In response to ‘You Forced Me to Do It’ Is an Argument Against the Law
First, let me say: It’s nice to be back here, if only for a visit. Also, thanks to the gang for letting me respond to Charlie’s post here.
And just to set the stage: I think Biden’s mandate on private businesses is a bad idea as a prudential matter, for many of the reasons Phil Klein lays out. I also think it is probably unlawful and/or unconstitutional, but I’m not yet convinced the courts will affirm that. I certainly believe that giving OSHA these monarchical powers is batty. It should also be noted that a lot of the tyranny talk (though not by Charlie) elides the fact that the Biden team thinks what they are doing is at least colorable by law. If Biden were trying to be a tyrant, he would not have bothered to craft this Rube Goldberg (no relation) legal rationale in the first place. Of course, if the courts nullify his scheme and he defies their verdict, that would be tyrannical. But that’s not likely and not happening now.
Still, let’s concede for the purposes of this disagreement that Charlie is entirely correct: It is illegal and unconstitutional.
With that out of the way, I think Charlie makes a couple errors.
First, and probably most important, I did not use the word “forced.” I did not argue, and do not believe, that Biden had no choice but to do this. This alone, I think, guts the bulk of Charlie’s critique.
But let’s take it further. Charlie writes:
I suspect that this would be more obvious if we shifted the context. It is true, for example, that cops wouldn’t “need” to break into private homes without warrants if there weren’t so many criminals. But it’s also irrelevant. The law is the law, irrespective of the pressures that are put on it. There is almost always a plausible reason for the government to act, which is why we write down the rules and then demand that it stick to them.
I agree with this entirely. But I think it buttresses my point. Charlie, ever the conscientious civil libertarian, wants to focus — rightly! — on the limits of government. My point was about the criminals in this analogy. Let’s say there’s a massive crime wave, spurred in large part by various irresponsible talking heads and politicians who, Bane-like, tell the Have-Nots they have every right to appropriate the property of the Haves. In response, the government starts taking draconian measures that eventually cross the line into state-sanctioned lawlessness. I would join Charlie in condemning the government. But I would also condemn the criminals — and the demagogues who foreseeably incited such lawlessness amongst the citizenry.
Abraham Lincoln, I should note, did many unconstitutional things — suspending habeas corpus, shutting down newspapers — to prosecute the Civil War. We can lament these necessary evils while still assigning blame in such a way that Lincoln’s portion is minor in the account.
Now, the unvaccinated are not criminals nor secessionists, and neither are anti-vaxxers demagogues (save a few poltroons on the fringe). But the point remains. If you behave irresponsibly, the odds of an irresponsible reaction are increased. A similar argument has been made by the editors of National Review for decades when it comes to immigration. By tolerating an irresponsible and even lawless immigration policy for decades, political elites risked inviting a demagogic and irresponsible reaction (whether the editors were proven right in 2016 is a debate for another time).
My point was not about the law, but about politics and, to use the language of the Founders, virtue. We all know that the founders — or at least many of them — believed that freedom depends in large measure on a virtuous people. As John Adams famously put it:
Public Virtue cannot exist in a Nation without private, and public Virtue is the only Foundation of Republics. There must be a possitive Passion for the public good, the public Interest, Honour, Power, and Glory, established in the Minds of the People, or there can be no Republican Government, nor any real Liberty.
Or as George Washington said, “of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.”
Far more Americans have died from COVID than died fighting in World War II. The economy may be stalling. The psychological, political, and social costs of this pandemic — which is still not over — have been incalculable. And all that would be necessary to thwart this gloomy tide is for Americans to get vaccinated. Getting vaccinated is not only in the narrow self-interest of individual people. It is also in the interest of their families, communities, and their country. It seems both a paltry and trivial sacrifice to get vaccinated and to encourage others to do so, and a virtuous and patriotic thing to do as well. Instead, irresponsible actors are telling people the very opposite of that — that it is cowardly and unpatriotic to endure this potentially life-saving minor inconvenience. People are wearing their personal irresponsibility like a badge of honor.
This project is unwise, immoral, unpatriotic, and unvirtuous. It has also led to a political climate in which a fairly unprincipled politician — not a tyrant, but a mere politician — has the political incentive to behave lawlessly both on the vaccine mandate and on the eviction ban. Two wrongs don’t make a right, but neither does Biden’s wrong erase the wrongs that have made his actions politically attractive to him. That is my point: If people did the right thing, it would not grease the skids to more wrong things.