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Breaking News Alert This Week In Lawfare Land: What Happens Next?

If States Don’t Roll Back Lockdowns, Americans Will Increase Their Civil Disobedience


We’re just a couple months into the year and 2021 is already looking better than 2020. COVID cases, hospitalizations, and deaths are all falling as multiple vaccines are approved and being administered. The distribution system is not perfect, and improvements are needed, but in general, the news is good and hopeful. Americans are looking forward to getting vaccinated and getting back into the regular swing of life.

The message from the Centers from Disease Control, however, is: “not so fast.” In contrast to the rising hopes of most Americans, Dr. Anthony Fauci is preaching more caution, more isolation, and more of the same. “There are things, even if you’re vaccinated, that you’re not going to be able to do in society,” Fauci said last Monday in a White House briefing. “For example, indoor dining, theaters, places where people congregate. That’s because of the safety of society.”

People have largely followed the CDC’s advice on the pandemic, in part because they believed it was valid, and in part because many states’ governors used it to guide their emergency decrees that carried the force of law. Libertarians warned that emergency powers have a way of becoming permanent powers. They seem to be right in this case, not so much because of what the CDC is advising, but because of what their local governments are doing with that advice.

Science and public sentiment are aligned in saying that people who are vaccinated are safe from COVID. That is, in fact, the point of a vaccine, and studies continue to show that these particular vaccines are all very successful at that task.

As public sentiment diverges from the law, the law becomes irrelevant. Many pandemic mandates were already difficult to enforce and relied on the public agreeing to follow them. Even backed up by the state’s monopoly on the use of force, they will be irrelevant without widespread public buy-in.

Laws can sometimes change behavior at the margins, but only if they are enforced and the idea of law is respected. That concept saw widespread erosion even before the pandemic. Statute books are stuffed with laws that prosecutors never enforce and regulations that most people are unaware of—until they get tangled up in them.

In 2009, Boston lawyer Harvey Silverglate wrote a book called “Three Felonies a Day,” referring to the number of crimes the average American is estimated to commit daily because of vague, outdated, and rarely enforced laws. Thanks to COVID and state mandates, we’re probably up to half a dozen a day at least.

Such a system is bound to breed disrespect for the law. When something is illegal, the average person’s reaction is supposed to be “Oh, that’s important. I’d better not do that, then.” Instead, 21st-century American law inspires derision. “That’s never enforced,” or “that’s outdated,” or “who cares what the law says” are far more common responses nowadays.

Frederic Bastiat wrote on this point in “The Law” in 1850.

No society can exist unless the laws are respected to a certain degree. The safest way to make laws respected is to make them respectable. When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence, and it would be difficult for a person to choose between them. The nature of law is to maintain justice. This is so much the case that, in the minds of the people, law and justice are one and the same thing. There is in all of us a strong disposition to believe that anything lawful is also legitimate. This belief is so widespread that many persons have erroneously held that things are ‘just’ because law makes them so.

Do COVID mandates force us to choose between law and morality? For the most part, I don’t think so. But that is only true to the extent they are backed up by science and the consent of the governed.

The best laws are passed by the people’s representatives in accordance with our best understanding of the natural world and take into account tradeoffs and the potential problems they create. Many restrictions passed in the last year fail by some of these measures. The CDC’s latest ideas fail by all of them.

What happens when the people no longer respect the law? Nothing good. In the best-case scenario, lawlessness on pandemic rules means that the government looks ridiculous and the rule of law is slightly diminished. People go back to ignoring CDC guidelines like we always did.

Remember when they cautioned against excessive screen-time for children? To kids stuck in Zoom classes for six hours a day, that widely disregarded advice must be recalled with nostalgia and longing.

The worst case, though, is something more dangerous: the erosion of law and societal order. In discussing some mostly ignored government initiatives in 2014, law professor Glenn Reynolds reminded us of an old term for this situation: Irish democracy.

That is, in the words of another professor, James Scott, “the silent, dogged resistance, withdrawal, and truculence of millions of ordinary people,” rather than “revolutionary vanguards or rioting mobs.” Americans are not going to start a revolution over anything Fauci says. But we will, at a certain point, stop listening.

The tremulous will stay sheltered in their apartments, but more and more regular Americans will calmly and cynically break the law. It will illustrate the limits of government’s power. Faith in government will continue to plummet as people ignore its laws. That is not good for a society, because it will most certainly not stop there.

The law deserves our respect, but to get it, it must prove itself worthy of that respect. Caution was warranted in this crisis, and still is in some ways, but excessive caution that flies in the face of science and reason (such as many school districts’ refusal to return to in-person education) will cause people not only to doubt this new advice but all government. Some skepticism of government has always been warranted, to be sure, but massive civil disobedience can lead only to the death of law.

The CDC should follow the science and the state governments should follow the people. Irish democracy was so called because it was the only form of democratic expression of which that conquered and disenfranchised people were capable. But Ireland is free now, and America is too. Our politicians should remember it when they seek to impose illogical, unenforceable rules on a people unwilling to abide by them.