Fenster writes:

In crises, events first everything else later, including post-mortems, recriminations and oopsies.

This is true with the law as well. The law pretends to majesty but in crisis it can find itself behind the curve with the other schlubs.

I don’t cotton to the Critical Legal Studies set but that’s mostly because my thoughts on extra-legal sociology don’t jibe with theirs. They are quite right that the law is a huge heuristic, so large and critical (in the other sense of the word) that it seeks by its nature to blot out any meta-interpretations as to what it is all about.

And so when you get to crisis modes the self-satisfied concept of the law as Platonically real will always be under more pressure than it will be in normal times, when we can afford to accept the notions advanced by lawyers that they somehow transcend history.

I am on the one hand looking for a legally sound review of what the hell is going on with “public health” relative to law while on the other desirous of a counterweight that is capable of seeing law as just one more thing in a complex society beset by events.

It is tempting to turn to lawyers, prominent graybeard eminences, to provide that prudential advice. Alas, reliance on lawyers is compromised in crisis for several reasons.

First, they have a hard time seeing the law as a device. The practice of law puts a premium on living inside its strictures. To expect otherwise would be like expecting a car mechanic to consider the role of God in the automotive industry.

Second, they are trained in the adversarial method. Under this view “justice” may be mangled in any particular case but the arc of justice is long. The only reasonable way of securing justice in that long run is by taking positions, even absurd ones, and fighting things out. So the risk of asking a lawyer what gives in a crisis is that you are likely to get an answer fashioned by someone who preferences the defense of a position over a critical regard for truth.

As much as I respect Alan Dershowitz and would not want to tangle with him in debate something of this tendency is apparent in his quite firm view on the law where aspects of public health and vaccinations are concerned. Here is is on Tucker Carlson Tonight. Asked about the constitutionality of mandated vaccinations Dershowitz responded:

The Supreme Court said yes. If a case came today to the Supreme Court they would say yes. It would be nine to nothing or eight to one. It is not a debatable issue.

Is this a nuanced legal analysis? Or is it better seen as the taking of a position and aggressively advancing it?

Surely Dershowitz knows that cases do not arrive at the Supreme Court in neat little packages–thumbs up or thumbs down on vaccinations, and put it into Box A. Cases have hair on them, and the process of judging is less a matter of categorization than it is balancing the general with the particular.

Yes there are Supreme Court cases that support the notion of mandated vaccination programs. Whether a given case falls inside or outside the scope of previous decisions–especially in a dynamic environment when past categories become uncertain guides for current problems–is not a given.

Take the case that seems to this non-lawyer to be the one most cited in terms of Supreme Court precedent.

Jacobson v. Massachusetts, 197 U.S. 11 (1905), was a United States Supreme Court case in which the Court upheld the authority of states to enforce compulsory vaccination laws. The Court’s decision articulated the view that individual liberty is not absolute and is subject to the police power of the state.

But in 1905 public health had not yet established a rough dominion over the kind of killers, like smallpox, that had scarred the body politic for millennia and that supported an expansive view of police powers. Indeed this very case was brought after the city of Cambridge moved to mandatory vaccination under the immediate threat of a smallpox outbreak.

Quick and admittedly cursory reviews of similar court cases establishing precedents give off the same air–the immediate need for vaccinations given a clear emergency, the need to vaccinate against killer threats.

I am holding aside for the moment whether the current COVID outbreak has those characteristics. But would Derwshowitz be correct in asserting a generalized power on the part of government in favor of mandated vaccinations, irrespective of the conditions at hand in the moment?

Our practice to date with the flu has been to make vaccination a matter of personal choice. If a person opts not to be vaccinated he is not only subjecting himself to risk but also others with whom he comes in contact, all of whom will have some possibility, however remote, of dying. We accept that method as a reasonable one. But there are certainly many voices in the public health community that would like to see more flu vaccinations. Indeed I am sure some would like to see the practice a universal one.

But if the federal government announced tomorrow a program for mandatory flu vaccinations would Dershowitz say that program would be constitutionally kosher?

Moreover, what limits, if any, exists to government action with respect to diseases that have not yet spread or may not be imminent? It’s like the “pre-crime” in Minority Report. Say that experts think it reasonable to assume an illness may spread in the future. Can we mandate vaccinations today?

Or take the notion that mass vaccinations may not be employed only to ward off disease but to change the underlying structure of the vaccinated person such that positive public health objectives are met. You don’t have to be a conspiracy theorist to see that work is underway on methods by which the genetic structure of a species–say the human species–can be altered. Should government be given free rein to vaccinate if the objective is not to halt an immediate threat from a dangerous plague but rather to retool DNA to support public health goals? What public health? Whose?

It is not sufficient to say that government has a right to vaccinate and simply give the CDC or some other government body a free hand in the exercise of police powers. And the same goes for lockdowns which have no statutory basis but are entirely premised on an expansive view of police powers.

And here we come back to whether the majesty of the law can easily survive a serious brush with crisis. Formally speaking the law in a constitutional republic is deemed legitimate since it is held to arise from decisions made by free people in their selection of representatives. Legislatures will delegate and courts will second guess–but the law is the law.

But legitimacy is as legitimacy does. If the government is seen as running roughshod over the people’s clear interests no amount of Constitutional flapdoodle will get the genie back in the bottle. If the people see the emperor has no clothes, and act on that basis, legitimacy is withheld in a more direct fashion than could ever arise via methods that are procedurally more pristine.

The “federalist” approach to lockdowns has the virtue of being in keeping with a certain view of the Constitution, and has some formal integrity as a result. But when power is mostly exercised by state and local government the ability of the people to seek redress through direct action is enhanced, too. If all the businesses in the city re-open at one time there is precious little local authorities can do about it.

Rebellion expressed in this way does not line up neatly with the notion of a constitutional republic. It is that rawer thing: democracy.

Sometimes you need democracy–the real thing–good and hard. But direct democracy is an unstable governing method in the long run . Sooner or later cooler heads will prevail and with a little luck that may mean a revitalization of the republican ideal. But how this would work in the long run is to me unclear, my vision clouded and my imagination limited by the ridiculous confines of the moment. Maybe the answer lies in individual choice. Maybe it lies in collective decision making regarding the limits to government action.

I doubt individual choice can be counted on to provide the bulk of the answer. We are not living in a libertarian moment and are probably not living in a libertarian century, or millennium. The East is Red, though not (necessarily) in a communist sense. Solutions to problems in an a world stuffed with advanced technology will have by necessity a collective dimension because the overriding feature of that technology is that it is networked. Social media expresses networks of ideas. Surveillance is interested in networks of human behaviors. And via public health seeks to manage living networks of biological entities.

That does not mean there is no role for the individual in collective action. Concerted action by a group towards a goal does not require that all actors are required to become cogs in a wheel. One of Tocqueville’s key insights about Americans is that they were both highly individualistic and capable of accomplishing great things in common. He saw a nation of joiners, not serfs or conscripted soldiers.

If we can locate that part of our historic character and act on it great things might be possible still. Relative to the question at hand that would mean that Americans would find a way to take a firm stand against the excesses of technological tyranny, doing so voluntarily and collectively in the protection of individual autonomy.

You wouldn’t need any special tools to do this. They are in front of our noses–in the Constitution. Throw the bums out and keep throwing them out until they pass laws that ensure we wont be vaccinated with tracking devices. Until they pass laws asserting control over renegade tech companies with government-like power but private sector protections.

And so on. Don’t mourn. Organize.