Consider distinction between ‘just powers,’ ‘rule of law’
What can the shelter-inplace protests tell us about the stands we take? Anti-maskers might remind us that this country’s founding instrument, the Declaration of Independence, declares that we have the “unalienable Rights” of “Liberty and the pursuit of Happiness.” However, in that instrument that declaration of rights is followed by the recognition — “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” As we near the 200th anniversary of the death of the Declaration’s author, Thomas Jefferson, can we say our government’s powers are just and with our consent?
While “rule of law” is the common refrain associated with our system of government these days, the concept of “just powers,” identified in the Declaration and carried forward into the Constitution by Gouverneur Morris more than a decade later, is the standard. What’s in a word or phrase? “Just powers” suggest an aim for outcomes that are fair while “rule of law” might trigger associations of compliance or control. Since the American colonials were objecting to laws made by the British parliament without their representation, a call for justice could justify a revolt against unjust law.
Protecting the people from unjust laws and bad government, in general, was the Framers’ intention as they formulated a system of checks and balances and filtrations that resulted in the Constitution. That system also was meant to protect the people from themselves. In the words of James Madison, “it will be proper to take a view of the ends to be served by it. These were first to protect the people agst. their rulers: secondly to protect the people agst. the transient impressions into which they themselves might be led.” (Madison’s Notes from the Constitutional Debates, June 26, 1787) Consent has some similarities with justice, such as the ability to form an objective judgment. And like the scales of justice, consent requires the competence to weigh harms and benefits, to recognize truth from falsehood, to distinguish fact from opinion, prejudicial labels, or emotional influence.
When it comes to the pandemic, countries like Taiwan, New Zealand, and Norway, to name a few, early on introduced reliable and widespread testing, contact tracing, and isolation and succeeded in reducing shelter-in-place time and the risk of additional waves of virus infection. This was not the case in the U.S., leading to more deaths per capita and severe economic harm and other hardships as well as the possibility of need for more shelter-in-place periods. Are those who demand an end to shelter-in-place now, without regard for consequences, rebels against unjust rule as presidential tweets of “LIBERATE” suggest? Or are they “the dupes of pretended patriots [that are] daily misled into the most baneful measures and opinions by the false reports circulated by designing men”? (Mr. Gerry, May 31, 1787)
On the heels of designing men and false reports, being fully informed is another component of consent. With media consolidation, the elimination of the Fairness Doctrine, lobbyists informing our policy makers, advertisers financing our media and our politicians, and a host of bubble-world pundit-commentators commenting, etc., can we truly say we are fully informed or can trust our government when it comes to, for example, health care policy or international affairs?
Protecting the people from unjust laws and bad government, in general, was the Framers’ intention as they formulated a system of checks and balances and filtrations that resulted in the Constitution.