Politics

Talking about Civil Liberties

~ John ~ 1 Comment

The stay-at-home protests in Michigan this week blew bugles all along our partisan trenchlines this week.  After the call-to-arms at the Lansing rally and its answering echo of presidential tweets, the weary platoons of Fox, CNN, and MSNBC dutifully rose to their webcam gunposts and blasted — mostly bloodlessly — away.  Sadly, the noise of the guns is drowning out an actual conversation we ought to be having: about how we can keep ourselves safe from this virus over the long term and still be free Americans within our tradition of civil rights and liberties.  It’s something that should concern us all.

Up to now, we’ve been in emergency mode, and the question has been largely moot.  Given the number of lives at stake and the imperative to save not only patients but the medical workers who treat them, governments at all levels have had to act fast.  The principal criticism has been the failure to act quickly, and decisively, enough.  In legal terms, our rights to free assembly and freedom of movement have been curtailed by the “clear and present danger” of the virus, requiring us to tolerate restrictions on our liberty we would consider intolerable — and unconstitutional — in normal life.

But how long does this persist, and what effect does it have on our liberties enshrined in the Bill of Rights the longer it goes on?  The Lansing protesters may have been asking that question too soon, and in the wrong way, and from the liberal perspective they were wearing the wrong clothes and using the wrong slogans when they asked it.  But it’s a valid – indeed vital — question, because the tools our Constitution offers us are basically at odds with the kind of legal analyses we’re going to have to undertake to keep ourselves both safe and free. 

Here’s what I mean.  The first amendment rights to free speech and free assembly, the fourth amendment right to freedom from search and seizure, and the judicially-crafted constitutional right to privacy are traditionally all framed from the standpoint of an individual’s right to operate in free, uncontaminated space.   The exercise of rights has always been deemed fundamentally healthy and good for that joint space.  Free speech, free assembly, and free worship are all traditionally considered good for democracy and for the health of society.  We want more of it, not less.  Free commerce is good for the economy.  Privacy is good for the nurturance of family life and individual growth.  All of these rights are good for us.

Not so in the COVID-19 world.  Gathering publicly right now is bad for you, and bad for everybody.   The public space is threatened by the free exercise of rights rather than improved by it.  Those who insist on the exercise of their rights are unfairly “free riding” on the sacrifices of others rather than benefitting the welfare of all.  Our paradigms of what constitutes the public interest are now turned upside down.

There have always been exceptions to the traditional rule, of course.  Speech that is so hateful or violent that it incites to imminent violence has traditionally been deemed outside the pale of beneficial public discourse.  On college campuses, workplaces, in the media, and in other public spaces, this exception to the rule has broadened of late to create a broader swath of speech considered publicly offensive.   There is a conservative/liberal divide about this, which is starting to prove an obstacle to a useful conversation about first amendment issues in the public health context. 

I think it’s particularly unhelpful to use the traditional rules governing free speech and assembly to think about public health issues surrounding the virus, because the former are fraught with moral and political value judgments associated with objectionable speech or subversive ideas, whereas the public health context ought to be free from such judgments and taints.  Viruses have no moral agency, and those infected are neither left or right.  We have to be extremely careful, if we are to preserve a system of rights and liberties, that we make any different treatment of those who test positive or are segregated not be punitive, stigmatizing, or devaluing.  This, in practice, will be an extremely tall order.  But it still has to be an essential goal.  

What we will need to accomplish it are two new, countervailing principles that do not currently exist in our jurisprudence today.  First, we need an integrated set of rights to freedom of privacy, assembly, expression, worship, and commerce that are balanced against the public interest in safety and health in an immuno-compromised world.  This will allow our courts to talk about individual rights and the free-rider problem without resorting to concepts soaked in outworn moral judgments and inappropriate blame.   Rights matter, and are good.  But safety matters too, and the intersection point between rights and safety is the fulcrum for government regulations based on preserving public space and minimizing free riders, informed by scientific knowledge and best practices in public safety.    

Second, we need to recognize that this new principle will inevitably result in some people being asked to forego freedoms and liberties solely for public health reasons, and for no fault of their own.  This runs deeply counter to the American idea that you cannot be deprived of liberty or property unless you have done something wrong, or without “just” compensation.  Under the new system, people may need to accept that they will be deprived of these things simply because they are sick, or because they may have transmissible illness even if they are not sick.  One can think of other scenarios whereby people are segregated and deprived of liberty because they are well.  Either way, segregating populations based on illness status  will require a strong system of protections to avoid discrimination, without which there will be a risk of abuse of population subgroups, tactics of surveillance that lead to arbitrary curtailment of liberty, and authoritarian abuse.  There may also need to be a compensation system to avoid some people bearing economic losses disproportionately.  But that is a debate we should have in the democratic space.

This is not a short-term project.  But the emerging science indicates that COVID-19 will not be a short-term problem.  Rather, we will be developing long-term strategies for regaining our footing as a society, as an economy, and as individuals.  How much freedom we will have in that new world will depend, in part, on how much we demand.

Oil Change in the Time of Coronavirus

~ John ~ 2 Comments

Across sudden fissures of social distance, how do we speak to each other?

Last weekend Beret mentioned that our old Highlander was within 500 miles of needing an oil change.  What with all the businesses shutting down for the duration, I decided to nip out to Grease Monkey, along with the other not-actually-panicking, not-quite-hoarding errands on my list.

I pulled up to the service bays and sat in the shade of a bright winter morning, watching the three guys work on two cars ahead of me.  Two were hooded and zipped against the chill, their hands in plastic gloves.  But one dude wore jeans, a cutoff-sleeve muscle shirt and bandana headband — a cross between Bruce Springsteen and Sly Stallone.  He perched on the running board of an F-250, leaning in to wipe the inside of its windshield with a rag extended from his bare fingers, one leg extending straight back, almost yoga-like, for balance.  His head craned back to inspect the upper corner, breath fogging the cold glass.  A weekend ago I’d have thought, “artful attention to detail.” This weekend I thought, “contagion.”

One of the other guys walked over.  “Oil change today?”

“Yeah.  But you can skip the interior cleaning.  Just the engine service is fine.”

He shrugged.  “OK.”

I got out of the car and went into the waiting room, using a paper towel I’d brought for the purpose to open the door.  Nobody was in there, so I found myself guiltily spying on Bruce through the countertop window, making sure he’d gotten the memo about no interior cleaning.

He came through the back door.  “They told me you don’t want any cleaning or vacuuming?” I nodded.  “Suit yourself.”  I could tell he was pissed.  I thought, he’s probably one of those folks on the other side of the NPR poll I just read about, who doesn’t think this is serious, who thinks we are all overreacting.  And on top of that, there’s this social taint: that I’m a rich guy, treating him and his business as unclean.

I decided I would not leave these things unsaid.

A few minutes later he walked back in to ring me up.  His affect flat, he went through the checklist of services performed: oil, filter, coolant, washer fluid – oops, there it was, no windshield or vacuum, “per customer request” – he read it out, as ironic as the leash of customer relations would allow.

I stopped him.  “Yeah, sorry for the paranoia about that.  This coronavirus thing is making us all crazy, huh?  Are you getting a lot of that?”

“No, not really.”

“Well, they’re telling us we’ve got to be super careful.”

His mask dropped.  “The whole thing just pisses me off.  I’m not afraid to travel.  I’m not afraid of any of this.  But I can’t go see my dad, and he’s in a nursing home.  I can’t go see my dad.”

“God, I’m so sorry.  Where is he?”

“He’s in New Jersey.  I just want to go see him, you know?”

“I’m really, really sorry about your dad.”  I paid, using my bare fingers on the pinpad of his card reader, making a mental note to use the wipes I have stashed in the car. He stapled my receipt.

“Well.  Thanks for coming in.  Have a nice day.” Still a hint of go-fuck-yourself.  But maybe not so much. 

Last week I’d have considered myself batshit crazy to act that way at a Grease Monkey.  Now I worry the Governor will shut the place down.  That guy won’t be seeing his dad anytime soon – to be honest, maybe ever.  Whatever worries I’m juggling right now don’t compare with that.   So maybe giving him a pass for being hostile is part of my job right now.  But as I replay the scene, I’m still not going to let him wipe my windows.

Impeachment as Soulcraft

~ John ~ Leave a comment

Well, it’s all over but the shouting.  And it turns out that shouting is all it would ever be.

In the view of many, impeachment was a fool’s errand, useless or worse, further emboldening the president, forcing his party to demonstrate the depth of its feckless fealty, and supercharging our polar politics to the point of electrocution.  With a result so starkly bleak, and so quixotically foretold, what can we possibly have gained?

Surely not knowledge.  Everything we saw on display we knew, or should have known, already.  Our politics are marketed so precisely as mold to us like second skins, which once worn, are impossible to peel.  As a result our democracy, once a contest of ideas, is increasingly one of identities.  The political implications of this are ruthless and dire.  When majority rule is no longer a matter of persuasion but of population, its ideal type is no longer Athens – it is Rwanda.

So there is some symmetry to the warring tribes ringed around the pugilists of the impeachment trial. But as I listened to them – and to the nightly reverberations from MSNBC, CNN and Fox – of course I heard different versions of the facts: but beyond that, contrasting stories about America.  Around the turn of the millennium, Eric Foner published “The Story of American Freedom,” which traced the concept from the days when colonists yearning for “freedom” described their relationship to Britain as “slavery” even though they themselves owned slaves.  Freedom has always been a contested, crooked, broken thread weaving through the fabric of American history. 

In the post-World-War-II era, two divided paradigms of freedom have dominated our politics: the conservative ideas of freedom as free enterprise and American international supremacy, and the liberal ideas of political liberalization, civil rights, and economic justice.  These paradigms have been our yin and yang, always in contention, sometimes — at our moments of greatest achievement — in alignment, but never truly at war.  Until, perhaps, today.

Today Republicans openly embrace an authoritarian leader and a lockstep party structure on the grounds that it is good for the short-term economy.  They champion native-born privilege at the expense of the historic immigrant narrative, thus reserving American freedom as a privilege for its citizens only and sacrificing the universalistic concept of America as an idea.  They enable and excuse a president who admires and emulates dictators.

Democrats, in turn, champion a politics of identity that emphasizes difference over unity, regulation over opportunity, centralization over autonomy, taxation over economic liberalization.  The farther Donald Trump moves to the right, the American left moves in equal and opposite reaction.  The more conservatives fuel economic inequality, the more Democrats demand a wealth tax.

And between them, a small group of civil servants.  Members of the national security establishment, the diplomatic corps, the administration itself.  Professionals who have served the nation under Democrats and Republicans, and who have seen how these ideas grind together where the rubber meets the road.   Who know that, to keep the struggle from turning into complete chaos, there are boundaries to be respected.  Rules of law.  Norms of integrity.  Standards of practice.  And if these are lost, so are we.  They stood up and objected to Trump’s Ukraine dealings, not out of political calculus, or because they thought they could win.  But because they had to.  Because they knew that the boundaries were at stake, and if they didn’t defend them, nobody would.  I supported impeachment because I stand with them. 

We are entering a phase of our history in which there will be less and less middle ground.  I deeply value free enterprise and individual autonomy.  But if forced to choose, I value democracy and justice more.  And if forced to stand up and be counted, I will do so, because the alternative is to accede to the twilight of authoritarianism that is eclipsing the globe, country by country and year by year, as we speak.   

The impeachment trial, and the election this fall, are ultimately about those differing ideas of freedom.  The Senate ultimately succumbed to the idea that whether presidents should be subject to rule of law and justice is now a question open for debate, to be decided by the electorate.  American voters will be asked the question again and again, through the primaries and the general election.  I don’t think there’s any such thing as asking the question too often right now.  If the current trends continue, we may miss it.