Tuesday, 15 December 2020 18:38

OPINION: COVID and the rise of 'Cage Keeper Democracy'

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The COVID pandemic this year has profoundly transformed the relationship of government to American citizens. Constitutional leashes have been obliterated as state and local politicians and officials have issued endless decrees that were vastly more effective at destroying freedom than at curbing a virus. And the Biden administration may soon take further leaps towards making our political system into a Cage Keeper Democracy where citizens’ ballots merely designate who will place them under house arrest. 


Supreme Court Justice Samuel Alito aptly declared last month, “The pandemic has resulted in previously unimaginable restrictions on individual liberty.” But the sheer extent of this rollback has been missed by many activists who seem to have little or no concern about what has happened to average Americans. Pop singer Fiona Apple recently called for a mass release of jail inmates and urged people to sympathize with those behind bars: “Anybody out there could find 1 or 2 instances in their lives when they felt a little bit alone, afraid, disbelieved, forgotten about. Magnify that by an unimaginable amount. And ask why you’re not doing something.”

Stalin reputedly said that one death is a tragedy, a million deaths is a statistic. The same is apparently true when politicians destroy millions of people’s freedom — it is a mere statistic that progressive minds dismiss. 

Earlier this month, Los Angeles Mayor Eric Garcetti banned all unnecessary “travel, including, without limitation, travel on foot, bicycle, scooter, motorcycle, automobile, or public transit.” The mayor offered no evidence that people strolling on sidewalks or parks spurred a tsunami of COVID cases. Garcetti also “ordered all residents living in the city ‘to remain in their homes’ forcing businesses that require in-person attendance to shut down.” Perhaps as a contingency in case Trump does something especially ornery, Garcetti’s order exempted “participating in an in-person outdoor protest while wearing a face covering, maintaining social distancing, and observing the Los Angeles County Protocol for Public Demonstrations.” Intercept reporter Lee Fang noted that the order also contained an exemption for people who work in “‘music, film and television production’ and private golf courses that follow state guidelines can stay open.”

Politicians around the nation are issuing decrees that look like they were designed by angst-stricken focus groups. Gov. Ralph Northam dictated last week that all Virginians must stay indoors from midnight until 5 a.m, with narrow exceptions for people traveling to work and for people suffering medical emergencies (nice public relations brushstroke on that one). If Northam has the right to ban people leaving their homes for five hours a day, then why would he not have a right to lock everyone up 24/7 until everyone gets a mandatory vaccine? Virginian Republican legislative leaders said Northam’s edict “smacks of martial law” and was “blatantly unconstitutional.” But there was no criticism of the edict from liberal mainstays such as the Washington Post. On the other hand, if Northam issued the midnight curfew to curb the spread of sexually transmitted diseases, he would have been vilified by progressives across the nation.

COVID restrictions are supposedly justified based on evidence of specific ways that the virus is transmitted. But the contact tracing in many parts of the nation has collapsed as the surge in cases has buried bureaucratic efforts to track down the source of infections. But politicians are increasingly banning activities and businesses regardless of what the data reveals. District of Columbia contact tracing data attributes less than one percent of Covid cases to gyms and fitness activities but last week Mayor Muriel Bowser still banned high school sports and shut down indoor fitness classes.

Many governors and mayors are responding to the latest surge in COVID cases with arcane decrees that sound like they were written by bureaucrats on amphetamines. Delaware Gov. John Carney decreed last week that stores larger than 100,000 square feet can have only 20% occupancy, stores between 5,000 and 100,000 square feet can have 30% occupancy, and stores less than 5,000 feet and churches and funeral services can have 40% occupancy. But different rules apply if it is a “gathering” of people instead of customers coming in off the street. In that case, “Indoor gatherings at businesses… must be limited to the lesser of 30 percent of the venue’s stated fire capacity, or 10 people.” Delaware gyms are permitted to hold small exercise classes but only if participants stay “at least 13 feet apart.” It is not known whether the state government placed an emergency order for hundreds of tape measures for its inspectors. 

Regardless of whether the micro-managing reduces the number of COVID-positive tests, Gov. Carney will be feted for his vigilance. Store access restrictions in many states could result in long lines of people, East German-style, standing outside in bitter temps and catching colds and maybe pneumonia. But that won’t matter as long as officials can boast about reducing the number of COVID-positive tests. 

The 2020 pandemic showed what it takes to sway many Americans to accept absolute power: merely the endless recitation of the phrase “science and data.” It didn’t matter that the science continually changed or that the data was often worse than useless. Instead, people who cheered any policy portrayed as based on “science and data” proved that they were part of the intellectual elite — even if that meant simply having a B.S. degree in sociology from a fourth-tier college that has not rejected any student who applied for admission since the Reagan era. 

The adulation of science is, in reality, simply worship of politicians who recite the right phrases. New York Gov. Andrew Cuomo was lionized by the media for his press conferences which won an Emmy award and his self-tribute, "American Crisis: Leadership Lessons from the COVID-19 Pandemic," quickly became a bestseller. Cuomo effectively seized absolute power in New York state after the start of the pandemic, and compelled nursing homes to admit COVID-infected patients and permitted COVID-infected staffers to keep working at those homes. More than 10,000 New York nursing home patients died of COVID.

President-elect Joe Biden will likely soon receive a Cuomo-style halo for his championing of a mandate to compel all Americans to wear a mask anytime they are outside. Biden declared last week, “My first 100 days, I’m going to ask for a masking plan. Everyone for the first 100 days of my administration to wear a mask.” But, as AIER contributor Stacey Rudin pointed out, CDC data showed that “70.6% of people diagnosed with (COVID) always wear a mask vs 3.9% who never do.” Many states that mandated masks continue to permit people to suffice with a scarf or bandana — even though studies show that such garments “offered very little protection.” Rep. Thomas Massie, one of the smartest members of Congress, observed, “The reality is [mask] compliance has been high and as compliance has gone up, the [positive COVID test] curve has gotten steeper. If masks were ever going to work, there would have been a specification for particle size and fitment.” But the faulty guidance has done nothing to deter some media outlets from portraying non-mask wearers as heretics who threaten to damn anyone within a five-mile radius. 

The proliferation of new shutdown and lockdown orders vivifies the failure of the courts to rein in politicians this year. After the Michigan Supreme Court decreed that Gov. (Gretchen) Whitmer was effectively a lawless dictator who had illegally extended a “state of emergency,” Whitmer’s appointees simply issued “new COVID-19 emergency orders that are nearly identical to her invalidated emergency orders,” as the Mackinac Center noted. Courts have repeatedly condemned overreaches by California Gov. Gavin Newsom but he continues issuing even more sweeping prohibitions on daily life (which happily some county sheriffs announced they will not enforce). 

On Thanksgiving Eve, the Supreme Court struck down New York state restrictions that limited religious gatherings to 10 or fewer people while permitting far more leeway for businesses to operate, declaring that Cuomo’s rules were “far more restrictive than any COVID-related regulations that have previously come before the Court… and far more severe than has been shown to be required to prevent the spread of the virus.” The liberal establishment reacted with horror. An American Civil Liberties Union official fretted to the New York Times that “the freedom to worship… does not include a license to harm others or endanger public health.” 

Harvard law professor Lawrence Tribe and Cornell professor Michael Dorf warned that the Supreme Court was becoming “a place like Gilead — the theocratic and misogynist country in Margaret Atwood’s dystopian ‘The Handmaid’s Tale.’” Twitter exploded with denunciations of recently confirmed Justice Amy Coney Barrett, who joined the majority opinion, tagging her with the nickname #AmyCovidBarrett. A Twitter activist who calls herself CourageousGirl2 derided Barrett, declaring that “the HANDMAID at SCOTUS rounded out the ChristoFacists ! We Must EXPAND the Court or we are In DANGER.”

Will Biden exploit the Supreme Court’s resistance to lockdown orders to justify adding a bevy of new justices, the same way that President Franklin Roosevelt claimed that the Court’s objections to his economic authoritarianism justified his attempt to pack the court? In 1937, most of the nation’s newspapers went to the barricade to resist FDR’s power grab. Is there any reason to expect editorial pages that have cheered almost every COVID crackdown to take a stand to stop Biden on the steps of the Supreme Court?

An 1875 article in the American Law Review warned that the Civil War “left the average American politician with a powerful desire to acquire property from other people without paying for it.” In the same way, the COVID pandemic is fueling many politicians’ passion for destroying Americans’ freedom based on the flimsiest pretexts. Thus far, politicians have paid no price for their constitutional demolitions. The only certainty is that much of the media and legions of activists will cheer the next lockdown.

James Bovard is the author of 10 books, including 2012’s "Public Policy Hooligan" and 2006’s "Attention Deficit Democracy." He has written for the New York Times, Wall Street Journal, Playboy, Washington Post, and many other publications. This article was originally published by the American Institute for Economic Research.

Last modified on Tuesday, 15 December 2020 18:53