How the COVID-19 Crisis Demonstrates the Perversion of Legal Authority

We are surely seeing government power used in ways we could never have conceived of. For those with eyes to see, the perversion of the law as an instrument of plunder and control has been laid bare. Our government has gone from illegitimate prohibitive law to permissible law to compellant law. Let me explain. Prohibitive law is the only moral law in that it prohibits specific actions that violate rights. For example, laws that prohibit murder, rape, theft, fraud and robbery. In this conception of the law, it affects just a small area of human activity and the scope of liberty is vast. Individual rights are freely exercised. When prohibitive law moves beyond the protection of individual rights, it becomes immoral. Within this conception of the law, the law prohibits actions for the purpose of benefit. That benefit can be economic in that it distorts the free market by giving a competitive edge to one by hamstringing a competitor, or to plunder one group to enrich another. Or the law may confer a personal moral benefit, giving the force of law to a personal opinion, like Prohibition. Sometimes it is a mix of both. Once law is released from its proper moral sphere, the only limit on its subjects is the imagination of the lawmaker. This we have seen. There are so many things prohibited now that the sphere of liberty is small and rapidly getting smaller. Under this doctrine one can still exercise individual rights but the opportunity to do so is limited.

During this crisis, we have increased the oppressive nature of prohibitive law without the benefit of the legislative process. You may not leave your house or engage in business. Free movement and the ability to provide for oneself are fundamental rights. Here we slide into the realm of permissive law. Within this understanding of the law, you must obtain permission from the authority to exercise your fundamental rights. This is not the first time this has happened, obviously. All the restrictions on our right to self protection, i.e. gun control, are permissive laws. Under various lockdowns, you must now prove you are engaged in approved activities, you must justify the exercise of rights. If the authority has the right to reject your justification, it no longer respects rights at all. We are entering the realm of “Let me see your papers!” The authority issues documents or some other form under which the individual engages in almost any activity. Registrations and licenses proliferate as the authority exercises totalitarian control over the movements and activities of all the people within its jurisdiction.

Finally, we have seen the attempt to normalize compellant law. This is law under which you are forced to act without exception or prior obligation. One of the main objections to Obamacare was that it forced us to purchase something. This is different from car insurance, for example. You can exercise your right to freely move about without a car and its obligatory insurance. Obamacare forced you to buy insurance because you existed. Compulsory work, the draft, the order of the governor of Pennsylvania to force people to wear masks, these are examples of compellant law. Compellant law rejects any concept of individual rights. Once we enter a society which accepts compellant law, there is nothing the state cannot require of us. Your body, your person, is not your own, it belongs to the state and the state can demand anything of you or dispose of you as it sees fit. We have entered very dangerous territory if we accept this as the norm. Compulsory vaccinations do not respect the integrity of our person. Will we then accede to compulsory genetic testing to determine our health insurance or treatment, or compulsory abortions for those who show any defect? Will we soon be required to cooperate with our surveillance, allowing the government to track us? States are requiring some of its citizens to wear ankle monitors to enforce their stay at home order. Will mandatory testing choose our vocations or our fitness as parents? No, you say, that would never happen in America? Really? If someone told you six months ago that the state would close your business and force you to stay at home on pain of fine and imprisonment would you have believed it? 

What has made this even more dangerous is that all this has bypassed the legislative process essential in a representative democracy. It has all been done by executive fiat. It is done quickly and without warning and no judge has issued an injunction, no legislator has led the charge to curb this executive power. It is as if all this is acceptable! We have now set precedents that merely await a tyrant. We have lived the slippery slope for decades but that slope has turned into a cliff we are now careening over. We cannot accept this as the norm, we cannot recognize this as a legitimate exercise of government power, we cannot just roll over and relinquish our natural and God-given individual rights. It is wrong, it is un-American, it is inhumane. Where is our courage?