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If we want to know what really limited the regime’s power during the Covid Panic, we must look to the “do-not-comply” activists who were willing to lose jobs and social status as a result of their opposition to the regime. It was primarily the people portrayed as crazed malcontents by the regime who stood between the regime and the full use of its power. The US constitution and the Bill of Rights played virtually no role in limiting the state’s power during the emergency.

03/05/2024 • Mises Wire •Ryan McMaken

https://mises.org/mises-wire/covid-showed-us-who-really-rules-america

This month marks the fourth anniversary of one of the most disastrous assaults on human rights in American history. It was on March 16, 2020 that the President Trump issued “guidelines” for “15 days to slow the spread” which stated that “Governors of states with evidence of community transmission should close schools in affected and surrounding areas.” The administration instructed all members of the public to “listen to and follow the directions of your state and local authorities.”

It was at this time that an American president, for the first time in American history, introduced the idea that it was possible—and perfectly legal—for government institutions to “close down” the economy by forcibly shutting, en masse, countless businesses, schools, and churches. Trump stated repeatedly in press conferences that it was up to government officials to decide “if we open up.” It quickly became standard procedure for health bureaucrats, governors, and media figures to casually speak of “closing the economy” or “opening up” as if we were talking about a coffee shop deciding on closing time.

Meanwhile, across the country, local law enforcement officers willingly worked to arrest or harass business owners, worshipers at church, soccer moms at the park, and anyone else with the temerity to venture outdoors for activities not approved by the ruling class. 

The small minority of Americans that remained committed to human rights and private property soon discovered how powerless they really are. Many dissenters were dismayed by a lack of action from the courts, and how elected officials were apparently unwilling or unable to rein in the vast new powers of “health” officials. Was there nothing that could limit the state’s power? This was confusing for many people because many have been (and remain) enamored of the idea that written constitutions limit state power when it matters most. 

Many dissenters learned a valuable lesson from the experience, however: during the Covid Panic of 2020 and 2021, it became abundantly clear how little constitutional government and the so-called “rule of law” actually limit a regime’s power in times of perceived emergency. It is during emergencies, in fact, when we learn who really holds political power, and how ineffective are constitutional measures designed to limit it.

True Power Is Revealed by Emergencies 

As the Covid Panic revealed to us, the real, de facto ruling class is the executive state which effortlessly ruled by decree during the covid crisis. This ruling clique—an oligarchy of governors, academic “experts,” media billionaires, and countless nameless and faceless unelected bureaucrats—has illustrated in recent years how irrelevant elected lawmakers can be to the use of political power.

This problem is not new, nor have scholars only recently noticed it. Libertarian political scientists Carlo Lottieri and Marco Bassani have noted that the problem of emergency power has long been a concern for radical free-market liberals, especially those of the Italian school of elitism. These scholars recognized that political power in times of emergencies is exercised by individual persons who are unconcerned with abstract limits on their power. This fact is fundamentally at odds with the abstractions of the constitutionalists who imagine that the state monopoly on coercion can be rendered relatively harmless via written constitutions. That is, the constitutionalists believe the written law will somehow restrain the ruling class, even in emergencies. 

In practice, however, this doesn’t happen. Lottieri and Bassani explain what the constitutionalists get wrong:

The constitutionalist claim to justify the State’s monopoly of violence has been challenged directly by the radical libertarian tradition (Molinari) and by individualist anarchists (such as Lysander Spooner). However, an important role in bringing the modern State into perspective has also been played by European political realism and, in particular, by Carl Schmitt and the Italian elitist scholars (Gaetano Mosca and Vilfredo Pareto).

Schmitt’s importance rests very much on his intuition that in every State there is first a political dimension and then a decision, which cannot be obscured by the so-called “impersonality” of law and the “super-individuality” of orders. Beyond the apparent abstraction of the State … Schmitt uncovered choices, interests, and, in short, people that impose their will on others.

The constitutional thought of classical and contemporary liberalism has constantly tried to neutralize politics, but it has failed. … [T]he real sovereign is the political group that has the final decision about the critical situation, in the state of emergency. The locus of sovereignty thus becomes the political entity (which in our time is the State), and the decision on the state of emergency is the ultimate test of sovereignty. Legal positivism tried hard to refute the importance of this notion, but critical decision making is paramount in the development of human relations.

Lottieri further notes that the fantasy of a neutral regime constrained by mere legal barriers is “simply impossible.” Yet, the naive view has often made the state appear less dangerous and has convinced many to accept the state’s monopoly of violence. 

This is illustrated in the fact that the efforts to implement lockdowns in the United States were thoroughly bipartisan. Opposition to lockdowns was virtually nonexistent within regime institutions themselves. The Trump administration, the CDC, the legacy media, social media, state medical boards, state governors, and local health officials were all more or less in lockstep in March and April 2020.

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