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Reading op-eds these days about the grim progress of COVID-19 through the United States, I sometimes have the eerie feeling that I’ve traveled backward in time and landed in some sort of Cold War-like, hyper-conformist dystopia — but with one disquieting difference.
As in those dark days, we’re bombarded with warnings of a ruthless, insidious enemy that will destroy us if unchecked. As in those days, we are assured that the battle to suppress this mortal enemy requires unquestioning faith in government authorities and the suspension of ordinary liberties. As in those days, dissenters are vilified; people who challenge the suppression of civil rights are mocked as dupes, fellow travelers or outright accomplices of the Evil One.
Only this time, the roles are strangely reversed. Instead of red-baiting conservatives, it’s so-called liberals who are wearing the executioner’s hood and carrying a shredder for the Bill of Rights. Instead of jingoists shouting down dissenters, we’ve got erstwhile defenders of free speech telling political critics they ought to either shut up or drop dead. And in the present-day dystopia, the enemies of society are not just people with the wrong ideas, as they were in the old days; even taking a walk in the park can prompt well-meaning liberals to denounce you to the authorities as a public menace.
That is today’s political reality in a nutshell — and I’m afraid the situation is much worse than merely ironic. I think it represents a colossal error by which civil libertarians and their normal political allies are abandoning their most valued principles at precisely the moment they’re most urgently needed. Just as state repression of working people offers us the chance to unify much of the political spectrum around liberal ideals, left-of-center pundits are simultaneously turning their backs on struggling workers and on civil rights.
Am I exaggerating? I would like to think so, but I’m not optimistic. Even People Magazine got into the act recently, quoting a “software writer” who is “urging Facebook to crack down” on people who want to organize opposition to stay-at-home orders. The article’s author notes the warning of Michigan’s governor, Gretchen Whitmer, that if anyone protests her lockdown commands she will simply extend them. Such comments in a gossip journal are probably meaningless in themselves — but where is the principled reaction of liberal pundits to public threats of censorship and political retaliation? It’s exactly that kind of silence — from a whole range of liberals and progressives — that makes me worry that the COVID-19 epidemic could end up as a graveyard for the American left, an awful tale of a misread civil rights crisis and a tragically lost political opportunity.
Now, before I offer my bill of indictment, it’s only fair to acknowledge that liberal-to-left commentators are caught in an exceptionally embattled moment. A pathological narcissist inhabits the White House, subordinating national policy to his self-serving whims. Wall Street, flush with a new handout so big that author and economic analyst Matt Stoller has called it a “coup,” is preparing to pounce on what is left of the U.S. economy. Corporate behemoths revel in the agony of small businesses that will be ripe for devouring after months of lost revenues. The grinning gangsters who run the Republican Party (the real one, not the Trump sideshow) are doing their best to starve the states hardest hit by the epidemic. Abroad, State Department warlords are sadistically ramping up the torture of Iran and occupied Palestine while defunding the World Health Organization — just when internationally-coordinated disease response is more vital than ever.
And all the while, a national health care infrastructure that has been systematically looted for decades is reeling under the impact of a disease whose effects threaten to outstrip its all too limited resources. At times like these, it’s easy to understand why no one to the left of Jair Bolsonaro wants to say anything that might be construed as support, however indirect, for Donald Trump and his White House yes-men.
But it seems to me that this posture badly misreads the nature of the crisis we’re in. The genuine medical concerns raised by the coronavirus outbreak do not obviate basic issues of civil rights and the limits of government authority — and those are questions all of us, especially on the left, ignore at our peril. Yes, we have to contain the spread of the virus in a way that doesn’t overwhelm our hospitals (though it might have made more sense to put up temporary health care facilities, as other countries have done, instead of making it solely the public’s responsibility not to get sick so fast). Yes, we should plan a more rational health care system for the future, one freed from the tyranny of the current for-profit model.
But we also have to stand up for the needs of millions of devastated working people — who are, after all, at the heart of the constituency the left likes to claim for itself — and for principles of personal freedom that are now under the most powerful domestic assault I have witnessed in my lifetime. If we don’t wake up soon, I’m afraid we may find that we have abandoned a vital field of action (one that should have been our natural environment) to the demagogues and right-wing extremists who are certain to rush into the vacuum we leave behind. Do we really want to let that happen?
Let’s rehearse some basic principles of constitutional democracy. Whenever a government official claims some sort of power over others — and even more so when he or she claims extraordinary powers — three questions are automatically present. First, does the official actually possess such authority, and if so, how? Second, assuming the authority to be legitimate, are the methods being used consistent with the law (including, in this country, the restrictions of the Bill of Rights and the Fourteenth Amendment)? Third, is the authority being used for a legitimate purpose?
Nearly all of the discussion I have read over the last two months involves the third of these questions; to my amazement, even people traditionally committed to civil rights issues have all but ignored the first two. That’s a serious error: the purest of intentions cannot atone for illegal government acts — and an act is just as illegal whether it concerns a blatant absence of authority or an unconstitutional abuse of power. We can accept, for instance, that our police forces are vested with extraordinary powers to deprive people of liberty — but for that very reason we do not (and should not) allow them to wield those powers arbitrarily. I hope I don’t need to emphasize that these limits are not mere technicalities. They represent a crucial safeguard against tyranny. Kick away the legal restraints on official power, and we’ve deposited ourselves on a slippery slope that leads, ultimately, to a police state. I’m not claiming that today’s state governors intend to take us there. But we would be naive indeed to trust powerful officials to care more about our rights than we do.
So I’m frankly amazed at the virtual silence — not just from mainstream “liberal” media but even from the progressive left — about the sweeping powers that have been seized by more than 40 U.S. state and territorial governors in the last two months, and the staggering effects to which these powers have already been put, with nothing but a governor’s signature on a piece of paper to legalize each of them. Businesses have been closed all across the country; millions of people have lost their jobs and are filing for unemployment benefits (benefits that may prove only notionally available, at least at present); at least tens of millions of citizens are in circumstances approaching house arrest. And all this has been achieved without a single act of an elected legislature, without a single court order, and with scarcely any public debate. A society that prides itself on its respect for individual liberties is watching the Bill of Rights go up in smoke. And, if press accounts are any guide, the only people who seem to be speaking up about it are mobs of half-baked, gun-toting Trump lovers.
The silence on the left is all the more astonishing when one considers the history of the statutes now being invoked — generally for the first time — to confer such sweeping powers on a handful of state executives. When the original version of these laws was unveiled at the end of 2001, it drew sharp criticism from the American Civil Liberties Union, as well as from conservative groups. (The ACLU specifically mentioned the opposition of the Free Congress Foundation and the American Legislative Exchange Council in its own written statement condemning the bill as “replete with civil liberties problems” and “a throwback to a time before the legal system recognized basic protections for fairness.”)
The objections to the proposed law were remarkably consistent, regardless of political vantage point. The bill — called the Model State Emergency Health Powers Act (MSEHPA) — was ostensibly designed to respond to a catastrophic bioterrorism attack in which tens of millions of lives would be in direct jeopardy; but it was worded much too broadly for that specific purpose. It allowed governors to seize virtually dictatorial powers without any of the political checks and balances normally used to discourage abuse. Finally, the bill paid scant attention to the Fourteenth Amendment’s “due process” restraints upon state action that deprives an individual of liberty or property.
These concerns were not just theoretical. They were serious enough to persuade the legislature of one state — Maryland — to add at least some civil rights protections into its version of the MSEHPA. And by now it should be painfully clear to everyone that the critics were, if anything, too complacent.
All 50 states now have some form of the MSEHPA on the books, but for simplicity’s sake I will focus on my own state of New Jersey, which adopted its version in 2005. On March 9 of this year, New Jersey’s governor unilaterally declared a public health emergency — which he unilaterally extended for another 30 days a month later — predicting (correctly) that New Jersey stood to suffer significant effects from the coronavirus pandemic. Significantly, though, he did not claim that the impact of the virus was similar to a terrorist attack; nor did he so much as nod to the state’s elected legislators. A series of unilateral “executive orders” followed in quick succession, closing all “nonessential” businesses, ordering all inhabitants of the state to “shelter in place” (a phrase I have been unable to find in any New Jersey statute, but which in practice means something approaching house arrest) and imposing a slew of restrictions ranging from dress (face masks are now mandatory in all public places) to the number of visitors allowed for apartment dwellers like myself (zero, for the last several weeks).
None of these “emergency” orders cited a specific section of the law that empowered the governor to take the actions he did, and that was likely deliberate; a good argument can be made that the unilateral mass quarantine of New Jersey’s citizens violates the EHPA itself, which requires a court order for each individual or group quarantine sought by the governor, as well as notice to everyone affected of his or her right to seek a later court order to obtain release. Since the governor has not sought any court orders and has not given the required notice to anyone confined by executive fiat, he may well be in violation of state law even in the exercise of emergency powers — to say nothing of the due process provisions of the Fourteenth Amendment, which Supreme Court Justice John Harlan (among others) famously celebrated as “bulwarks…against arbitrary legislation.”
Now, one might have thought such an unprecedented seizure of power (simultaneously replicated in more than 40 states) would be worth a bit of public debate. Yet mainstream media seem not even to have noticed one of the most momentous legal events of modern U.S. history. As for the traditional civil rights advocates (including the ACLU itself) — if they’ve had anything to say on the subject in the last two months, I haven’t heard about it. It’s as if the whole question of civil rights and limits on state power had somehow just evaporated like a puddle of rainwater, now that there’s a new respiratory virus on the block.
If that doesn’t startle you — as it startles me — try a simple thought experiment: imagine that, about six months ago, Venezuela’s President Maduro had unilaterally claimed the power to confine much of his country’s population and to close down most of its businesses — without a court order, in likely violation of Venezuela’s constitution, and without the sanction of the national legislature. Do you suppose the American press would have ignored that event? Would our pundits have given Maduro a pass for grabbing quasi-dictatorial power? Would cable news hosts have ridiculed Venezuelans who dared to defy his orders as mobs of knuckle-dragging weirdos possessed by a death wish?
Or try another sort of thought experiment: suppose that next fall, as flu season rolls around, the governors of New York, New Jersey, California and an assortment of other states all declare “health emergencies” and issue blanket prohibitions against political protest on the grounds that public gatherings might spread an infectious disease. Impossible? A few months ago, I would have thought so too. But something very similar is happening right now, and its unconditional endorsement by both major political parties and the liberal press makes it difficult to imagine how these institutions, or any related ones, could speak up in any credible fashion against even a power play as naked as that.
Circumstances in the U.S. are already ominous enough for my taste. But thanks to the broad reading state governors are giving their versions of the EHPA, things could easily get a lot worse. New Jersey’s statute allows the state’s health commissioner (who is an employee of the governor — so, effectively, the governor) to “take all reasonable and necessary measures to prevent the transmission of infectious disease or exposure to toxins or chemicals” for the duration of the “emergency” — a period which, as I’ve noted already, lasts as long as the governor wants it to. This section of the EHPA lacks any provision for the legislature to overrule the governor and does not indicate any mechanism to challenge his assessment of what is “reasonable and necessary.” Can the governor be taken to court by someone who suffers a loss under one of his unilateral orders? Maybe so, but does the court have the authority to second-guess the governor’s judgment? The law doesn’t say; for all anyone can tell, his discretion under the EHPA is absolute.
In a word, this untested statute — and remember, New Jersey’s version is not exceptional — is a wide-open door to some really sinister possibilities. Suppose the governor decides that criticism of his orders is interfering with efforts to stop the spread of the virus. He could then plausibly claim he has the right, as long as the “emergency” lasts, to criminalize any sort of comment (oral, written or electronic) that he thinks might undermine his medical policy. And why stop even there? Once he’s banning speech, the governor might as well claim the authority to eavesdrop on the conversations of anyone in the state he thinks might be saying something he’s forbidden. Or he might simplify his task still further by snooping on everybody whose communications come within reach of the police, and then arresting anyone he catches articulating thoughts he doesn’t like, tweaking the rules of prohibited speech as he goes along. (As a matter of fact, social media thought-policing of coronavirus-related comments has already begun; it’s not a huge step from that to state-by-state censorship of all such speech — allegedly in the “public interest,” of course.)
True, none of this has actually happened. But that should be cold comfort to anyone even glancingly familiar with the history of despotism. “I never knew it would come to that,” says the (fictitious) German jurist at the end of Stanley Kramer’s Judgment at Nuremberg. How many of us have wished we could have told his real-life counterparts — who closed their eyes while a few civil rights were sacrificed to the putative cause of German national welfare — that by the time they realized the danger they had unleashed, it would be too late to stop the juggernaut?
Maybe my experience in civil rights litigation has jaundiced my perspective. But it seems to me that the moment for giving such a warning to American officialdom has actually arrived, gift-wrapped, on our collective doorstep. And? Astonishingly, some of us seem to be too busy making fun of anti-lockdown protesters to recognize the legal crisis unfolding right under our noses. “I wasn’t thinking of the Bill of Rights when we did this,” New Jersey’s governor told Tucker Carlson, when pressed to explain the legal authority under which police arrested Orthodox Jewish worshipers who had allegedly broken his quarantine orders (orders that may well have violated the U.S. Constitution and his own state’s laws). “That’s above my pay grade, Tucker.” Here we have the governor of a populous state, most of whose citizens are already largely confined to their homes, airily claiming he’s not paid to “think about” the Bill of Rights while he’s having people locked up for praying. And the only voices raised in protest are coming from — Fox News? Really??
If there’s anything worse than the silence of the liberal class over the most massive threat to constitutional rights since the glory days of the Nixon administration, it’s the naked contempt of the liberal press for the handful of people who are stepping forward to protest. I refer to the rash of punditry to be found just about anywhere these days, savaging small groups of demonstrators as if they were refugees from a particularly bad Planet of the Apes sequel.
“My immediate feelings about what should happen to the right-wing anti-science protesters who paraded around cannot be put in writing,” wrote Bill Fletcher on ZNet, who went on to suggest, ominously, that people who dared to oppose Michigan’s harsh lockdown orders should “pay the dear and steep price for their prideful ignorance and complacency.” A column in the Washington Post mused that the demonstrators were obviously too twisted to give a damn about human life — while Governor Whitmer’s equally over-the-top insinuation that they sided with America’s enemies (Putin? ISIS?) has passed largely without comment. Progressive media have even compared the protesters to Nazis, on the weird logic that Trump has referred to them as “very good people” and once referred to some neo-Nazis in Charlottesville as “very fine people.” McCarthy himself might have been impressed.
Two aspects of all this smirking condescension seem to me particularly wrong-headed. First, none of it even attempts to consider whether the protesters may have genuine grievances. As I’ve been at pains to argue, their civil rights complaints are not trivial. And if they’ve lost jobs and health insurance as a result of orders issued by a governor’s executive fiat — orders that may be unconstitutional, to boot — it’s hard not to grant them at least a plausible basis for complaint. And let’s not forget that these protesters are merely the most visible of those affected — the extremists who are always the first to take to the streets. For each one of them, I suspect, there are thousands who are quietly nodding their heads and saying, “I know there’s a bug out there, but how the hell am I supposed to make ends meet if this goes on? At least those people are speaking up for folks like me.” The wonder is not that protests are occurring; the wonder is that more on the left aren’t making parallel political initiatives.
Second, I’m troubled by the constant refrain to the effect that the protesters are self-destructive — and, therefore, pathologically rather than politically motivated. The New Republic (typically) accuses the demonstrators of a “morbid ideology,” sneering that they are “willing to die in the defense of a less just world.” That line of argument reeks of bad faith: it willingly conflates suicidal fanaticism with a mere assumption of risk — real but relatively small — in the interest of a cause. In fact, such rhetorical tropes invite us to bracket lockdown opponents with the likes of the September 11 hijackers, ready to martyr themselves among the corpses of innocent victims.
That — to put it mildly — isn’t fair. It’s true that congregating for a demonstration during a viral outbreak exposes the participants to a somewhat elevated chance of infection, but given that the virus’ lethality is at most about 3% — and probably very much lower, especially in the protesters’ age bracket — that hardly amounts to deliberate suicide.
Nor is the assumption of risk it represents all that unprecedented. Before the famous 1963 March on Washington, the NAACP’s Roy Wilkins was asked point-blank on Meet the Press how he expected to “bring 100,000 militant Negroes into Washington without incidents and possibly rioting…[T]here are risks you are taking.” The question clearly implied that if any white people got hurt, those in charge of the demonstration would be at fault. Wilkins and the other organizers — including Martin Luther King — took that risk. And we don’t have to share these protesters’ belief in the value of their own cause to see that, from their point of view, they are making a similar assessment and reaching a similar conclusion that the possible benefits of the demonstration outweigh the rather remote dangers involved. Arguments designed to obscure that fact aim at making us refuse to take these people, or their problems, seriously — and that would be a huge political mistake. Debating them is one thing. Writing them off as lunatics is quite another.
While I’m on the subject, I can’t resist asking whether other people are as spooked as I am about the speed and casualness with which popular media have taken to barking at us in the accents of prison guards. Even their choice of language is shocking. It’s the vocabulary of police states: lockdown, closure, curfew, state of emergency, executive order. Like many others, I was repelled by the assault rifles in the hands of the right-wing Michigan protesters; for that matter, guns or no guns, those Calibans made a remarkably unattractive tableau as they swaggered and shouted and raised placards calling their governor a “bitch.” But to be honest, I don’t feel all that differently about the government they came to criticize, which also has nasty weapons at its disposal, which is using a lot more than unkind words to curb its citizens’ freedom, and which not only demonizes its opponents — much more effectively than the protesters do, because unlike them it has the mainstream media for an echo chamber — but claims the right to jail them into the bargain if they dare to step out of line.
Even if the right-wingers are politically clueless, why should progressives gloatingly advertise their superiority from the security of their living rooms? After all, whose fault is it that extremists are the only people raising public objections? We should know by now that when reasonable people don’t lead the way with principled resistance to state repression — facing extraordinary claims to power with the skepticism such claims always deserve — it’s inevitable that other, less reasonable people, are going to step forward to complain. Should we be proud of letting matters reach such a pass?
When all else fails, some of my left-leaning acquaintances argue that the shutdowns and confinements have a silver lining: they illustrate the depth of Trump’s malfeasance and thus ensure a Republican defeat this November. I confess to being skeptical about this. When the current madness lifts, and politically estranged voters realize just how much harm has been done to them (much of it, of course, by business elites and their cronies in the Republican Party, but mostly carried out under the stamp of bipartisan endorsement), I really don’t think the biggest thing on their minds will be Trump’s preening lies or contradictory claims. Trump has been telling whoppers for over four years, and they have never significantly altered his popularity.
I tend to think that increasingly desperate voters will remember, most of all, that Trump did talk at times about freedom and about preserving normality — while the people and institutions that are supposed to be the guardians of liberty and civil rights, and the friends of the working class, merrily embraced the language of police states. They will remember the respectable liberals who mocked them when they complained of losing their jobs and their personal freedoms, calling them stupid, backward, self-destructive and dangerous. And they will remember that on the rare occasions when questions surfaced about the right to public protest or the application of the Fourteenth Amendment, liberal leadership had only one message for them: shut up and listen to Big Brother.
I may be wrong, but I suspect that those on the left who think COVID-19 is going to popularize their positions among a large public without the investment of any effort on their part — and certainly without bothering to listen to what the protesters are trying to tell us — are not only wasting a crucial opportunity. They’re playing with political fire. And I am not optimistic about the likely outcome.
As I began to write this essay a few days ago, I was treated to a low-altitude flyover of a squadron of F-16s, supposedly an official “tribute” to health care workers in and around New York City. Even in the military-mad U.S.A., the idea of honoring doctors and nurses with warplanes — the same aircraft regularly used to pulverize civilians in Gaza — is so patently grotesque that I can’t help wondering if the display was intended (subliminally, perhaps) to send a more threatening message. Roaring over my head, along with thousands of my more or less captive neighbors, those F-16s reminded me that instilling terror is the oldest trick in the book of wannabe despots. Maybe the affinity of our public intellectuals with prison language is no accident, after all: we’ve been a society of mass incarceration for many years now; maybe it was only a matter of time before what’s done in our prisons to people of color, and to the poor, started to be exported to large populations in our cities and towns.
All I know is that those in power rely on our acquiescence, and the shortest path to such acquiescence is through fear. Whether it’s sending warplanes over our houses or ordering us to wear surgical masks everywhere we go — a visible message that solidarity kills, that every human being is a threat to every other — I can only say that U.S. officials seem to be going out of their way to scare us all to death. At such moments it’s more imperative than ever to remain skeptical, to ask the right questions of those who are slicing up the Bill of Rights with “emergency” measures that may (for all we know) be with us for years to come. Are the governors who rule us by fiat acting constitutionally? Are people and small businesses who suffer from these restrictive measures going to be compensated? What about people who are driven by drastically increased economic insecurity into depression or drug abuse? Who will provide health insurance to people who have suddenly lost their coverage with their jobs? For how many weeks or months does an “emergency” justify the shutdown of democracy?
If we can’t get satisfactory answers to these questions, we should be prepared to employ all the familiar means of civil disobedience, as well as turning vigorously to the courts and the state legislatures, where possible, for whatever relief we can obtain there. Such a multi-pronged campaign will require not only commitment but careful political judgment at each step, as we balance legitimate grievances with the risks posed by a still untamed disease. But it can be done — and in the current crisis it might yield important political gains.
The very last thing we should be doing is sitting back and watching while business elites manipulate working class protesters with appeals to their civil-rights concerns, steadily corralling all forms of pro-democracy resistance into the politics of the Republican right. I’m sure I don’t have to emphasize how disastrous such an alignment would be for all of us. But as long as we reflexively side with the lockdowns and ridicule their victims, we’re playing straight into our opponents’ hands. And if we don’t make the right move now — at a moment as critical as this one may prove to be — we may not get a second chance.