Coronavirus Has Infected the Rule of Law
Most American states have imposed “stay at home” orders, permitting people to leave their homes only for specific, government-approved purposes. Here in the United Kingdom, we’re in a similar situation.
The desire to stop the spread of a deadly disease is understandable. The trouble is, many of these lockdowns are unconstitutional and illegal.
The laws are different across the various countries and states. But consider them all, and a clear pattern emerges. Coronavirus is leading to an outbreak of lawlessness at the highest levels.
First, take the United States. The Fifth Amendment states that no person shall “be deprived of life, liberty or property, without due process of law.”
Courts have interpreted this amendment to mean that those with an infectious disease can be forcibly quarantined—but there must be some form of due process, where they are proved to be contagious.
“[A] government-ordered quarantine of all persons in a city block or a postal zip code or a telephone area code would be an egregious violation of due process, both substantive and procedural,” explained Judge Andrew Napolitano. “Substantively, no government in America has the lawful power to curtail natural rights by decree.
“Procedurally, notwithstanding the fear of disease contagion, the states and feds may only quarantine those who are actively contagious and will infect others imminently. And it must present evidence of both at a trial at which it bears the burden of proof.”
Other rights, supposedly enshrined in law by the U.S. Constitution, are being trampled on, most notably freedom of religion and freedom of assembly. Churches have been declared nonessential and are being forcibly shut down by order of the government.
“Can the government simply declare all churches nonessential, close them indefinitely, and thus circumvent the First Amendment with so much ease as to render it effectively nullified from here on out?” asked Matt Walsh. “I doubt that was ever what the men who wrote it had in mind, but here we are.”
In the UK, we’re being hit with the same trend.
On Monday, March 23, British Prime Minister Boris Johnson put the UK in lockdown. With “immediate effect,” no one could leave his or her home without a government-approved reason. The law authorizing Johnson to enact such restrictions, however, was not created until later in the week.
Dave Thompson, chief constable of the West Midlands, admitted on Twitter that, until that law was enacted, “policing acted to support” the prime minister’s comments “without laws to do it.”
The result was a mess.
The rule of law protects us from tyranny. But it also keeps everyone on the same page. The law is clearly spelled out, and everyone knows what is expected of him.
But that week, police forces weren’t enforcing the law; they were acting on their own interpretation of a few comments from the prime minister. Each police force did whatever was right in their own eyes. Some said you could take a short drive to a park to go jogging; others said that was forbidden. Some set up checkpoints to interview drivers; others believed that went too far. Some police decided that shops could only sell essential items and visited stores, forcing them to remove nonessentials from the shelves, and fining those who bought them; meanwhile, in the next district over, shops were unaffected.
This is not just a technical legal problem. Former chief justice and historian Lord Sumption was so disturbed by the lawless state of affairs that he wrote an article for the Times on March 26, warning that “we are entitled to wonder what kind of society we have become when an official can give orders and expect to be obeyed without any apparent legal basis, simply because it is necessary.”
“There is a difference between law and official instructions,” he wrote. “It is the difference between a democracy and a police state.”
Even once the regulations were passed, this type of lawless behavior continued. Government officials gave “advice” more restrictive than what the law actually said—and many local police forces enforced it. Much has been made, for example, of the idea that you are only allowed to exercise once per day. Government officials are constantly reminding the public of the limit. Police have been inundated with calls from informers reporting their neighbors taking a second jog.
But that’s not in the law. The law says you cannot leave your house without a reasonable excuse. It lists daily exercise in a list of examples of reasonable excuses. It says nothing about how many times you may do so. There are plenty of circumstances in which a second bout of exercise would be reasonable—and therefore legal.
This is just one small example among many where official guidance, enforced by the police, goes beyond the actual law. The list keeps growing: You cannot exercise for more than an hour a day; you cannot sit down on a bench during or after your exercise; you can only go to work if your job is essential. Not one of these appears in the law; nevertheless, we’ve been given these commands.
Again, these are not just tedious legal details. Lord Sumption warned about this too, appearing on the bbc’s World at One on March 30, stating, “This is what a police state is like. It is a state in which the government can issue orders or express preferences with no legal authority and the police will enforce ministers’ wishes.”
Weeks after the original lockdown orders, such lawless law enforcement has continued. Spiked editor Brendan O’Neill reported on police activity in Hyde Park over the weekend. He saw a mostly empty park, with those present conforming to the law. Yet the police were enforcing a different standard. One police officer, he reported, said, “Everyone is supposed to be at home this weekend.”
“I point out that there is no law forbidding people from going out this weekend,” he wrote. “We can still exercise, we can still shop, we can still buy food in order to, you know, stay alive. And, I kid you not, he told me that the law is a poor law and he is taking it upon himself to remind people that staying home is the right option.” The law doesn’t matter; the police officer’s will does.
In fact, the law matters so little that one woman was arrested and then convicted of something that was not against the coronavirus law. The widespread media attention caused the conviction to be overturned. But it was a worrying example of the police, and even the judiciary, not caring about what the law actually says.
Like in the United States, Britain’s lockdown order itself is probably not legal. The law was passed, not by an act of Parliament, but under the 1984 Public Health Act (and yes, I spotted that very Orwellian title). Under this law, the government can take emergency action, which Parliament must later approve.
“[T]he regulations have not yet been approved by any parliamentary vote … nor did they have any parliamentary scrutiny,” noted legal commentator David Allen Green. “In essence, the most illiberal laws since at least the Second World War were imposed without any formal democratic sanction.”
The trouble is, when Parliament passed the 1984 act, it never intended to give the government the power to forcibly quarantine the entire country. Robert Craig has a lengthy analysis on UK Human Rights Blog. “The idea that ministers can use the 1984 act to impose ‘special restrictions’ on non-infected people, never mind the public as a whole, must be seriously questionable,” he concluded. “There appears to be a strong case that the regulations are ultra vires,” or beyond the legal power of the government.
All this is being done with the full support of the population—in both the UK and the U.S. In “The Coronavirus Has Put America on a Collision Course With the Constitution,” the Atlantic wrote, “Democrats and Republicans alike are willing to sacrifice civil liberties to fight the virus.” It found that the vast majority supported things like limiting free speech to stop the spread of misinformation and shutting down church gatherings. It wrote, “[E]ven when we explicitly told half of our sample that the policies may violate the Constitution, the majority supported all eight of them—even the speech restrictions.”
This same trend is seen even more dramatically in Europe. Last week, I wrote about the way Hungarian Prime Minister Viktor Orbán had essentially turned himself into a dictator—with the powers to make and break laws at will.
This lack of concern for the foundational law of the land, in people on both the left and right, is dangerous.
Historian Paul Johnson wrote an important article in 1999 titled “No Law Without Order, No Freedom Without Law.” In it, he warned:
The rule of law, as distinct from the rule of a person, or class or people, and as opposed to the rule of force, is an abstract, sophisticated concept. It is mighty difficult to achieve. But until it is achieved, and established in the public mind with such vehemence that masses of individuals are prepared to die to uphold it, no other form of progress can be regarded as secure. The Greeks had tried to establish the rule of law but failed. The Romans had succeeded under their republic but Caesar and his successors had destroyed it. The essence of the rule of law is its impersonality, omnipotence and ubiquity. It is the same law for everyone, everywhere—kings, emperors, high priests, the state itself, are subject to it. If exceptions are made, the rule of law begins to collapse—that was the grand lesson of antiquity.
Yet look how quickly we are prepared to make exceptions. A virus hits, and the overwhelming majority no longer care about the rule of law. We no longer regard it as more important than life itself.
Rule of law is fragile, and in both our nations, we are endangering it.
There is an important reason that rule of law works so well. It is a biblical principle. Even secular scholars trace its origin to the Bible.
It is no coincidence that as we become a less moral people, our reverence for the rule of law declines. We are more willing to twist the law, adapting it to changing individuals or circumstances.
Harvard Prof. David Landes traced the origin of the idea of law reigning supreme back to the Pentateuch—the first five books of the Bible. “The concept of property rights went back to biblical times,” he wrote in his book The Wealth and Poverty of Nations.
“The Hebrew hostility to autocracy, even their own, was formed in Egypt and the desert,” he added. He gave a couple examples of how leadership within Israel differed from other parts of the world. When Moses and, later Samuel, were accused of flawed leadership, both responded by saying that they had not taken anyone’s possessions (Numbers 16:15; 1 Samuel 12:3). In other societies at the time, it was taken for granted that the will of the ruler was supreme. If a king wanted someone else’s property, he could take it. Only in Israel was the law supreme. This rule of law and respect for property rights, wrote Landes, “set the Israelites apart from any of the kingdoms around.”
The Bible is full of “egalitarian laws and morals” and contains “prophetic rebukes of power and exaltation of the humble,” he wrote. It contains a law to which all must submit. America’s Founding Fathers were well versed in the Bible. The distrust for human authority and human nature and the respect for the rule of law found in the Constitution come directly from the pages of the Bible.
But now we are going back to worshiping the will of the leader. If the government wants certain restrictions, the police will enforce them, regardless of what the law actually says.
Trumpet editor in chief Gerald Flurry addressed this subject in the latest Trumpet issue in his article “A Dangerous New Age of ‘Worshiping the Will.’” “The radical left is casting aside the foundational law of the land, telling us that it is just getting in the way,” he wrote. “We don’t need that old law, they insist. We know what justice is. You can trust us!”
Perhaps this idea has never had such widespread acceptance as it does now, because of coronavirus. Citizens are showing their leaders that they no longer revere the rule of law. In fact, they’ll actively support its elimination under the right circumstances.
In that article, Mr. Flurry said this rejection of rule of law is “will worship”—based on a phrase in Colossians 2. We don’t listen to facts or evidence; we ignore what the law actually says and instead submit to an individual’s will.
The warning about “will worship” leaps out in some of the rare criticism of the lockdowns.
Walsh warned, “We are being governed according to the whims of bureaucrats and politicians who themselves do not appear to be answerable to any higher earthly authority.” This is will worship: Their will is elevated above all law.
“[I]n these times we are not subject to the opinions of the Founding Fathers or even the legal document they wrote,” Walsh wrote. “We have entered a point in our history where governors, mayors and local county boards can come up with any rule they like, outlaw whatever behavior they don’t like, and enforce their edicts at gun point.”
“Reason appears to have gone out of the window,” warned Kathy Gyngell for The Conservative Woman. Any discussion about the legality of new regulations or their proportionality to the threat is immediately shouted down.
“Such reasoning paves the way for tyrants!” warned Mr. Flurry. “Tyrants hate facts and truths that limit their power. So they ignore reality in favor of their own ‘magic interpretation’ of the world.”
In that article, he warned that there is a deeper reality behind this rejection of law in favor of mass hysteria, which we must understand. “We must recognize the evil spiritual force behind this push to undermine the law!” he wrote.
We need to see that same force active in the coronavirus crisis.
We need to understand that spiritual dimension. It is the only way to truly see what is happening.
It is also the only source of hope. It will show us the only way that law and justice will be not only restored but made stronger and more long-lasting than ever. To understand this, read “A Dangerous New Age of ‘Worshiping the Will’” in the May-June 2020 Trumpet magazine.