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Wednesday, April 22, 2020

Emergency Powers and the Greater Good

Are you willing to sacrifice your rights and liberties for the greater good? Who do you trust with defining that "greater good"? Barack Obama? Donald Trump?


With one stroke of the pen, in its 2005 Kelo v. New London decision the Supreme Court demoted property rights in America to utilitarian tools at government's disposal. Today, 15 years later, we are seeing the same moral degeneration of constitutional rights and liberties, this time under the banner of government emergency powers.

In my book Faith and Freedom: The Moral Case for America, I discussed Kelo from the perspectives of moral philosophy. I noted that the case pinned the natural-rights moral foundation of the U.S. Constitution against the utilitarian value theory behind social justice and socialism. The Court's opinion in Kelo stated that government can take one private citizen's property and transfer it to another private citizen if government has reasons to believe that the transfer will increase tax revenue.

In other words, a property right is protected only on the condition that it is of a certain use to the community in which it is located. The jurisdiction of determining "use" lies with the local government - not with the property owner. Your right to your property could suddenly be subjected to the will of your neighbor. If he could make the case that he would produce substantially more tax revenue for government than you do, if he were given the right to your property, then you could lose your property.

The Kelo case rests on a simple utilitarian calculation (as do government emergency powers). If Susette Kelo, the property owner in New London, produces $100 worth of tax revenue in a year, and the prospective new owner would produce $110, then Susette Kelo will lose her property right. She loses it through no action of her own. She is just the victim of a utility calculation where someone else - government - has the sole authority to determine the value that, in turn, decides the status of her property right.

The application of utilitarianism in public policy is not limited to Kelo v. New London. It has been at work for a long time, and was made the dominant fiscal function of our federal government in the 1960s. The remarkable content of Kelo is how blatantly the Supreme Court put the consequences of that utilitarianism on full display. A utilitarian condition was applied to a citizen's property right with direct reference to a higher value - a greater good - that in turn could be measured in dollars and cents. 

Our Constitution was written to prevent the application of conditions to our rights and our liberty. It was, plainly, not written as a utilitarian document. Philosophically speaking, the utilitarian value theory had not yet seen the light of day in the late 18th century; the prevailing wisdom was natural rights. The practical significance of this is not to be under-estimated: natural-rights value theory protect rights unconditionally, while utilitarianism make rights subordinate to a greater good.* 

By definition, the individual is reduced to an instrument in the pursuit of this greater good: if your work does not help government achieve the higher value of tax revenue as well as another person's work does, then you are not as valuable an instrument for the pursuit of that higher value. Therefore, your rights can be revoked in the interest of that greater good.

A direct parallel is the application of QALY calculations in government-run health care systems. A government board determines measurements by which a doctor should decide if a person is worth the treatment he or she needs. Will the person live a quality life afterward, and for how long? The jurisdiction of defining "quality life" lies with the government board, not with the individual patient and the doctor. 

The British National Health Service uses this method on a regular basis.

Emergency powers are also utilitarian in nature. Government puts conditions on our rights, including property rights. You still retain your ownership of your business, but you are not allowed to use that property. By the same token, an individual still has the right to the proceeds of his own labor - or what is left of it after taxes - but he is not allowed to put that right to work (pun intended) and earn those proceeds. Government nullifies the meaning of property rights and liberty in the name of a greater good.

A common argument in favor of the enforced lockdown in response to the epidemic is that you cannot put a price on a life. An often-heard version of this is: "What is your freedom worth if you are dead?" Superficially, these are valid points: can anything be worth more than a person's life? The problem is that when this argument is put to work, it actually operates contrary to its own intent. An economic depression, even an artificial one as we are now creating, drives up suicides and causes a decline in public health which, over the long term, leads to more premature deaths.**

In other words, an economic lockdown in the name of the sacrosanctity of every life ends up trading some lives for others. This trade-off is done under a higher value - an unspecified one since the stated goal of saving lives is not achieved - which de facto means that our currently exercised emergency powers are utilitarian in nature. 

As in Kelo v. New London, the utilitarian fallout was not intended. While it has never been made clear exactly what value theory the Supreme Court relied on when ruling against Susette Kelo, the function was clearly utilitarian. The same is true with emergency powers: they suspend individual rights in the name of another goal than the one stated: while saving lives is the desired goal, the unintended consequences are very different. 

This is very dangerous. Emergency powers are not well defined - they are so blurry, in fact, that given the response to the coronavirus epidemic, outright draconian scenarios now fall within the realm of the possible. Conventionally, we would have no reason to worry: the exercise of emergency powers is supposed to be prudent and responsible. This is largely the case with the Trump administration, but that is only because of who the president is; as an exceptional but not impossible scenario, these powers can be abused in ways that very few people would be willing to conceptualize today.

At the heart of the problem lies the concept of the "greater good". The definition of this concept is not within the jurisdiction of the legislative branch. It lies in the hands of the executive branch. In other words, the sword is wielded entirely at the discretion of the president. 

If he or she so desires, the president - or a governor at the state level - could usurp unprecedented powers simply by means of declaring a serious enough emergency. He or she could order Congress closed and the Supreme Court suspended, for example by declaring climate change a national emergency. The president deems it necessary to respond with sweeping Green New Deal measures, and any exercise of checks and balances by the other two branches of government would slow down those responses. Therefore, the president declares the other branches of government suspended for the duration of the emergency powers. 

Unimaginable? When you celebrated the new year a few months go, did you consider the current shutdown unimaginable?

The problem with conventional wisdom around our Constitution and its practice is that it assumes that powers are exercised responsibly. Our Founding Fathers, however, lived in a time when responsible government was an ideal to strive for - not the norm. They refused to make the new country a kingdom, and George Washington refused to run for more than two terms, because one man could or should be trusted with even a semblance of unlimited powers.

Unrestricted emergency powers, in the name of a greater good, led to the closing of the Roman Senate. Julius Caesar usurped powers he was not supposed to have, but could grab because the emergency-powers function - instituted for war times only - was written under the assumption that it would be exercised responsibly.

We need a sweeping renovation of government emergency powers. Long term, we need to repeal those powers entirely - they are far too dangerous to be trusted in the hands of one person. This has been made very clear by how some governors (Colorado, Michigan, Kansas) have acted under the current crisis. It should raise the hair on our necks imagining what one of those governors would do as president.

Short term, Congress and state legislatures must start defining what constitutes the greater good - the higher value - for which an emergency can be declared. This is as badly needed now as the property-rights reforms were after Kelo. In Faith and Freedom, I refer to a study by George Mason University law professor Iliya Somin, explaining that 45 states responded to Kelo with constitutional measures to reinforce property rights. 

I also report an interesting finding in Somin's study, one that is highly relevant in terms of reining in emergency powers. In states where the initiative to those measures came from citizens activists, the reinforcement was more principled in nature; in states where legislators took the initiative the measures passed were generally weaker and characterized by utilitarian ambitions. This suggests that much-needed reforms to emergency powers should reflect the interests of individual citizens - not the desires of government.

Removing emergency powers entirely is likely to be a long, arduous process. Therefore, the main focus must be on strictly enumerating those powers so that no individual, no chief executive of government, can use them to alter constitutional functions. Individual citizens must never be subjected to a greater good.

If you disagree, I invite you to provide a list in the comments section below, of the greater goods - the higher values - for which you would be happy to have your life restricted by government. Explain what restrictions you would approve of. Then add a list of higher values for which you would not want your life restricted, and what restrictions you disapprove of. 

Then explain how you are going to make sure that the list that government chooses is the first one, and not the second.
*) There is a conversation in the libertarian literature about a so-called "as good and enough" proviso in John Locke's property-rights theory. The suggestion is that there is something akin to a utilitarian restriction on property rights. This is not correct, a point I will address in a separate article.
**) It does not help to create a single-payer system in response to this. Countries with single-payer health care appear to be suffering more under this epidemic than countries with a more market-oriented health care system.

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