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December 9, 2020 Reading Time: 6 minutes

Supreme Court Justice Neil Gorsuch wrote in his latest book that 

“Madison warned that what we call “the rule of law” depends on the existence of laws that are reasonably clear, finite, and stable. Only then can people plan their lives and order their affairs. The rule of law comes under threat, he warned, when the laws become “so voluminous, or so incoherent that they cannot be understood.”

Gorsuch published his book in 2019 and James Madison spoke those words over 200 years ago. Like most of the wisdom espoused by our Founding Fathers, such words were not just meant for the moment; they were meant for posterity. They knew that if this country was to last through the ages and not just one generation, eternal lessons regarding good government must be upheld. 

The rule of law is an essential idea that forms the foundation of a free and prosperous society. Without it, the arbitrary hand of tyranny and incompetence is free to wreck the lives of everyday citizens. The United States Courts state that the

Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:

  • Publicly promulgated
  • Equally enforced
  • Independently adjudicated
  • And consistent with international human rights principles.

Essentially the rule of law dictates that nobody, not even our leaders, are above the law. That the Constitution, not the tyranny of the majority or the minority, reigns supreme. The rule of law allows a society to trust in its governing system, plan their lives without fear of arbitrary restrictions, and have confidence that contracts will be enforced. Such guarantees are responsible for modern prosperity. Economists such as Deirdre McCloskey cite the freedoms and security provided by ideas such as the rule of law as one of the primary reasons for the widespread prosperity we have today. Human history has been characterized by thousands of years of stagnation and suffering but within the past 200 years that changed for the better because of ideas such as the rule of law. 

Why This Is Relevant Today

The rule of law is clearly the foundation of our republic; without it, modern society would cease to exist in short order. In the age of Covid-19 and lockdowns politicians have either attempted or have blatantly flouted the rule of law. They have acted as tyrants and not public servants by violating state constitutions as well as the federal constitution. They have exercised hypocrisy by flagrantly violating the laws and suggestions they write. Finally they have undermined the stability of our institutions by frantically and arbitrarily issuing new laws, causing mass confusion as well as hardship. Although it is important to respond to public health concerns such as Covid-19, it is important that our leaders do so in a way that is prudent and most importantly, legal. 

Violations of Constitutional Limits

Constitutions serve as the laws that the government must abide by, for we are a nation of laws and not a nation of tyrants. The consent of the governed is made on the condition that those who exercise power over our lives do so within the boundaries set by a constitution which protects among other things, inalienable rights. Not only is there a direct correlation between prosperous societies and limited government, few people would consent to being governed by a dictator. 

That is why it is so concerning that politicians across the country from governors to mayors have enacted policies that either violate protected rights or erode the constitutional protections that do so. Recently in Roman Catholic Diocese Of Brooklyn, New York v. Andrew M. Cuomo, Governor Of New York, the Supreme Court struck down a policy placing restrictions on houses of worship while neglecting to apply such restrictions to other establishments. Justice Gorsuch wrote a concurring opinion that begins 

“Government is not free to disregard the First Amendment in times of crisis. At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993). Yet recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles.”

There is no pandemic clause in the Constitution that allows governors to disregard rights explicitly outlined in the Bill of Rights in favor of arbitrary preferences on essential and nonessential businesses. There are certainly doctrines that give government the power to curtail rights such as the police power and precedent set by Jacobson v. Massachusetts but such policies must be narrowly tailored. Arbitrary restrictions such as those set by the Cuomo administration and governors across the country are unconstitutional and cannot be seen as “narrowly tailored.” 

Justice Gorsuch elaborates on this when he writes in his concurring opinion,

“At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?” 

Other examples of our leaders flouting the constitutional limits include the governor of Michigan attempting to unilaterally extend her emergency powers to continue her state’s lockdown against the wishes of the legislature. In Wisconsin, the governor and his unelected health department attempted to enact lockdown policies without any authority granted by the state legislature. Fortunately both governors were stopped by their state supreme courts but the list of those who have yet to be confronted is far too long. 

Blatant Hypocrisy 

Back in September I wrote an article covering a scandal where House Speaker Nancy Pelosi violated San Francisco restrictions on indoor hair salon services. Since then, such acts of hypocrisy and blatant violations of the law have increased in frequency. 

As Governor Gavin Newsom placed California residents on lockdown, he attended a dinner at the Michelin-starred restaurant French Laundry, flouting many of his own policies. While the average American cannot make travel plans beyond a trip to the grocery store, a bipartisan and diverse group of legislators took a trip to Hawaii. While his residents were encouraged to stay home, the mayor of Austin, Texas took a trip to his daughter’s wedding in Cabo, Mexico. The mayor of Denver, Colorado flew to see family in Mississippi for Thanksgiving while urging residents to stay home. A little bit over a week ago, Los Angeles County closed outdoor dining but a member of the Board of Supervisors was spotted at a restaurant just hours after voting in favor of the dining ban.

Some of this is hypocrisy and some of it is blatantly against the very laws these politicians advocate for. Not only does this reduce long-term trust in the rule of law, but it also undermines the science they claim to support. 

Confusing and Arbitrary Laws 

Having coherent, reasonable, and consistent laws allows society to function with efficiency and clarity. The government flicking the light switch of normal life on and off whenever it feels like it is a quick way to undermine its legitimacy. The rule of law is undermined when the rules that govern society change frequently and arbitrarily because not only does it make laws hard to follow, it makes it seem like a big joke. 

Los Angeles County’s recent dining ban and California’s 10PM-5AM curfew are but two of countless examples. Such rules only impose even more hardship on businesses large and small as well as all social functions. Businesses in LA county are subject to ever changing restrictions with the latest being a total ban on indoor and outdoor dining. First outdoor dining was permitted, then there was limited capacity, then a total ban. Such policies caught many restaurant owners by surprise as investments were made for continued outdoor dining only to be crushed shortly after. Meanwhile, some businesses like the film industry were deemed essential and allowed to not only stay open but set up outdoor dining venues for their employees.

The New York Times writes about about the highly confusing and arbitrary policies when they quote the California Restaurant Association stating

“As we’ve repeatedly said, their order was arbitrary and targeted restaurants unfairly, without supporting evidence,” Jot Condie, the president, said in a statement.

The controversial 3-2 vote to abruptly close outdoor dining was rightly met with intense criticism. It makes little sense given the scientific evidence as well as the economic considerations at play. It also adds to the growing frustration that Califorinians as well as citizens across the country are feeling when it comes to arbitrary and poorly justified restrictions.

Key Takeaways 

This article is only the tip of the iceberg when it comes to actions that not only fail to support public health but also undermine the rule of law. From a practical perspective, adhering to the rule of law is important because it is entirely possible and certainly preferable to uphold public health without undermining public trust in our institutions. Philosophically, the rule of law is important because governments that undermine or violate this principle will not exist for long. 

Politicians across the country are slowly, in some cases aggressively, unraveling the rule of law through unwarranted exercise of power and poorly justified actions. From the exercise of power prohibited by state and federal constitutions, to blatant hypocrisy, to confusing and arbitrary laws, our system of good government is ailing. Lockdowns are the disease. 

The solution is quite simple; end the lockdowns and adopt a strategy that does not encourage tyranny. If that’s too much, then at the very least follow the law and be consistent, especially if you were the one who advocated for it.

Ethan Yang

Ethan Yang

Ethan Yang is an Adjunct Research Fellow at AIER as well as the host of the AIER Authors Corner Podcast.

He holds a BA in Political Science with a concentration in International Relations with minors in legal studies and formal organizations from Trinity College in Hartford Connecticut. He is currently pursuing a JD from the Antonin Scalia Law School at George Mason University.

Ethan also serves as the director of the Mark Twain Center for the Study of Human Freedom at Trinity College and is also involved with Students for Liberty. He has also held research positions at the Cato Institute, the Connecticut State Senate, Cause of Action Institute and other organizations.

Ethan is currently based in Washington D.C and is a recipient of the 13th Annual International Vernon Smith Prize from the European Center of Austrian Economics Foundation. His work has been featured and cited in a variety of outlets from online media to radio broadcast.

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