America is not in great shape

Citizens may think that America should focus on surviving the covid-19 pandemic and should accept any government actions that help, or seem to. That may be.

But The Congenial Iconoclast is here to point out that civics don’t stop mattering in a crisis. The choices we make during the crisis are more difficult, and the actions we take are less effective, because of our civic defects. In the short term, we can’t come together and cooperate as we should. In the long run, the civic problems that hinder us during the crisis are going to remain with us after the pandemic goes away. It’s not just me saying this. George Packer, writing in The Atlantic, agrees that coronavirus is a litmus test for the nation’s faults.

When the virus came here, it found a country with serious underlying conditions, and it exploited them ruthlessly. Chronic ills—a corrupt political class, a sclerotic bureaucracy, a heartless economy, a divided and distracted public—had gone untreated for years. We had learned to live, uncomfortably, with the symptoms.

Focus on one item from Packer’s litany of distress: a divided and distracted public. One great problem that hampers our response to the coronavirus, and that will outlast it, it the bitter, contentious political and social climate.

Politicians regularly accuse rivals of deliberately trying to harm their own country. People speak with incredible contempt about – depending on their views – the rich, the poor, the educated, the foreign-born, the president or the entire US government. It’s a level of contempt that is usually reserved for enemies in wartime, except that now its applied to our fellow citizens. It’s complete madness. We live in a society that basically is at war with itself.

That’s war correspondent and author Sebastian Junger, in a snip from his 2016 book, Tribe. Junger contends in the book that America’s lack of social cohesion and patriotic amity has come to a point of crisis. Combat soldiers’ PTSD gets worse, he writes, when they return home. In war, they experienced danger and deprivation, but there was also an all-in-this-together spirit that unified everyone. By comparison, the acrimony of American society feels toxic.

The main fault line relating to coronavirus (in late April 2020) seems to be the desire of many Americans to work their jobs and live their lives versus the imperative to contain the spread of the virus. Quite a bit of disgrace attaches to the first group. When the president or state governors declare that gun stores, shooting ranges, tattoo parlors, nail salons, and bowling alleys are essential businesses and open those sooner than dentists’ offices, it is hard to believe in their good will and wisdom. {Full disclosure: I lost a crown on one of my molars three days into the shutdown. So far it’s not too painful, but I’d sure like to see a dentist!}

But the stay-at-home side is behaving pretty horribly, too. The following video from progressive podcaster David Pakman suggests that a share of Americans want to re-open the economy “prematurely” and that some people support “being too quick to reopen.”

Pakman would be more honest saying that some people think re-opening at least parts of the economy soon would bring more economic and social benefit than medical harm. They may be right or they may be wrong, but even if wrong their view is not as perverse as Pakman implies. The people who hold those views are not bad people because they want to get back to their jobs. Similar hard takes and harsh characterizations have appeared in The Washington Post and elsewhere. It’s ugly.

Various states and nations are coping with coronavirus differently, and several other countries (New Zealand, Denmark, Sweden, South Korea) are doing more to turn the necessary sacrifices into a unifying national effort. Denmark, for instance, has begun broadcasting a program of hymns by Danish composers every morning. New Zealand’s prime minister broadcast a special programs explaining coronavirus to that nation’s children. In the US, it’s been: Stay Home!” I’m not suggesting the US do the things the other nations have done. I’m saying we are too far gone for that. Those soothing actions wouldn’t work if tried in America, because there aren’t enough shared national values to rally around.

The second problem that coronavirus aggravates is our failure to act as a constitutional republic, granting specific enumerated powers to government. Citizens might suppose that with 230 years of practice under the Constitution of 1787, America does that automatically. But it isn’t true.

Quite a large part of America’s population wants a response to the crisis, and asks no question about whether or not government has (or should have) the necessary authority to do what it is doing. Another portion of the population opposes government at every point (or every point except the 2nd Amendment) and presumes government can‘t do what it is doing now, either. The Congenial Iconoclast accepts neither of those stances, but asks whether and whither government has such powers.

In my home state of Indiana, the law (Indiana Code 10-14-3-11 (concerning the duties of the governor) says:

In the event of disaster or emergency beyond local control, the governor may assume direct operational control over all or any part of the emergency management functions within Indiana.

Does that mean he can shut down the economy and force innocent (and healthy!) citizens to stay in their homes? No it doesn’t. The law gives the governor authority over the state’s emergency management programs and resources. It doesn’t say the governor can infringe the rights of citizens.

An article from the website of WBOI, a public radio station in Ft. Wayne, insists the governor can “employ any measure” during a crisis. The article links to the same section of state code as I linked above. But if you read the thing, you see it says the governor can:

(3) Take any action and give any direction to state and local law enforcement officers and agencies as may be reasonable and necessary for securing compliance with this chapter and with any orders, rules, and regulations made under this chapter.

(4) Employ any measure and give any direction to the state department of health or local boards of health as is reasonably necessary for securing compliance with this chapter or with the findings or recommendations of the state department of health or local boards of health because of conditions arising from actual or threatened:

(A) national security emergencies; or

(B) manmade or natural disasters or emergencies.

(5) Use the services and facilities of existing officers, agencies of the state, and of political subdivisions. All officers and agencies of the state and of political subdivisions shall cooperate with and extend services and facilities to the governor as the governor may request.

(6) Establish agencies and offices and appoint executive, technical, clerical, and other personnel necessary to carry out this chapter, including the appointment of full-time state and area directors.

The whole section pertains to how the governor may direct state resources. The words “Employ any action” appear in clause (4) in a sentence that clearly relates to the state board of health. The words “Take any action” appear in clause (3) in a sentence that clearly relates to law enforcement. The section does not say the governor can shut down private businesses or impose a statewide economic shutdown.

And yet, Indiana Governor Eric Holcomb has done that. He claims he has the authority, and apparently he does. But he doesn’t get it from the law.

Holcomb’s action may be pragmatic. It may be justified by circumstances. It may produce a utilitarian social benefit, though not a Pareto Optimal one. But it isn’t an enumerated power granted by an informed citizenry in a constitutional republic.

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I base this on the sensibilities of the founders — especially James Madison. America is either a constitutional republic governed by laws or it is an oligarchy governed by a few powerful politicians. And the only way a constitutional republic can work is through specific and limited, enumerated powers.

In 1817, President Madison refused to sign legislation supporting what was then called “internal improvements” but which we today call infrastructure.

“The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers….”

This was not a case of Madison not wanting to do something, and hiding behind a strict reading of the Constitution to give himself an excuse not to do it. In a lengthy statement, Madison combs the Constitution from end to end, trying to find language that would allow the infrastructure bill to go through. He considers and discards “the power to regulate commerce among the several states” and “to provide for the common defense and the general welfare” and concludes that Congressional power to build roads and canals just doesn’t exist.

What if the states votes to allow Congress to build roads and canals? Nuh-uh, says Madison.

The only cases in which the consent and cession of particular states can extend the power of Congress are those specified and provided for in the Constitution.

He goes on:

I am not unaware of the great importance of roads and canals and the improved navigation of watercourses, and that a power in the national legislature to provide for them might be exercised with the signal advantage to the general prosperity.
But seeing that such a power is not expressly given by the Constitution . . . I have no option but to withhold my signature from it.

Here’s Madison saying it doesn’t matter if the thing is a good idea. It doesn’t matter if I myself support the idea. The future of America as a constitutional republic depends on government never doing more than the law explicitly allows.

That’s not America in 2020. The coronavirus crisis demanded a strong national response. What we got was certainly a strong response. But do you think the shutdown has manifested America at its best? Do you feel, at this moment, like you live in “The land of the free, and the home of the brave?”

(Madison quotes from Padover, pp. 197-198)