An Impertinent Truth
Then it came burning hot into my mind, whatever he said, and however he flattered, when he got me home to his House, he would sell me for a Slave. Imagine a group of experts who have identified a pathology that will kill thousands of Americans by year’s end. These experts have studied the crimes committed over the past ten years, and they can confidently claim they found a particular race, or ethnicity, or sex (there are fifty now, don’t forget) that has been responsible for some discrete number of murders, rapes, and severe injuries in the past. That race, sex, or group has perpetrated these outrages at a relatively steady rate over the last decade, and the experts can extrapolate the level of rape, murder, and maiming to expect in the coming year. In a certain sense, the experts are for once correct: their models, based upon consistent, reliable, historical data, can be back-tested the way a financier checks his assumptions about a portfolio against its previous performance, and the experts can with a strikingly narrow confidence window attest to their predictions. Some particular group of people, the group the experts have singled out, will indeed be responsible for something close to the projected number of crimes. The experts continue. Unfortunately, their models can’t show which members of this particular group will commit the crime. Any member could, potentially, be an asymptomatic carrier of pathological aggression. We have no choice but to distance the entire group from the rest of society. To allow this group to live as free men would of course be ideal, and our laws demand it, but public health has its own, more pressing demands. The group must remain at home. After all, if it saves even one life, it’s worth it. Now, having just come off house arrest ourselves, we make a feeble objection: this pathology of aggression is neither contagious nor multiplicative; maybe a quarantine is not the solution. The experts reply, and in this they are uncharacteristically correct again, that the assumptions about the communicability of the first disease were simply descriptions about the means by which the first disease achieved its ultimate death count. But the death count is the thing. Whether it’s the Chinese Flu or this new social disease of aggression, the ultimate conclusion is the same: freedom means death. And our mathematics has arrived at an expected value for just how much. Quantifiable death. Assured death. If we refuse to force the group in question to stay at home, people will die who, but for our selfish fetish for liberty, would have lived. So you shake your head, and pity the poor folk that must submit to house arrest. You’ve been there. Still, of course, you understand that it is done for the common good. Unfortunately, the experts come on television the next afternoon (they have a habit of doing this). They have bad news (another of their impertinent habits). Upon further consideration, their analysis really applies to every American. You see, while the first group selected for imprisonment would account for 8,000 crimes, you are a member of a group that would account for 5,000, and of another group that would account for 1,500. In fact, it appears the entire country must live under house arrest, because any man’s freedom is a threat. After all, any one of us might be a murderer or a rapist, though not yet showing symptoms of the pathology. Once the experts have spoken, the politicians come to soothe us: yes, you all must stay home, but no need to panic, because only non-essential businesses (read: the one you built by years of struggle and risk; the one that feeds your family; the one you meant to leave to your children) will close. Essential businesses (read: whiskey and abortions) will remain. If you’re particularly lucky, you’re in Michigan, where a woman who appears to have been grown in a test-tube with the spliced DNA of Nurse Ratched and Mommie Dearest will hunt you down if you try to grow winter vegetables. Take heart. I’m told we’ll find a cure for risk, crime, and death within the year. Until then, maybe you should hide the wire hangers.
Old Thoughts on Risk
The coronavirus has exposed Americans’ readiness to sacrifice genuine and timeless human goods for the sake of amorphous and unproven health benefits. It has exposed our naïve trust in the wisdom of experts. It has exposed our shoddy intellectual defenses in the face of misused statistics. And it has exposed that perennial moral disease, one from which not one of us will be entirely free on this side of Glory, but one which seems to haunt with redoubled force great nations in their decline: our efforts to deny our created and contingent nature, and to pretend that we are anything but creatures born to die. These moral and philosophical errors have perverted our laws; our laws in turn amplify the perversion. Decades of bad tort precedent taught us to expect to transfer to others what properly is our own burden – namely, to preserve our own safety. In present day, overbearing tort law threatens to bankrupt businesses that seek to reopen their operations. Tort decisions over the past several decades have fundamentally altered the traditional standard for one’s duty of care – the care expected of a reasonable, prudent man. The standard served to tether liability to common practice and community norms governing accepted behaviors. Behind that practice lay a myriad of unspoken assumptions, many of which were assumptions about a concomitant burden of prudence upon all parties to an injury, assumptions about the inevitability of risk in any activity, and assumptions about the extent to which a party should be excused for remote or unforeseeable consequences of his actions. Which means that in a sane world, a man injured while walking along a cricket field had no cause of action where it was shown that only an unusually strong hit would send a ball far enough to reach the path. Underlying such a rule would be the salutary presumption that normal, free men play sports, and that other normal, free men ought to keep a weather eye on the pitch when crossing a cricket field. The players have a duty not to undertake a danger outside the common dangers of everyday life, and the man on his walk had a duty to look out. Such a sober, sane ruling grows increasingly hard to find in the tort law of most of our states. One may find a good judge in a good jurisdiction to stand up for good sense, but more often, one sees courts far too willing to find a defendant liable for consequences far removed from the foreseeable effect of his action, or even for someone else’s reckless if not deviant behavior. A legal system that redefines reasonable behavior to impose excess caution on defendants encourages careless behavior in plaintiffs. It discourages a man’s own industry and prudence in efforts to guard himself and his family from harm. Put another way, our laws have made us a nation of wards and imbeciles. They now may make us a nation of bankrupts. No theater or restaurant or school can open if liability remains so liberally construed. Under our current practice, a man will likely as not win a suit against the neighborhood café if he happens to contract COVID 19 while dining there, even though he could never prove where he contracted the virus, and even though he admits to having patronized the café of his own free choice. Some would argue that the café must protect the client from the disease much as they would protect the client from spoiled meat. Yet the difference between the two scenarios only further demonstrates the degeneration of the law. The café that serves bad food has actively harmed its customer with the very product over which it has control. A café has a responsibility for food safety in great measure because restaurants the world over have shown they can indeed remain solvent while ensuring the customer receive wholesome food. No establishment has shown, because none can show, that it can shield its customers from colds, flus, or various other similarly transmitted pathogens. Our café cannot cook its seats. Or its customers. It does not, and indeed cannot, control the ineradicable. Mitigation measures that limit seating will destroy a small café, since the vast majority of them can only generate profit near full capacity. So a man’s business must close, because he is held to an impossible standard of care, and is expected to accept any burden his patrons once had to exercise caution on their own behalf. When the owner files to make himself the ward of the state, he can thank our broken regime of tort. “I am game for his crooked jaw, and for the jaws of Death, too, Captain Ahab.” – Melville (by way of Starbuck)
Law of Necessity
“Time has proven the discernment of our ancestors… No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.” – Justice Davis, ex parte Milligan America’s strongest precedent incorporating that great English tradition of protecting subjects from the Crown comes in a Civil War-era decision, ex parte Milligan. In it, the Supreme Court forcefully argues for clear limits to the state’s invocations of necessity to justify its attempts to circumvent established legal protections. I first include much of Justice Davis’s striking opinion: These securities for personal liberty thus embodied were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that, when the original Constitution was proposed for adoption, it encountered severe opposition, and, but for the belief that it would be so amended as to embrace them, it would never have been ratified. Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority. The Supreme Court has struggled mightily with this decision. It struggled with it in ex parte Quirin, when Franklin Roosevelt demanded the Court’s imprimatur for his having forced the execution of an American citizen without fair trial. The Court invoked and struggled with the Milligan precedent again in Korematsu v. United States, when Mr. Roosevelt imprisoned American citizens en masse and without trial. The Court similarly struggled with Milligan during Bush’s so-called war against terror; at that time, Justice Scalia invoked Milligan and reminded the Court that our fathers drafted, amended, and ratified the Constitution under far more dangerous crises than we have seen in living memory. A disastrous smallpox epidemic predated the ratification by only a few years. Yellow Fever decimated American cities, killing one out of every ten Philadelphians in 1793. Dysentery was nigh unto ineradicable. Pirates, less a scourge than fifty years early, still infested the waters about Tortuga, Nassau, and Port Royal. The early republic faced at all times the twin shadows of rebellion and invasion. Yet through all that, Americans expected to enjoy the freedoms granted first by custom and then by a written constitution. Scalia insisted that any suspension of the writ of habeas corpus should come through Congress, presumably the body of government most responsible to the people. Indeed, the Constitution provides Congress with the process of suspending the great writ in Section IX of Article I: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” It is not clear to what extent Congress may suspend other constitutional protections, though any effort to do so should proceed analogically from the Suspension Clause; if Congress wishes to strip Americans’ rights in an emergency, it must do so formally, explicitly, and thereby submit itself more immediately to the angry rebuke of the electorate. An attempt to invoke necessity as a defense for tyranny should respect our common law on the subject, one inherited from centuries of precedent after the Petition of Right. By it, the state may justify its invasions of liberty only by showing such an immediate, present, local threat that the threat closes the courts and deposes the civil administration. The Supreme Court in Milligan rightly makes much of the local character of such a justification: a hostile army in Bloomington may force the courts to close there, but that does not justify the Governor’s suspending of rights in Evansville or South Bend. By analogy, a plague that affects predominantly one city may not be a real threat to any other in the nation. A city whose courts and civil administration may continue to work without real threat of being overcome should not invoke the plight of another more beleaguered city to justify the former’s suspension of constitutional guarantees. Luckily enough, Mr. Trump has for the most part restrained the Federal government from assisting the shocking behavior perpetrated by many of America’s mayors and governors, executives who have seized upon the Chinese Flu to indulge their autocratic fantasies.Mr. Trump proved me wrong when I doubted his ability to win the presidency. He proved me wrong when I doubted his dedication to appointing wise and impartial judges. He happily has proved me wrong once more. I doubted that he could resist the temptation to seize tyrannical power should the opportunity arise. But the credentialed class vocally and constantly offered if not