Tuesday, October 20, 2020

Part Two of "The Evolution of Human Progress Through the Liberal Enlightenment"

 4. ARE THERE OTHER IMPORTANT TRENDS OF HUMAN PROGRESS?  INCREASING RELIGIOSITY OR INCREASING SECULARIZATION?

In explaining some of the trends in their book, Bailey and Tupy rely on the World Values Survey, which has been collecting social survey data for 40 years in over 120 countries around the globe, under the direction of Ronald Inglehart, Christian Welzel, and others.  Bailey and Tupy cite this survey data as evidence for Trend 12--"Global Happiness Is Rising."  They write:

"University of Michigan sociologist Ronald Inglehart, founder of the WVS, reports in his book Cultural Evolution that ascending levels of subjective well-being correlate strongly with rising per capita income, rising levels of democracy and increasing social liberalization as expressed by growing tolerance for racial, sexual, and religious outgroups.  Those three factors combine to broaden the range of free choices available to people, thus enhancing happiness" (31).

Their graph showing increasing "global average happiness, 1981-2012" is taken from Inglehart's book.

If you look at Inglehart's book, you will see that he does report, as Bailey and Tupy indicate, that "rising freedom of choice" is correlated with "rising happiness."  But he also reports that "religious people tend to be happier than non-religious people," and therefore "both faith and freedom can be conducive to happiness" (Inglehart 2018, 164-172).  Oddly, Bailey and Tupy are silent about this--how increasing religiosity contributes to increasing happiness.  In fact, they say nothing about religion anywhere in their book, although they do casually refer to increasing religious toleration, as they do in the passage I just quoted.

For Trend 17--"Choosing Smaller Families"--Bailey and Tupy present the evidence that women in the richer and freer countries are choosing to have so few children that fertility has fallen below replacement levels.  A fertility rate of 2.1 children per average female is required to keep the population from shrinking--one child to replace each parent and a small fraction to cover infant and childhood mortality.  European fertility rates are generally below this replacement level.  If this were to continue, eventually there would be no Europeans left in Europe.  Bailey and Tupy regard this as a positive trend because it shows that women in these modern countries have more reproductive freedom than women in traditional societies who were forced to spend their lives bearing and caring for large numbers of children.  

Bailey and Tupy are silent, however, about the success of the alternative reproductive strategy adopted by religious people, who tend to have high fertility rates.  Inglehart reports: "Due to these demographic trends, the world as a whole now has more people with traditional religious views than ever before-and they constitute a growing proportion of the world's population" (68).  To recognize this, Bailey and Tupy could have added to their list of trends the trend towards increasing religious belief.

Perhaps they didn't do this because they agree with Inglehart's claim that modernization brings secularization--declining religious belief.  But then it seems Inglehart is contradicting himself in saying that religious belief is both increasing and declining.  Inglehart denies that there is any contradiction here by explaining:

"Rich societies are secularizing, but they contain a declining share of the world's population; while poor societies are not secularizing, and they contain a rising share of the world's population.  Thus, modernization does indeed bring a de-emphasis on religion within virtually any country that experiences it--but the percentage of the world's population for whom religion is important is rising" (68).

So it is consistent to say that we see opposing trends in different parts of the world: religion is declining in rich societies but increasing in poor societies.

That this is not exactly true, however, becomes clear as soon as one notices the differences in fertility rates within societies.  In European societies, average fertility rates are generally well below replacement levels--around 1.50.  But serious religious believers are the one European group showing fertility rates well above replacement. In Western Europe, the more religious Christians continue to have large families: for women ages 18-44 who attend a religious service more than once a week, the average fertility rate is 2.66, although it's lower in other parts of Europe (Frejka and Westoff 2008, 23).  In Israel, Ultra-Orthodox women have very high fertility rates--an average of 7.1 per woman compared to 3.1 in the general population (Malach and Cahaner 2018).  

If this trend continues, the religious people will always outnumber the irreligious people around the world, in both the poorer and the richer societies.  In the evolution of religion, it's survival of the fittest; and the religious have higher reproductive fitness than the irreligious (Sanderson 2018; Stark 2015).


To be continued . . .


REFERENCES

Frejka, Tomas, and Charles F. Westoff. 2008. "Religion, Religiousness, and Fertility in the US and in Europe." European Journal of Population 24:5-31.

Inglehart, Ronald F. 2018. Cultural Evolution: People's Motivations Are Changing, and Reshaping the World.  Cambridge: Cambridge University Press.

Malach, Gilad, and Lee Cahaner. 2018. "2018 Statistical Report on Ultra-Orthodox Society in Israel." The Israel Democracy Institute.

Sanderson, Stephen K. 2018. Religious Evolution and the Axial Age: From Shamans to Priests to Prophets. London: Bloomsbury Academic.

Stark, Rodney. 2015. The Triumph of Faith: Why the World Is More Religious Than Ever. Wilmington, DL: ISI Books.

Saturday, October 17, 2020

The Evolution of Human Progress Through the Liberal Enlightenment

 "All things considered, do you think the world is getting better or worse, or neither getting better nor worse?"

In 2016, the global public opinion survey company YouGov asked people in 17 countries to answer that question.  58% thought the world was getting worse.  30% thought it was neither getting better nor worse.  Only 11% thought the world was getting better.  Other surveys with similar questions yield the same results.  Most people around the world think things are getting worse, so that on the whole there has been no human progress.

This is especially remarkable if one considers that most of these surveys are online surveys, and the people answering such surveys are probably smart and well-educated people.  So smart people around the world think things are generally getting worse.

They are wrong.  

If one looks at the relevant factual evidence for global trends over the past few centuries, it is clear that the world is getter better, because human life is more satisfying for more people that ever before in human history.  On the whole, people are living longer, healthier, and happier lives.  Their lives are generally more peaceful--less exposed to violence--than ever before.  They have more opportunity to live their lives as they wish.  They have more chances to satisfy their natural human desires and thus to live a flourishing human life.

The reason for this is freedom.  Over the past two centuries, there has been a progressive expansion of freedom around the world.  It has been freedom at all levels: economic freedom, social freedom, political freedom, and intellectual freedom.  This has been driven by the global spread of liberal free-market democracies.

We can call this the Liberal Enlightenment. I have written about the empirical data showing human progress through the Liberal Enlightenment throughout history--in ancient Athens, for example.  But the accelerating growth in this progress has come over the past few centuries with the global spread of Lockean liberal ideas and institutions.  Some of my posts on this are hereherehereherehere, here. and here.

Much of this evidence for human progress through liberalism has been presented by Max Roser at his "Our World In Data" website, by Steven Pinker in his books--Better Angels of Our Nature and Enlightenment Now--and in the Cato Institute's Human Freedom Index.

Now we have a new book that conveniently and beautifully presents this evidence--Ronald Bailey and Marian Tupy's Ten Global Trends Every Smart Person Should Know--And Many Others You Will Find Interesting (Cato Institute).  They present 78 global trends showing that the world really is getting better.  For each of these trends, they provide a one-page vignette accompanied with a one-page chart or graph displaying the data showing the progressive trend.  In this way, they follow the example of Pinker in the deft use of the visually engaging presentation of data to support his argument for human progress through modern liberal enlightenment.  (I must complain, however, that those of us with declining eyesight in our old age have to use a magnifying glass to read this book because of its tiny font.)

Here are their Top 10 Trends:

1.  The world economy has grown more than a hundredfold since 1820.

2.  While most people throughout history have lived in extreme poverty, today less than 10% of the global population lives in poverty.

3.  We are not running out of natural resources, because resources have become more abundant relative to the demand for them.

4.  We are moving towards a "Peak Population": the world population has grown from under one billion in 1800 to about 7.7 billion today, although this rate of growth is now slowing; and demographers are now projecting that the population will peak later this century at somewhere between 8.9 and 10.9 billion, and then it will probably decline.

5.  Because of the growing supply of food around the world, there is very little famine.

6.  The forested areas of the Earth have been expanding overall, despite the deforestation in the tropics, which shows that human beings are withdrawing from the natural world.

7.  While throughout history, most human beings have lived in rural areas and engaged in agricultural labor, now most human beings live in cities; and this urban life brings economic, cultural, and environmental improvement.

8.  Over the past 200 years, there has been a steep decline in the proportion of countries under autocratic governments, along with a steep increase in the proportion under democratic governments, which confirms Francis Fukuyama's claim that liberal democracy has become the final form of government for humanity.

9.  Over the past half century, the number of interstate wars has declined; and this seems to be because capitalist democracies are more peace-loving than other regimes.

10. Because of increased wealth and technological progress, the deaths from natural disasters--such as earthquakes, floods, storms, wildfires, and epidemics--have declined dramatically.   

Looking at such claims, a critical reader of this book might ask at least six questions.  (1) Can Bailey and Tupy explain why so many smart people think the world is getting worse?  (2) How do they explain the negative trends that apparently show historical decline?  (3) How persuasive is their evidence for these 78 progressive trends?  (4) Have they ignored some important trends--such as religious toleration and secularization?  (5) If they are right about this human progress, have they explained its ultimate cause?  (6) Is this modern human progress part of a cosmic evolution of progress?  I will take up each of these questions.


(1) WHY DO SO MANY OF US THINK THE WORLD IS IN DECLINE?

The answer, Bailey and Tupy suggest, is that the human mind suffers from some psychological glitches that mislead us so that we pay more attention to what's negative in our lives than what's positive.  We are surrounded by the journalistic reporting of news, and news is generally bad news, because that's what grabs our attention.  

So, for example, acts of violence--murders, terrorist attacks, killing in war--are dramatic news; but the fact that the rate of killing through homicide and war has been declining is not news.  This is what behavioral scientists Amos Tversky and Daniel Kahneman called the "availability bias": shocking events come easily to mind, but that there has been a slow decline in such shocking events does not catch our attention.  

When Bailey and Tupy report that there has been a slow but steep decline over the past one hundred years in the rate of deaths from infectious disease, many of us will think: But what about COVID-19?  The disturbing harm from this pandemic today so fills our minds that it's hard to believe the historical data showing the general progressive trend towards protecting us from infectious diseases.

It is also possible that we have an evolved instinct for negativity.  If you're an ancient hunter-gatherer wondering whether that rustle in the grass is caused by a lion or the wind, it's best to assume it's a lion.  So perhaps we have inherited from our evolutionary ancestors a propensity to see threats everywhere.

Moreover, Bailey and Tupy observe, progress tends to mask itself, because as we become better at solving our problems, our expectations are raised, and we are frustrated by any problems that are not yet solved.  So, for example, it's hard to feel good when Bailey and Tupy report that there has been a big decline in hunger and malnutrition around the world, because we worry about the many people who are still hungry and malnourished.


(2) WHAT ABOUT THE NEGATIVE TRENDS?

The 78 global trends that Bailey and Tupy present in their book are all positive trends that show human progress towards a better life.  But of course they have to admit that some global trends are negative.  And so we must wonder whether they are justified in not giving prominence to those negative trends, and whether recognizing those negative trends negates their story of progress.

They respond to this concern by quoting Steven Pinker: "It's essential to realize that progress does not mean that everything gets better for everyone, everywhere, all the time.  That would be a miracle, that wouldn't be progress" (1). So does this imply that true progress means that most things get better for most people, most places, most of the time?  Must the positive trends outweigh or outnumber the negative trends?  Or must we see evidence that the positive trends are likely over time to eliminate or slow down the negative trends?

Bailey and Tupy mention seven examples of global negative trends.  Manmade climate change from increasing atmospheric concentrations of carbon dioxide is creating serious problems for human beings in this century.  Increasing plastic debris in the oceans is harmful to the environment.  Many wildlife populations are declining.  The areas of tropical rainforest are shrinking.  Many people around the world are malnourished.  Many are dying in violent conflicts.  And we all know about the global coronavirus pandemic.

But then they try to show how some of their 78 positive trends can alleviate these negative trends.  For example, while there has been no reduction in the absolute quantities of carbon dioxide emissions, they observe, there has been a decline in emissions per dollar, which they call "decarbonizing the economy," because there's an economic incentive for businesses to reduce their energy costs (115-16).  And in the United States, over the past 50 years, although carbon dioxide emissions have increased by 22%, the total emission of six principal pollutants dropped by 74%; and during this period, the gross domestic product increased 275%.  This shows that "richer becomes cleaner" (169-70).

Another positive trends is the accelerating speed of vaccine development (77-78).  It took thousands of years before scientists developed vaccines for polio, smallpox, cholera, typhoid, and measles.  But the vaccine for Ebola was developed only 43 years after the discovery of the virus.  And human trials for a COVID-19 vaccine began only four months after the virus was discovered.  Even if a COVID-19 vaccine is not discovered, Bailey and Tupy suggest, other treatments are likely to be developed quickly to end the pandemic.

As long as the positive trends outweigh the negative trends, we can see that on the whole the arc of history bends towards progress.


(3)  ASSESSING THE EVIDENCE FOR THE POSITIVE TRENDS

For each of their 78 trends, Bailey and Tupy provide a chart or graph that displays the empirical evidence for that trend.  The evidence comes from databases compiled by various scholars and reputable agencies--such the World Bank, the United Nations, and the Environmental Protection Agency.

I think that most readers will find this evidence to be reliable in most cases.  But I did see a few places in the book where the evidence looks dubious.

For two of their trends--Trend 1 ("The Great Enrichment") and Trend 13 ("Global Income Is Rising")--Bailey and Tupy rely on the database for the statistics of economic history compiled by Angus Maddison.  Maddison (1926-2010) was a scholar of quantitative macroeconomic history who spent his life collecting and analyzing statistical estimates for gross domestic product (GDP) and population for countries around the world and throughout history from ancient Rome to the present.  When he died in 2010, his database was preserved and extended by people at the "Maddison Project" at the University of Groningen.

Using Maddison's data, Bailey and Tupy were able to design graphs showing the growth in the total world economy and in global GDP per capita from year 1 AD to the present.  These are two of the most dramatic hockey-stick graphs in the book.  Global GDP per capita starts in year 1 at $800 (as measured in 2011 US dollars), and the line stays flat until the year 1800, when it rises to $1,140 per person per year, then to $2,180 in 1900, and finally to $13,172 in 2008.  Bailey and Tupy can point to this as showing that between 1800 and 1900, "humanity made over twice as much progress in 100 years as it did in the previous 1800 years."  This also shows that "the real standard of living rose by more than tenfold between 1800 and 2008" (33).

Any careful reader will ask how Maddison came up with these numbers.  By the middle of the 19th century, modern statistical offices and censuses were collecting statistics for the economies of Europe and North America.  But for the thousands of years of economic history prior to 1800, it's hard to find documented economic statistics.

If one goes to Maddison's books, one can see that his estimates for GDP per capita in the year 1 AD in 20 countries as measured in 1990 international US dollars ranges mostly from $400 to $450.  For example, for Sweden, Mexico, and North America, it's $400; for Belgium and Portugal, it's $450 (Maddison 2007, 382).  One looks in vain for any explanation as to how he decided on these numbers.  How does he know that in 1 AD the North American Indians were living on the equivalent of $400 per person per year?  

Maddison says: "Before 1500, the element of conjecture in the estimates is very large indeed" (Maddison 2001, 259).  He uses the words "conjecture" and "assumption" a lot.  He assumes that prior to the year 1000, most people in most countries lived close to subsistence levels of income, which he sets at $400 per capita per year.  But he does not explain how he arrived at this $400 number.  

Some of his colleagues at the University of Groningen have said that "his strategy was to produce numbers even if a solid basis for them did not always exist" (Bolt and van Zanden 2014, 628).  They correct Maddison's estimate for subsistence by lowering it to $250-$300, but they don't explain how they arrived at this new number.

Economic historian Gregory Clark identifies this "element of conjecture" in Maddison's numbers as the problem at the core of the whole Maddison Project.  "All the numbers Maddison estimates for the years before 1820 are fictions, as real as the relics peddled around Europe in the Middle Ages" (Clark 2009, 1156).

For this reason, I think Bailey and Tupy are mistaken in relying on Maddison's fictitious database for the economic history prior to 1820.  Remarkably, they are not alone in this.  Many economists and economic historians have used Maddison's data for developing and testing theories of economic development while remaining silent about the "element of conjecture" in his numbers.

There are a few other points where Bailey and Tupy make conjectural projections about future trends that cannot be decisively confirmed by empirical evidence.  Two examples of this are "Peak Population" (Trend 4) and "Peak Farmland" (Trend 48).

The demographic data show that there has been a stunning growth in world population over the past 200 years, so that now the world population is around 7.7 billion.  The demographic data also show that over the past 75 years the growth in population has continued, but the rate of growth has slowed, because as people become wealthy and well-educated, their fertility rate tends to decline.  As women gain social and economic freedom, they choose to have fewer children, so that they can invest resources in those children, allowing them to flourish in a modern economy.  This is called the "demographic transition," and I have written about it (here).

This demographic database provides empirical evidence for the growth of human population--first rapid and then slowing--up to the present.  But of course it does not allow us to precisely predict the future.  If there is going to be a "peak population," as Bailey and Tupy claim, identifying it requires a speculative projection that cannot be settled by empirical evidence.  The United Nations' World Population Prospects 2019 projects that the world population will reach 10.9 billion in the year 2100.  Bailey and Tupy say that this is too high, because it does not put enough weight on the demographic transition that will lead more and more women to choose to have few children, which is likely to keep the peak population well below 10 billion; and after that peak, the world population will decline.  This seems plausible to me, but this can only be a conjectural projection that cannot be confirmed by present evidence.

Similarly, their "Peak Farmland" trend is a speculative prediction that has some plausibility based on some evidence, but the evidence cannot precisely confirm the prediction.  Here's the figure used by Bailey and Tupy that presents the data showing the gradual rise of global arable land from 1961 to 2009, followed by projections of a drop of global arable land to 2060.



This figure comes from Jesse Ausubel and his colleagues (Ausubel 2014, 2015; Ausubel et al. 2012).  Ausubel is often identified with "ecomodernism"--the idea that the best way to reverse environmental degradation and restore natural wildness is to liberate technological innovation in response to free-market incentives to solve environmental problems.  So, for example, he foresees that advances in farming technology along with changes in consumer tastes and a slowing growth in human population could bring about what he calls Peak Farmland, which would allow for a large global restoration of land to Nature.

Compared with what they were doing 40 years ago, American potato farmers grow about 40% more tons of potatoes, while planting about 20% fewer acres.  Similarly, American corn farmers now grow about five times as many bushels as they did in 1940 on the same land.  Because of the technological ingenuity of farmers, less land can produce more calories, so that agricultural food production can increase while farming acreage decreases.  At the same time, there has been rising demand for chicken and corn and falling demand for potatoes and beef.  Depending on how these and other trends play out, it is possible that over the next 40 years we could see nearly 988 million acres restored to nature, which is twice the size of the United States east of the Mississippi.

That's the optimistic projection in the figure above.  But while this is based on the empirical evidence for some trends in recent history, this projection for the future is conjectural.


To be continued . . .


REFERENCES

Ausubel, Jesse H. 2014. "Peak Farmland and Potatoes." Plenary address to the 2014 Potato Business Summit of the United Potato Growers of America, San Antonio, 8 January.

Ausubel, Jesse H. 2015. "The Return to Nature: How Technology Liberates the Environment." Breakthrough Journal 5 (Summer).

Ausubel, Jesse H., Iddo K. Wernick, and Paul E. Waggoner. 2012. "Peak Farmland and the Prospect for Land Sparing." Population and Development Review 38 (Supplement): 221-242.

Bailey, Ronald, and Marian L. Tupy. 2020. Ten Global Trends Every Smart Person Should Know, and Many Others You Will Find Interesting. Washington, DC: Cato Institute.

Bolt, Jutta, and Jan Luiten van Zanden. 2014. "The Maddison Project: Collaborative Research on Historical National Accounts."  The Economic History Review 67 (3): 627-651.

Clark, Gregory. 2009. Review of Angus Maddison, Contours of the World Economy, 1-2030 AD.  Journal of Economic History 69: 1156-1161.

Maddison, Angus. 2001. The World Economy: A Millennial Perspective. Paris: Organization for Economic Cooperation and Development.

Maddison, Angus. 2007. Contours of the World Economy, 1-2030 AD: Essays in Macro-Economic History. Oxford: Oxford University Press.

Sunday, October 11, 2020

The Michigan Supreme Court Declares Whitmer's Lockdown Orders Unconstitutional--Reviving the Lockean Nondelegation Doctrine

In April, I wrote a series of posts (herehere, and here) arguing that Michigan Governor Gretchen Whitmer's lockdown orders were unconstitutional, because she was acting as a tyrant in exercising arbitrary absolute power in suspending the liberty of Michigan citizens.  Last week, the Michigan Supreme Court reached the same conclusion, and in doing so, the Court joined a judicial movement for reviving the Lockean doctrine of nondelegation--that the lawmaking power of the legislature cannot rightly be delegated to the executive, because the combination of lawmaking and executive powers in one person is tyranny.  The Court quoted Montesquieu: "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty."  The Wall Street Journal editorial on this decision began by declaring: "Michigan's one-woman rule is no more."

Two weeks ago, I wrote about the federal court decision striking down Governor Tom Wolf's lockdown in Pennsylvania as unconstitutional.  So we are seeing a growing judicial scrutiny of the constitutionality of the COVID-19 lockdowns based on rule by executive decrees that violate the principles of separation of powers and the nondelegation doctrine.

To understand what is going on here, I will move through three steps by examining the nondelegation doctrine in the Michigan Constitution, in the U.S. Constitution, and in John Locke's Second Treatise


NONDELEGATION IN THE MICHIGAN CONSTITUTION

On March 10, in response to the COVID-19 pandemic, Governor Whitmer declared a "state of emergency" under two Michigan laws--the Emergency Powers of the Governor Act of 1945 (the EPGA) and the Emergency Management Act of 1976 (the EMA).  The EPGA says that the Governor may proclaim a state of emergency when there is a public emergency that threatens "public safety."  "After making the proclamation or declaration," the law states, "the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control."  These orders, rules, and regulations remain in effect until the governor declares that the emergency no longer exists.

The EMA allows the governor to declare a "state of disaster" or "state of emergency."  But after 28 days, the governor must declare that the state of disaster or emergency is terminated unless a resolution of both houses of the legislature has approved the governor's request for an extension of the state of disaster or emergency for a specific number of days.

On April 1, Governor Whitmer requested that the Legislature extend her declarations of disaster and emergency for 70 days.  The Legislature responded by giving her an extension to April 30.  On April 30, she issued an executive order terminating her declaration of disaster and emergency under the EMA.  But she then immediately declared that there was still a state of disaster and emergency under the EPGA, which extended her lockdown of the state indefinitely.

Some Michigan healthcare providers filed a lawsuit in a federal district court charging that Governor Whitmer did not have the legal authority to prohibit them from performing "nonessential" procedures--in particular, a patient had been unable to undergo a knee-replacement surgery that had been scheduled for the end of March.  The federal district court certified two questions for the Michigan Supreme Court to answer.  Did the EPGA and the EMA give Governor Whitmer the authority to continue her lockdown orders?  Did the EPGA or the EMA violate the clause in the Michigan Constitution requiring the separation of powers and prohibiting the legislature from delegating its lawmaking powers to the governor?

In answering the first question, the seven Supreme Court judges unanimously decided that under the EMA Whitmer did not have the legal authority to extend her emergency declaration beyond April 30, because the Legislature had refused to extend her declaration.

In answering the second question, the majority of the court--four of the seven--ruled that the EPGA was unconstitutional because it violated the separation of powers in the Michigan Constitution of 1963, particularly Article 3, section 2: "The powers of government are divided into three branches: legislative, executive, and judicial.  No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution."  

Assuming emergency powers to protect the public safety or public health belongs to the "police power" of the Legislature.  But the EPGA allows the governor to exercise that legislative police power free from any constraints by the Legislature, which means that the governor can combine both executive and legislative powers, and this is the arbitrary, absolute rule of one person over all the citizens.  This violation of the separation of powers means the suspension of the constitutional liberties of the people.

Justice Stephen Markman wrote in his majority opinion that Governor Whitmer's rule by executive decrees in imposing the COVID-19 lockdown on Michigan dramatically illustrated the danger in allowing a governor to set aside the constitutional system of separation of powers with checks and balances:

". . . no individual in the history of this state has ever been vested with as much concentrated and standardless power to regulate the lives of our people, free of the inconvenience of having to act in accord with other accountable branches of government and free of any need to subject her decisions to the ordinary interplay of our system of separated powers and checks and balances, with even the ending date of this exercise of power reposing exclusively in her own judgment and discretion" (47).

Justice Bridget McCormack wrote for the three dissenters who argued that under the precedents set by the Michigan courts and the U.S. Supreme Court, the EPGA could not be struck down as a violation of the nondelegation doctrine.  McCormack pointed out that the U.S. Supreme Court had invalidated a statute under the nondelegation doctrine in only two cases, both of them in 1935,  Since then, the U.S. Supreme Court has repeatedly upheld very broad congressional delegations of legislative powers to the executive branch and administrative agencies.  The only requirement has been that the legislature must provide an "intelligible principle" to guide the executive decision maker, and this "intelligible principle" standard has been easily satisfied.

"Until today," McCormack observed, "a delegation was invalid only when there were no standards" (7).  And "the bar for what standards qualify as constitutional is low."  McCormack wrote:

"The delegation in the EPGA plainly has standards that surmount that bar.  For the Governor to invoke the EPGA plainly has standards that surmount that bar.  For the Governor to invoke the EPGA, her actions must be 'reasonable' and 'necessary,' they must 'protect life and property' or 'bring the emergency situation . . . under control,' and they may be taken only at a time of 'public emergency' or 'reasonable apprehension of immediate danger' when 'public safety is imperiled.' . . . Those are standards.  Reasonable people might disagree about their rigor, but this Court and the United States Supreme Court have consistently held similar standards constitutional."

". . . The particular standards in the EPGA are as reasonably precise as the statute's subject matter permits.  Given the unpredictability and range of emergencies the Legislature identified in the statute, it is difficult to see how it could be more specific" (7).

In response, Justice Markman argues that the EPGA's delegation of legislative powers to the governor is too expansive, too indefinite in its duration, and too inadequate in its standards to sustain this delegation of powers to Governor Whitman.  It's too expansive, because it allows the Governor to suspend all of the constitutional liberties of the people in exercising arbitrary, absolute power over the entire social and economic life of Michigan.  It's too indefinite in its duration, because the law sets no time limits on the Governor's emergency powers: she is free to exercise those powers for as long as she wants.  It's too inadequate in its standards, because the standards set by the words "reasonable" and "necessary" are so vague that they supply no genuine guidance to the Governor in the exercise of her authority and no constraints on her actions.

Markman observes:

". . . A person driving on the road instead of staying inside at home, for example, may fairly be understood as posing a threat to 'life' and 'property' because there is perpetual risk that he or she will be involved in an automobile accident.  Thus, the Governor under the EPGA may find an order prohibiting a person from driving is warranted merely on the basis of this rationale.  The contagions, accidents, misfortunes, risks, and acts of God, ordinarily and inevitably associated with the human condition and with our everyday social experiences, are simply too various for this standard to supply any meaningful limitation upon the exercise of the delegated power" (33).

Both sides in this debate on the Michigan Supreme Court recognize that a similar debate is taking place on the U.S. Supreme Court over the constitutional status and meaning of the nondelegation doctrine.  One side wants to stay with the low standard for nondelegation that has been in force for 85 years--a standard so low as to be toothless.  The other side wants to enforce a higher standard--like that stated in 1935--that would seriously constrain legislative delegations of lawmaking power.

This constitutional debate is ultimately a philosophical debate over whether the separation of powers with the rule of law can be reconciled with the need for lawless executive prerogative in times of emergency or in response to other contingencies that cannot be governed by general laws prescribed by the legislature.


NONDELEGATION IN THE U.S. CONSTITUTION

 Unlike the Michigan Constitution, the U.S. Constitution does not have a section explicitly stating that there must be a separation of powers between the three branches of government, so that officers in one branch cannot exercise the powers of those in the other two branches.  The Michigan Constitution follows the example set by the Massachusetts Constitution of 1780, which was drafted by John Adams.  In Article XXX of the Declaration of Rights--the first part of the Massachusetts Constitution--it is declared:

"In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; The executive shall never exercise the legislative and judicial powers, or either of them; The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."

Notice that Adams states the "end" or purpose of such a strict separation of powers--to ensure that there is a government of laws and not of men.  If any one person or group of people could exercise the lawmaking, executive, and judicial powers of government, they would have unlimited power to rule over the country as they pleased; and such a power would inevitably be abused for tyrannical purposes, because human beings are naturally inclined to use unlimited power to dominate over their fellow human beings.  A republic is the best form of government, John Adams argued in Thoughts on Government, because it is "an empire of laws, and not of men," which is secured by the popular control of government, but also by the separation of powers.  This secures the impartial rule of law because no one person or group of people has the power to make, execute, and judge the law so that it serves their selfish interests rather than the common good.

When Governor Whitmer imposed her COVID-19 lockdown orders on Michigan, she legislated her own orders, executed those orders, and judged the application of those order to particular cases.  The Michigan Supreme Court quoted James Madison in Federalist number 47: "The accumulation of all powers, legislative, executive, and judiciary, in the same branch, whether of one, a few, or many . . . may justly be pronounced the very definition of tyranny."  If so, then Governor Whitman was acting as a tyrant.

Still, however, we might wonder whether the U.S. Constitution really does enforce a strict separation of powers, since it does not have the explicit language of the Michigan Constitution.  In 1789, James Madison proposed this amendment to the Constitution to be included in the Bill of Rights:

"The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments."

When Madison introduced this amendment in the First Congress, congressman Roger Sherman objected, saying that the amendment was "altogether unnecessary, inasmuch as the Constitution assigned the business of each branch of the Government to a separate department."  Madison agreed, he "supposed the people would be gratified with the amendment, as it was admitted that the powers ought to be separate and distinct; it might also tend to an explanation of some doubts that might arise respecting the construction of the Constitution."  The House of Representatives approved this amendment, but the Senate struck it down.  The majority of the Congress might have agreed that while the amendment was unnecessary, it would do no harm.  The majority in the Senate might have thought that if it was unnecessary, it should not be added to the Constitution.

This amendment was unnecessary insofar as the Constitution's "vesting" clauses imply a separation of powers and a nondelegation doctrine.  Article 1 begins: "All legislative Powers herein granted shall be vested in a Congress of the United States."  Article 2 begins: "The executive Power shall be vested in a President of the United States of America."  Article 3 begins: "The judicial Power of the United States shall be vested in one supreme Court."  By implication, no one in one of these branches can exercise the powers "vested" in the other two; and the Congress cannot delegate to the other branches the legislative powers "vested" in the Congress.  Notice that this does allow for some constitutional mixing of powers: for example, the President is "vested" with a power to veto legislation of the Congress, which involves the President in the legislative process of lawmaking.

Before the 1930s, the congressional grants of authority to the executive branch were so limited that they could be easily upheld by the Supreme Court as conforming to the nondelegation doctrine.  But then President Franklin Roosevelt's New Deal programs expanding the role of the federal government in the American economy seemed to require broad congressional delegations of power that provoked the Court into striking down some statutes as violating the separation of powers.  The Court did this twice in 1935, striking down provisions of the 1933 National Industrial Recovery Act, which was a crucial element of Roosevelt's New Deal policies.

In A. L. A. Schechter Poultry Corp. v. United States, the court reviewed a congressional statute that gave the President the power to approve "codes of fair competition" for slaughterhouses and other industries.  But Congress provided no guidelines for what counted as "fair competition."  The President adopted an elaborate code of fair competition that had been written by some New York poultry butchers, and some of their competitors charged that this code was written to serve the self-interest of those who wrote it.

One of the rules in this code made it a federal crime for butchers to allow customers to select the chickens they wanted to buy.  The Schechter Poultry Company was a group of kosher butchers who found it hard to follow these rules.  They were convicted of selling an "unfit" chicken and other charges.  When this case was brought before the Supreme Court, the statute allowing the President to do this was struck down as an unconstitutional delegation of law-making power.  Writing for a unanimous court, Justice Benjamin Cardozo complained that "anything that Congress may do within the limits of the commerce clause for the betterment of business could be done by the President . . . by calling it a code.  This is delegation running riot."

In the second case in 1935--Panama Refining Co. v. Ryan--the Court struck down a statute that authorized the President to prohibit the transportation of petroleum produced or withdrawn from storage exceeding the quotas set for each state.  The Court decided that since Congress "has declared no policy, has established no standard, has laid down no rule," this was an unconstitutional grant of legislative power to the President, so that he could act as a lawmaker.

After those two cases, the Court never again declared any statute in violation of the nondelegation doctrine, even as the Congress has authorized an administrative state, in which administrative agencies in the executive branch have combined lawmaking, executive, and judicial powers: administrators make their own rules, enforce those rules, and adjudicate cases under those rules.

We must wonder whether administrative law is unlawful (as suggested in the title of a book by Philip Hamburger).  If administrators in the executive branch of government can exercise binding legislative and judicial powers that are outside and above the legislative power of the Congress and the judicial power of the courts, is this an exercise of absolute power?  Didn't Anglo-American constitutional law originate to defeat such claims of absolute power by monarchs?  If so, could it be argued that the administrative state is not just unconstitutional but anti-constitutional?

Some American conservative judges (those affiliated with The Federalist Society) have answered yes to those questions, and they have proposed constitutional limits on the administrative state grounded in a revival of the nondelegation doctrine as it was interpreted in the Schechter and Panama Refining decisions.  Last year, in the Supreme Court case of Gundy v. U.S., five of the Supreme Court justices--Roberts, Thomas, Alito, Gorsuch, and Cavanaugh--took this position.  If Trump's nominee--Amy Coney Barrett--is confirmed, she could become the sixth judge for this group.  But even without her, the five on the Court now would be a majority for any future case on nondelegation.

The four Michigan Supreme Court justices who struck down the Emergency Powers of the Governor Act cited Gorsuch's dissenting opinion in the Gundy case as evidence that the U. S. Supreme Court was moving towards reviving the nondelegation doctrine.

The issue in the Gundy case was whether the Sex Offender Registration and Notification Act (SORNA) violated the nondelegation doctrine.  SORNA gave the U. S. Attorney General the authority to "specify the applicability" of the mandatory registration requirements for sex offenders convicted before the enactment of SORNA.  The law provided no clear policy to guide the Attorney General in the exercise of his discretionary authority.  Nevertheless, the majority on the Court upheld the constitutionality of the law. 

Because of the vacancy created by Justice Scalia's death, there were only 8 justices on the Court, and Justice Cavanaugh had been confirmed too late to participate in deciding this case.  So four judges (Kagan, Ginsburg, Breyer, and Alito) constituted a majority for upholding SORNA as constitutional, although Alito indicated that he would be willing in a different case to enforce a higher standard for nondelegation.  Gorsuch wrote a dissenting opinion, in which Roberts and Thomas joined.  Kavanaugh said publicly that if he could have participated in this decision, he would have concurred with Gorsuch's opinion.

Gorsuch's opinion summarizes all of the reasoning developed by originalist legal scholars for restoring the nondelegation doctrine as a serious limit on the Congress's authority to delegate its legislative powers to the President and to administrators in the executive branch.  "If the Congress could pass off its legislative power to the executive branch," Gorsuch observes, "legislation would risk becoming nothing more than the will of the current President" (8).  This suggests that although he was appointed by Donald Trump, Gorsuch would not agree with Trump's rule by executive decrees and Trump's claim that the Constitution "allows me to do whatever I want to do."

Similarly, Gorsuch denies the constitutionality of the Congress delegating its lawmaking powers to the Attorney General in SORNA.  And in doing this, he echoes the language of Cardozo's Schecter Poultry opinion, as in the last two sentences of Gorsuch's opinion: "while Congress can enlist considerable assistance from the executive branch in filling up details and finding facts, it may never hand off to the nation's chief prosecutor the power to write his own criminal code.  That 'is delegation running riot'" (33).

Gorsuch recognized that the first statement of the nondelegation doctrine was in Locke's Second Treatise, particularly in section 141, which he quoted:

"The legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others.  The people alone can appoint the form of the commonwealth, which is by constituting the legislative, and appointing in whose hands that shall be.  And when the people have said we will submit to rules, and be governed by laws made by such men, and in such forms, nobody else can say other men shall make laws for them; nor can the people be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them."

We must wonder, however, whether this strict separation of powers can be enforced in circumstances where we might need to have chief executives and administrators exercise broad discretionary powers.  After all, Locke thought that any effective executive must exercise "prerogative," which is the power "to act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it" (ST, sec. 160).  Is it necessary to allow this, particularly in times of emergency--such as war or a pandemic?  This has been the claim made by governors like Whitmer who have asserted the emergency power to impose lockdown orders to protect the public health.  I have taken up some of these issues in Political Questions, 250-262, and in a previous post.


Saturday, October 03, 2020

How Trump Defeats the Pandemic

Since Trump's announcement yesterday that he has been infected by the coronavirus, most of the popular reaction has assumed that this is disastrous for his campaign for two reasons.  First, it makes him look foolish for playing down the danger from the pandemic and for mocking people who wear masks.  Second, it brings the pandemic back into the center of the presidential campaign debate, which favors Biden because Trump's handling of the pandemic does not look good.

But consider Trump's rhetorical psychology.  He must boast that he always wins at everything he does.  He never loses.  So he must turn every failure into a success.  He is certainly not going to admit that his sickness shows his foolishness.

Consider then how Trump could turn this all to his rhetorical advantage.  Sure, the virus could kill him, and that would be the dramatic end to his presidency.  But the odds are against that.  Even older obese men like Trump have maybe somewhere around a 90-95% chance of surviving the viral infection.  So if he survives, as he probably will, imagine what he could say.

I've done it.  I have defeated the virus.  I decided that I needed to expose myself to the virus, so that once infected, I could show how to overcome it.  Although we don't yet have a vaccine, there are lots of experimental treatments to mitigate the infection.  I have tried all of them.  And even though I belong to a group that is most vulnerable to the virus, I am strong: I fought it and won.

So, you see, I have just proven--by my self-sacrificial fight with the virus--that the pandemic is no longer a threat to our lives.  As I have always told you, I alone can fix it.

Now that I have defeated the pandemic, we can Make America Great Again!

There are some remarkable similarities--but also differences--here with Woodrow Wilson and the flu pandemic of 1918-1920, which killed perhaps 50 million people around the world and 675,000 in the U.S., making it much deadlier than the coronavirus pandemic today.

As president, Wilson did almost nothing to control the pandemic.  He did not even speak about it in public.  Public health policies were managed mostly by state and local governments.

In April of 1919, Wilson was at the Paris Peace Conference to negotiate peace terms for the end of the World War.  He became infected with the flu virus.  He was 63 years old and in bad health.  He became deathly ill, but he survived.  Even in this deadliest pandemic in human history, most of the people infected survived.  Unlike Trump's illness, Wilson's was kept secret.  A few months later, Wilson suffered a stroke that incapacitated him.  He lived on until his death in 1924.

I have written about the flu pandemic of 1918-1920 as compared with the present coronavirus pandemic here, and here.  One crucial difference is that in the flu pandemic there was no governmentally mandated lockdown of economic and social activity like that recommended by Trump in March.

Monday, September 28, 2020

The Rhetorical Myth of Trump the Self-Made Billionaire: The New York Times Does It Again

 Earlier this year, I wrote a post applying Aristotle's Rhetoric to Donald Trump's campaign rhetoric and showed that Trump makes the argument from the character of the speaker in claiming that the prudence of Trump as a wildly successful businessman makes him the best man to be president.  This argument can be put into a syllogism:

Major premise: Because of stupid politicians, America no longer wins; and America will not win again until a successful businessman who knows how to win is elected president.

Minor premise:  Donald Trump is unique in his business success and his prudence in knowing how to win, because he is a self-made multi-billionaire.

Conclusion:  Therefore, Americans need to elect Trump president.

I challenged the minor premise by pointing to the evidence that Trump's business career shows many failures from his imprudent decisions, that he was saved from ruin by his father's life-long transfer of money to him, and so he is not the self-made billionaire that he claims to be.

As I indicated in that previous post, the best evidence for this comes in an investigative report published in The New York Times on October 2, 2018, which showed that Fred Trump started transferring money to Donald from the time he was 3 years old, and that Fred bailed out Donald every time that he faced financial ruin.  (We now know that Mary Trump--Donald's niece--was one of the primary sources for the financial records collected by the New York Times reporters.  I have written about Mary Trump's book.)

Now, two years later, The New York Times has done it again.  Yesterday, they published another long investigative article that reveals "the hollowness, but also the wizardry, behind the self-made-billionaire image--honed through his star turn on 'The Apprentice'--that helped propel him to the White House and that still undergirds the loyalty of many in his base."  

Amazingly, these reporters have over 20 years of Trump's federal tax fillings, which show that since the death of his father in 1999, he has continued his history of business failure.  In many years, he lost more money that almost any other individual taxpayer in the United States.  By claiming these losses on his federal tax returns, he has avoided paying any federal taxes in 10 of the last 15 years.  And when he has paid federal taxes, his payments have often been low: in the year that he won the presidency, he paid $750 in federal income taxes.

In June of 2015, when he announced his presidential candidacy, he had lost over $100 million in the previous two years.  It might be true, as many people have suspected, that he decided to run only to generate publicity that might promote the economic value of the Trump brand.

Now Trump is facing the prospect of another bankruptcy, and this time it would be a personal bankruptcy.  He is personally responsible for loans and other debts totally $421 million, which will come due within four years.  He is also being audited for a $72.9 million federal tax refund that he received in 2010.  If he has to pay that back with interest, that would be over $100 million. 

If Trump is reelected, we could have a sitting president in bankruptcy proceedings and with banks foreclosing on his properties.  That would be personally humiliating for Trump.  But even worse for the country would be the national debt crisis that has been deepened during Trump's presidency.  During his campaign in 2016, he warned about the coming debt crisis as the national debt was coming close to $20 trillion.  He promised that as president, he would balance the federal budget and pay off the national debt.  But since his election, he has said nothing about this promise.  Now the national federal debt is close to $27 trillion, which is more than the entire GDP of the U.S. economy for a year!

It is disturbing that in this election year, almost no one is speaking about the looming threat of a debt crisis.  The only candidates saying anything about this are the Libertarian Party candidates--Jo Jorgenson and Spike Cohen.

Friday, September 25, 2020

The COVID-19 Lockdown in Pennsylvania Is Unconstitutional--A Federal Judge's Ruling

Having argued in April (here and here) that the COVID-19 lockdowns are unconstitutional, I am pleased to see that a federal judge in Pennsylvania--William S. Strickman IV--agrees with me.

On September 14th, Judge Strickman issued his ruling in the case of Butler County v. Wolf in the U.S. District Court for the Western District of Pennsylvania.  Strickman was appointed to the federal bench by Donald Trump and confirmed by the Senate just a year ago.  

In this case, the plaintiffs were three groups of people in Pennsylvania--some politicians, some county governments, and some businesspeople--who challenged Governor Tom Wolf's orders for a COVID-19 lockdown as being unconstitutional in violating the First and Fourteenth Amendments.  Strickman ruled for the plaintiffs in striking down the governor's lockdown as unconstitutional.  

On September 23, Wolf filed his appeal of this case, which now moves to the U.S. District Court of Appeals for the Third District.  This would be a good case to reach the U.S. Supreme Court.

On March 16, Trump recommended a lockdown of American economic and social life by announcing "The President's Coronavirus Guidelines for America."  The first line of those guidelines was "Listen to and follow the directions of your State and Local Authorities."  It was understood that neither the President nor the national government generally had the constitutional power to impose the lockdown that Trump was recommending.  It was believed that the state governors had that power.  

And, indeed, three days later--March 19--the governors of California, New York, and Pennsylvania issued executive orders closing down many sectors of their state economies.  Governor Wolf announced the closure in Pennsylvania of all "non-life-sustaining" businesses.  Four days later--March 23--Governor Wolf issued a "stay-at-home" order that in effect put most of the citizens of Pennsylvania under house arrest.  Eventually, 43 of the state governors issued some version of these lockdown orders.

On May 7, the plaintiffs in this case filed their suit against Governor Wolf and Pennsylvania Secretary of Health Rachel Levine as having acted unconstitutionally in three parts of their lockdown orders--restrictions on the size of gatherings, the order closing "non-life-sustaining" businesses, and the ordering of Pennsylvanians to stay-at-home.  They made three claims.  First, that the restrictions on gatherings violated the right of assembly protected by the First Amendment.  Second, that the business closure and stay-at-home orders violated the Due Process clause of the Fourteenth Amendment by depriving people of their life, liberty, or property without due process of law.  Third, that the business closure distinction between "life-sustaining" and "non-life-sustaining" businesses violated the Equal Protection Clause of the Fourteenth Amendment.  In his final opinion of September 14, Judge Strickman ruled in favor of all three claims made by the plaintiffs as to the unconstitutionality of Governor Wolf's lockdown in Pennsylvania.  

Beginning with the first state lockdowns in March, there has been an ongoing debate in the federal courts and among some law professors about the constitutionality of the lockdowns.  Since Strickman's thinking was influenced by that debate, I will briefly review some of the arguments in that debate before turning to Strickman's opinion.


MUST THE COURTS ALLOW SUSPENSION OF CONSTITUTIONAL RIGHTS IN AN EMERGENCY?

Strickman quotes from an article by Lindsay Wiley and Stephen Vladeck, which was one of the first law review articles on the legal debate over the lockdowns (see pp. 16-17 of Strickman's opinion).  Wiley and Vladeck say that there is one central question in this debate: "Should constitutional constraints on government action be suspended in times of emergency (because emergencies are 'extraconstitutional'), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?" (Wiley and Vladeck 2020, 180).  

They defend the latter position--that the courts can and should protect constitutional rights even in times of emergency.  In making their case, a lot depends on their interpretation of the Supreme Court's decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905), which has been widely cited by federal judges upholding the suspension of constitutional rights in the pandemic emergency.

In 1902, Massachusetts was only one of 11 states that had compulsory vaccination laws.  In response to a smallpox epidemic in Cambridge, Massachusetts, the city's Board of Health adopted a regulation making smallpox vaccination mandatory for adults over 21 years old, with a fine for those who refused.  Henny Jacobson had had a mandatory vaccination as a child in Sweden.  He had had such a bad reaction that he developed a life-long fear of vaccinations.  When he refused the vaccination in Cambridge, he was fined.  He argued that this compulsory vaccination violated his constitutional rights to life and liberty.  The U.S. Supreme Court ruled, however, that this was a proper exercise of the police power of the state and local governments in protecting the public health.  The justices claimed that the state legislature was the only body with the power to hear expert testimony about whether vaccination was effective or harmful, and to decide whether "the majority of the medical profession" or the "anti-vaccinationists" were in the right.

If there ever is a vaccine for the COVID-19 coronavirus, we might expect some public health leaders to recommend compulsory vaccination.  And if so, we are likely to hear a lot about the Jacobson decision.

Justice Harlan, writing for the majority in Jacobson, noted that the defendant insisted that a compulsory vaccination law invaded his constitutional right to liberty, which is protected from infringement by state government by the 14th Amendment, because such a law was "hostile to the inherent right of every freeman to care for his own body and health in such a way as to him seems best."  Harlan rejected this claim in the most often quoted passage of his opinion:

". . . the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.  There are manifold restraints to which every person is necessarily subject for the common good.  On any other basis organized society could not exist with safety to its members.  Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.  Real liberty for all could not exist under the operation of a principle with recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. . . ." (197 U.S. 11, 26)

Harlan then quoted from Crowley v. Christensen, 137 U. S. 86, 89: "The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.  Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will.  It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others.  It is then liberty regulated by law."

Thus, "real liberty for all" must be restrained to prevent injury to others, and so the court could uphold the compulsory vaccination law of Massachusetts as a proper restraint on liberty to prevent the injury on the community that would be inflicted by unvaccinated people in the emergency of a smallpox epidemic.

But to conclude from this that the Jacobson decision means that constitutional rights are suspended in times of emergency, and that judges cannot question the constitutionality of the government's exercise of emergency powers in setting aside individual rights, ignores Harlan's repeated insistence that that is not the case.

Justice Harlan made it clear that the court would allow an exercise of the police power to control a small pox epidemic only as long as it was "justified by the necessities of the case."

"We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons." 197 U.S. 11, 28. 

Moreover, "if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."  Id. at 31.

At the end of his opinion, Harlan chose to reiterate this point:

"Before closing this opinion we deem it appropriate, in order to prevent misapprehension as to our views, to observe--perhaps to repeat a thought already sufficiently expressed, namely--that the police power of a State, whether exercised by the legislature, or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression."  Id. at 38.

There are standards here for when the courts should strike down as unconstitutional the suspension of individual rights in times of emergency.  The courts have a duty to review a state's exercise of their police powers in an emergency (1) when such actions are taken in "an arbitrary, unreasonable manner," (2) when the actions have "no real or substantial relation" to protecting the public health, public morals, or public safety, or (3) when the actions are "beyond all question, a plain, palpable invasion of rights secured by the fundamental law."  In those circumstances, the courts must interfere in these state actions "to prevent wrong and oppression."


STICKMAN'S OPINION

From his reading of Harlan's opinion in Jacobson, Judge Stickman concludes that "under the plain language of Jacobson, a public health measure may violate the Constitution," and therefore, "the Constitution applies even in times of emergency" (pp. 13, 21).

Strickman observes that in Pennsylvania, the COVID-19 lockdown is based on executive decrees by the Governor that infringe on constitutional rights, and the state legislature has not exercised any effective constraint on the Governor's actions.  Consequently, the judiciary remains the only constitutional actor that can enforce the constitutional system of checks and balances to secure constitutional rights against the arbitrary absolute rule of one person:

"There is no question that our founders abhorred the concept of one-person rule.  They decried government by fiat.  Absent a robust system of checks and balances, the guarantees of liberty set forth in the Constitution are just ink on parchment.  There is no question that a global pandemic poses serious challenges for governments and for all Americans.  But the response4 to a pandemic (or any emergency) cannot be permitted to undermine our system of constitutional liberties or the system of checks and balances protecting those liberties.  Here, Defendants are statutorily permitted to act with little, if any, meaningful input form the legislature.  For the judiciary to apply an overly deferential standard would remove the only meaningful check on the exercise of power" (pp. 20-21).

The only alternative to this would be to say that in any emergency like a pandemic, the constitutional system of limited government is suspended.  Stickman rejects this because he believes that even in times of emergency the Constitution can and must be enforced.  If that is so, then the question is whether the Governor's lockdown orders really do violate the Constitution--particularly, the First and Fourteenth Amendments.

The First Amendment protects the freedom of speech and "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."  Some of the plaintiffs in the Butler County case had claimed that Governor Wolf's imposed limitations on "events and gatherings" of 25 persons for indoor gatherings and 250 persons for outdoor gatherings violated the right of public assembly.  Specifically, the political plaintiffs complained that these limits on gatherings unconstitutionally violated their right to hold campaign rallies and other campaign events.

Strickman ruled that the Governor's orders for gathering limits showed at least two kinds of inconsistency that rendered those orders unconstitutional.  First, the Governor said that he would allow large protest marches for the "Black Lives Matter" movement; and the Governor himself marched in one of those protests, although these marches violated his COVID-19 orders, which did not specify any exemptions for such protests.  If the people of Pennsylvania have a constitutional right to march in a massive protest of the killing of George Floyd, why don't they also have a constitutional right to attend a large campaign rally?

The second inconsistency, Strickman noted, was "the imposition of a cap on the number of people that may gather for political, social, cultural, educational and other expressive gatherings, while permitting a larger number for commercial gatherings limited only by a percentage of the occupancy capacity of the facility," which was "not narrowly tailored and does not pass constitutional muster" (pp. 31-32).

Strickman also agrees with the argument of the plaintiffs that the Governor's orders closing "non-life sustaining" businesses and requiring Pennsylvanians to stay-at-home violated the Fourteenth Amendment.  This Amendment declares: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."  The stay-at-home order violates the right to freedom of movement and travel.  The business shutdown order violates the freedom to work for a living and the right to property.  It also violates "equal protection of the laws" because some of the business activity that was prohibited was essentially the same as some of the business activity that was permitted.

Although the stay-at-home order was ultimately suspended, Strickman observes that this suspension is not a rescission, because the Governor may reinstate the stay-at-home requirements at any time.  The currently applicable orders have no ending date, applying "until further notice."

That the Governor's lockdown was overbroad, unnecessary, and beyond the established authority of government in response to a pandemic is indicated by the fact that nothing like this had ever been done in American history--or even in world history.  Moreover, there is no evidence that anyone engaged in any rational calculations of the costs and benefits of such an unprecedented lockdown to determine that such drastic means were rationally proportioned to the end of protecting public health.

Throughout history, governments have used quarantines to control pandemics, but Strickman notes that the lockdown of an entire population is not a quarantine.  In the worst pandemic of American history--the Spanish Flu pandemic of 1918-1920, there were quarantines and some restrictions on large gatherings of people, but there were no lockdowns--no orders that everyone stay in the homes and no orders closing all "non-essential" businesses.

Remarkably, Strickman points out, prior to 2020, there were no guidelines from the CDC recommending lockdowns in response to a pandemic.  In the 2017 CDC guidelines for a "Very High Severity" pandemic (comparable to the Spanish Flu), the guidelines provide only that "CDC recommends voluntary home isolation of ill persons," and "CDC might recommend voluntary home quarantine of exposed household members in areas where novel influenza circulates" (p. 44).  Notice the word voluntary.  And notice that nothing like statewide lockdowns is recommended here.

This raises the question that I have asked (here): When and how did the experts decide that a COVID-19 lockdown was justified?  Here is Strickman's answer:

"The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our Country.  They have never been used in response to any other disease in our history.  There were not recommendations made by the CDC.  They were unheard of by the people of this nation until just this year.  It appears as though the imposition of lockdowns in Wuhan and other areas of China--a nation unconstrained by concern for civil liberties and constitutional norms--started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens.  The lockdowns are, therefore, truly unprecedented from a legal perspective" (p. 44).

Now, of course, as Strickman concedes, the fact that some governmental action is new does not make it unconstitutional.  But still the traditional requirements for "balancing" and "proportionality" demand some proof that the novel means are rationally proportioned to the end.  Strickman suggests: "Broad population=wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important end.  The draconian nature of a lockdown may rend this a high bar, indeed" (pp. 48-49).

I would suggest that if governmentally mandated lockdowns to slow or end a pandemic have never been attempted prior to this year, then there's no previous historical experience to provide the evidence to demonstrate the reasonable necessity for such measures to protect the public health.  But now that we have had 7-9 months of experience with lockdowns by state governments in the United States and by national governments around the world, we should be able to analyze the recent historical data to see if the evidence supports lockdowns as rationally proportioned means for mitigating the harm of the pandemic.

For example, one should be able to compare the pandemic death rates for different states and different nations and see if those states and nations with the most severe lockdowns have had the lowest death rates.  But in fact, some recent studies (here and here) have found little evidence that differences in lockdown policies have had any effect on the death rates from the pandemic.  Christian Bjornskov, professor of economics at Aarhus University in Sweden, looks at the association between the intensity of lockdowns and coronavirus deaths in 24 European countries, and he concludes: "more severe lockdown policies have not been associated with lower mortality.  In other words, the lockdowns have not worked as intended."  If that is so, then we can say that lockdowns are not "reasonably necessary to achieve an important end."

Moreover, there is some evidence indicating that when the pandemic broke out, people spontaneously took action to avoid infection by reducing their social and economic activity, so that they engaged in a voluntary lockdown that did not require a governmentally mandated lockdown.  Sweden did this by recommending that its citizens engage in a largely voluntary lockdown without governmental coercion.  Pennsylvania and other states could have adopted this strategy, which does not violate any constitutional rights.

If Pennsylvania had done this, there would have been no need for the Governor to distinguish "life-sustaining" businesses that could remain open as opposed to "non-life sustaining" businesses that had to close.  In a voluntary lockdown, people decide this spontaneously by how they engage in free-market activity--deciding what is necessary to their life and what is not in a pandemic.

Stickman points out that the Governor's orders never gave any definition of "life-sustaining" versus "non-life-sustaining" business.  The Governor did make up a list of "life-sustaining" businesses, but he changed this list 10 times!

At the beginning of the lockdown, the Governor set up a waiver process by which businesses could file requests to have their businesses added to the list of "life-sustaining" businesses.  But within a few weeks, the group of people assigned to review these waiver requests were so overwhelmed by the number of requests that the whole waiver process was ended.

The arbitrariness and capriciousness of the rules of lockdown led to gross violations of the "equal protection" standard of the 14th Amendment.  So, for example, small stores selling appliances and furniture were forced to close; but Lowes, Home Depot, and Walmart were free to sell exactly the same goods.  And thus, Strickman complains, "the largest retailers remained open to attract large crowds," even though the lockdown was supposed to prohibit large gathering where the virus could spread!

For all of these reasons, it seems to me, Judge Strickman has made a good case for overturning the Governors' COVID-19 lockdown orders as unconstitutional.

Wednesday, September 23, 2020

Emergency Powers During the Pandemic: Vindicating the Madisonian Executive Against the Schmittian Executive

It is often said that when a country faces a great emergency, only the executive ruler can properly respond to the crisis; and to do so effectively, the executive must not be constrained by other branches of government or by the normal rule of law.  Carl Schmitt took this as proving the failure of liberal legalism--the claim that political power could be limited by a system of checks and balances and by the rule of law.  Such limits on power might work in ordinary times but not in times of crisis, which creates a "state of exception."  In a crisis, we see who is truly sovereign, because "sovereign is he who decides on the state of exception."   Schmitt was a German Nazi, and he thought that his view of politics was confirmed by the fall of the Weimar Republic and the rise of Adolf Hitler to dictatorial rule during the crisis of the early 1930s.

Recently, some legal scholars have defended this Schmittian view of sovereign executive power as applied to the American presidency.  Eric Posner and Adrian Vermeule--in Terror in the Balance (2007) and in The Executive Unbound: After the Madisonian Republic (2010)--have argued that the Madisonian conception of the presidency as constrained by a legal system of checks and balances has been replaced by a Schmittian conception of the presidency as unconstrained by law, particularly in times of emergency.

If this were true, then we would expect that since the COVID-19 pandemic has become a global emergency, we should see that the governmental responses to the pandemic have allowed executive rulers to govern without any constraints by legislatures, courts, or the general rule of law.  And, indeed, it has been said that the governmentally mandated lockdowns have created a crisis for the liberal constitutional democracies because the crisis favors the growing power of populist authoritarian rulers and the decay of democratic norms.  

In March and early April, when the pandemic lockdowns began, the New York Times published articles with disturbing titles about the pandemic's threat to democracy.  One was "For Autocrats and Others, Coronavirus is a Chance to Grab Even More Power."  Another was "The Virus Comes for Democracy."  When Hungary's Parliament approved legislation giving populist authoritarian Prime Minister Viktor Orban dictatorial powers to rule by decree in an endless state of emergency, many publications had headlines declaring "The End of Democracy."

Now that we have had over nine months of experience with the pandemic, we can begin to examine the historical record to see if it confirms the Schmittian view and denies the Madisonian view.  Tom Ginsburg and Mila Versteeg have recently collected the data for 106 countries--the evidence for how their governments have handled the pandemic--and they conclude that the data largely support the Madisonian view over the Schmittian view:  although in some countries their pandemic governance has been turned over to authoritarian executive governance, in most countries this has not been the case, because the power of the executive has been checked by the legislature, the courts, and subnational governments (Ginsburg and Versteeg 2020).

This sustains one of my main arguments on this blog--that the evolutionary progress in advancing the Lockean Liberal Enlightenment cannot be reversed by any move towards illiberal authoritarianism.  We see here that despite its many recent critics, Francis Fukuyama's announcement in 1989 of the "end of history"--that liberal capitalist democracy has emerged as the best social order for satisfying human desires--is correct.

The coronavirus pandemic does remind us, however, of one fundamental problem for liberal constitutionalism.  On the one hand, liberal constitutionalism is designed to limit the powers of government so that no ruler has the arbitrary absolute power that could deprive us of those individual liberties that a liberal constitution should secure.  On the other hand, in a time of national emergency, we might allow the suspension of our constitutional rights so that a powerful executive ruler has a free hand to do whatever is necessary to save the country.  

That's what we have seen over the past nine months.  In response to the pandemic emergency, democratic governments around the world have violated the individual rights that citizens normally expect to be secure.  Governments acting through the decrees of chief executives have mandated stay-at-home orders, the cessation of religious gatherings, closing schools, closing businesses, restricted travel, and curfews enforced by police and the military.

We must ask: In times of emergency, must the ruling executive have the prerogative powers of a dictator acting outside the law?  Or is it possible in a constitutional democracy to allow some rulers to exercise emergency powers while constraining those powers in ways that preserve constitutional rights?  (In my Political Questions [4th ed., pp. 254-62], I have pondered those questions in my account of John Locke's teaching about executive prerogative as applied to Abraham Lincoln's emergency powers in the Civil War.)

Ginsburg and Versteeg think that most democracies in the pandemic crisis have shown how the exercise of emergency powers can be limited by a constitutional system of checks and balances under the rule of law.


THE LEGAL GROUNDS FOR EMERGENCY POWERS

The legal grounds for emergency powers fall under three broad categories: constitutional authorization, statutory authorization, and extra-legal action.

Constitutional authorization.  Over 90 percent of all the constitutions in force today contain provisions for declaring a state of emergency (Bjornskov and Voigt 2018).  Such a declaration allows the government--usually the chief executive--to rule by decree and to suspend individual rights.

Emergency powers can be used to overturn democracy and establish a dictatorship.  For example, after the Reichstag Fire in 1933--the burning of the building where the German parliament sat--Chancellor Adolf Hitler charged that this was part of a communist revolution to overthrow the government.  In response to this emergency, the Reichstag Fire Decree issued by the President and the Enabling Act passed by parliament suspended many individual rights--including habeas corpus--and allowed Hitler to make laws on his own without parliamentary consent.  So Hitler became the permanent dictator.

To prevent this abuse of emergency powers by the executive ruler, most constitutions with emergency provisions have some checks and balances.  Most constitutions specify the necessary conditions for a state of emergency--such as war, threats to internal security, and national disaster.  In many constitutions, the executive head of state has the right to declare a state of emergency; but in some the legislature must declare the emergency.  In many constitutions, the declaration of emergency by the executive must be approved by the legislature.  Once declared, a state of emergency usually has a set time period, and any extension beyond that set end requires legislative approval.  In most cases, the constitution allows for the suspension of rights during the emergency; but in some cases, certain rights are protected from suspension.  In many cases, the constitution cannot be amended during the emergency; and all decrees issued during the emergency become invalid after the emergency is ended.

Remarkably, while most constitutions around the world have some provisions for declaring an emergency, Ginsburg and Versteeg report that only 43% of those countries with a constitutional emergency regime have actually declared a state of emergency in response to the coronavirus pandemic.

The U.S. Constitution does not have any explicit provisions for extraordinary powers in an emergency.  But there are some specific powers that can be used in an emergency.  The most obvious example is the suspension of the writ of habeas corpus: "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" (Art. I, sec. 9, cl. 2).  The specified conditions are "rebellion or invasion."  The specified end is "public safety."  The formal suspension of the writ has occurred only once in American history--when Abraham Lincoln suspended it in 1861 at the beginning of the Civil War, followed by a congressional statute in 1862 suspending the writ.  

Law professor Michael Dorf (Cornell University) has argued that President Trump could have used this power to support a national COVID-19 lockdown: Trump could have suspended the writ of habeas corpus in response to the "invasion" of the U.S. by the coronavirus.

Statutory authorization.  In the United States, the emergency powers of both the national government and the state governments come mostly from statutory authorization.  Since 1976, when the U.S. Congress passed the National Emergencies Act, presidents have declared over 60 states of emergency, and at least 30 of these are still in effect (Thronson 2013).  These states of emergency confer on the president vast powers for violating individual rights--such as seizing control of the nation's communications infrastructure, mobilizing military forces, and suspending the writ of habeas corpus.  Although the National Emergencies Act requires Congress to vote every six months on whether a declared national emergency should continue, Congress has done this only once.  President Trump has declared a state of emergency in response to the coronavirus pandemic.

In the United States, most of the emergency response to the pandemic has come from state governors acting through state laws that allow governors to assume broad emergency powers after declaring a state of emergency.  This is also part of the "police power" of the state and local governments, which includes the power of acting to protect the public health.

Extra-Legal Action. In at least ten countries--China, Cuba, Cameroon, Belarus, Saudi Arabia, Sudan, Cambodia, Rwanda, Laos, and Tanzania--the pandemic response was entirely based on executive action, with no clear legal basis.  Notably, these are all authoritarian regimes.  There do not seem to be any examples in the democratic regimes of purely extra-legal action in response to the pandemic.  Moreover, in most of the democratic countries, the pandemic orders of the executive rulers have been constrained by checks and balances.


CHECKS AND BALANCES

In most of the democracies, the use of emergency powers by executives has been limited by judicial oversight, legislative oversight, and subnational constraints.

Judicial oversight.  In many countries, the courts have intervened to ensure that procedural requirements for emergency powers are followed.  Sometimes the courts have enforced the constitutional requirements for emergency declarations and extensions of those declarations to be authorized by the legislature.  In Kosovo, for example, the Constitutional Court ordered that executive decrees for a pandemic lockdown that would violate individual rights required legislative approval.  In Israel, when the Prime Minister ordered the use of cellphone data to track infected people, the Supreme Court ruled that this could be done only with legislative authorization.

The pandemic lockdowns have violated or limited many fundamental rights--such as the freedom of movement and assembly, the freedom of religious worship, the right to work, and the right to property.  In many countries, the courts have made judgments about the proper balancing of these substantive rights against the need for protecting the public health.  The courts have invoked a rule of proportionality, by which the government must choose the least restrictive violations of fundamental rights necessary for advancing the public health.  So, for example, the German Constitutional Court has ruled that the government cannot deny the freedom of assembly or the freedom of worship if people are gathering in ways that practice the proper social distancing.  Similarly, in the U.S., a federal court held that Kentucky could not prohibit religious gatherings where social distancing measures were being taken.

Legislative oversight.  In many countries, the pandemic response by the government has required legislative approval.  In some countries, the legislature has set up special committees to oversee the government's actions.  In most of the countries that drafted new legislation for the pandemic response, the legislation is only temporary--when the time expires, renewal requires legislative approval.  The United Kingdom's COVID-19 statute grants special executive powers for only a 21-day period.

Subnational constraints.  In federal states--like the United States, Germany, and Brazil--subnational units of government have adopted their own pandemic responses that often differ from the national policies.  In the U.S., 43 of the state governors have adopted lockdown orders.  And while President Trump once claimed that he had absolute authority over pandemic policies, the governors have disregarded that claim.  And, in fact, Trump has had to concede that the state governors act on their own.


DEMOCRAC Y SURVIVES THE PANDEMIC

Some authoritarian regimes have used the coronavirus pandemic as a pretext for expanding their dictatorial powers. And some vulnerable democracies have shown some erosion in their democratic norms.  The best example of the latter is Hungary, where Parliament has passed a law allowing Viktor Orban to rule by executive decree for the indefinite future.

But generally speaking the fear that the global pandemic would force a strengthening of authoritarian executive power and a weakening of democratic institutions around the world has proven unjustified.  Most of the democratic regimes have found ways to grant some temporary emergency powers to executive rulers while constraining those powers through checks and balances and the rule of law.

This vindicates the Madisonian conception of limited executive power in a democratic republic, and denies the Schmittian conception of the sovereign executive as unbound by any legal constraints.

That this is true for the United States has become even clearer in recent weeks as the lockdowns ordered by the governors in some of the states have been challenged in federal courts as unconstitutional.  In my next post, I will write about one of these cases in Pennsylvania.


REFERENCES

Arnhart, Larry. 2015. Political Questions: Political Philosophy from Plato to Pinker. 4th Edition. Long Grove, IL: Waveland Press.

Bjornskov, Christian, and Stefan Voigt. 2018. "The Architecture of Emergency Constitutions." International Journal of Constitutional Law 16:101-127.

Ginsburg, Tom, and Mila Versteeg. 2020. "The Bound Executive: Emergency Powers During the Pandemic."  Unpublished manuscript.

Posner, Eric, and Adrian Vermeule. 2007. Terror in the Balance: Security, Liberty, and the Court. Oxford: Oxford University Press.

Posner, Eric, and Addrian Vermeule. 2010. The Executive Unbound: After the Madisonian Republic. Oxford: Oxford University Press.

Thronson, Patrick. 2013. "Toward Comprehensive Reform of America's Emergency Law Regime." University of Michigan Journal of Law Reform 46: 737-787.