legislatures contain more than 10 people, many state legislatures are shut down. Law is being made on the fly by governors and their staffs acting alone. The enforcement of these arbitrary rules is inconsistent and capricious. Churches must be closed, but the crowded New York City subway is still open. My town has closed all playgrounds for children, but the abortion clinic in Louisville is still open. Abortion is an “essential” service; child’s play is not. Tough luck.
Why are the laws here so open to interpretation? Why is the enforcement so capricious? I believe it is on purpose. The ambiguity is intentional. If you’re not sure where the line is, it is much easier to to declare you guilty if the state needs you to be guilty. It’s Pharisaism on steroids. But even the Pharisees would be scandalized by the vast powers modern governments possess.
The relationship between citizen and government is complex. It is mediated by cultural norms. In many nations around the world, bribery is the way government business is done. The rule of law comes at a price. Here in the U.S. we’ve been blessed with a more consistent system. Respect here for the rule of law is higher. But what holds it all together? Part of it is our people. We have a tradition of rough-and-tumble Scots Irish and Anglo Saxon Presbyterians who did not care to be governed by the whims of a distant King and Parliament. Part of what made our system work the way it did was that the governing authorities knew that if they tried any funny business, the rascally Presbyterian citizens wouldn’t have it. They would resist. There was an implicit fear of the people that kept things in check.
Now Pastor Bayly has written about this subject on the blog. For him, the independent spirit of the frontier is the problem right now. We need to straighten up and fly right. But once you take that frontier spirit away, you lose something of the essence of what America is about. American individualism has its problems, but getting rid of it is as foolish as taking down Chesterton’s fence. Once you take it down, you will discover why it was there, and you will miss it.
The relationship of government and citizen is command and obey to some extent, but it also involves some push and pull, like any other hierarchical relationship. Especially in our system, for the citizen to automatically yield to arbitrary and capricious decrees from his governor or mayor or sheriff encourages bad behavior in the magistrates. It’s a signal of weakness; a signal to keep expanding power. In order for our system to still work like it is supposed to, there does need to be some implicit fear of the people by the magistrate, that there are real limits to what the magistrate can get away with. This is part of how you preserve a constitutional republic.
This has been very lengthy. But what is the point? Point is there aren’t easy answers here. This really is a case where that weasel word, “nuance,” is called for, along with another weasel word, “charity.”