1984: Thread

[grarpamp]

https://mises.org/wire/why-so-many-americans-reject-legal-due-process-age-covid

Americans love taking it up the ass, fuck me harder
they say, we love it so much!


Why So Many Americans Reject Legal Due Process In The Age Of COVID

https://mises.org/power-market/covid-panic-new-war-human-rights
https://mises.org/profile/bertrand-de-jouvenel


The policy response to the covid panic of 2020 in the United States
was one of the most widespread direct attacks on fundamental human
rights in decades. Overnight—and without any deliberation, debate, or
checks and balances—millions of Americans were denied their basic
rights to seek employment, to freely assemble, and to engage in
religious practices.

Business and churches were closed, and countless Americans were
ordered to stay in their homes and abandon their sources of income.

This was all done with no legal process other than the issuance of
edicts from a tiny handful of politicians, usually executives such as
state governors and city mayors.

Those who pressed for lockdowns and the effective confiscation of
property—for that's what a forced business closure actually is—denied
that any sort of due process or “checks and balances” were necessary.

Rather, the lockdown advocates insisted that the public instead
embrace unreservedly the “recommendations” of experts in government
offices, who insisted that coerced lockdowns and business closures
were the only reasonable response to the assumed threat of covid-19.
Were one to suggest in mixed company that businesses ought to be
afforded a hearing before being forcibly closed—or that an individual
ought to receive some sort of due process before being deemed a
“nonessential” worker—this was likely to elicit scoffing and contempt.

There’s no room for due process anymore, the official narrative tells us.

This new turn toward obedience to expert-fueled executive power didn’t
appear from nowhere. Rather it is, in part, a manifestation of a long
ideological process that has gradually replaced respect for legal
checks and balances and due process with a deference to scientific
experts. These experts, it is alleged, must not be subject to the slow
and inefficient process of legal constraints on state power.

This process is explained in a 1963 essay by French political
scientist Bertrand de Jouvenel titled “The Political Consequences of
the Rise of Science.”1

De Jouvenel’s basic premise is this: with the rise of liberalism in
the West—what some call classical liberalism—greater care was taken to
erect legal obstacles that slowed or prevented state action against
individuals. This was done to ensure due process was afforded to
ordinary people. This position became especially widespread and
respected in the eighteenth and nineteenth centuries as many gained a
greater mistrust of government institutions and their agents. The idea
was that political institutions could not seize life, liberty, or
property from a person unless the state was first subjected to a
reliable and stable legal process.

But this due process was slow, and was backward looking in the sense
that it had been built up on legal foundations of avoiding past abuses
by regimes. In a certain sense, it is conservative by nature.

De Jouvenel writes:

    Precedent is the most ancient basis of law, and the safest….

    Judicial procedure is the sole remnant of the old idea of “the
right way,” and therefore an islet of stable procedure in a sea of
shifting processes.

The most revered experts under this way of thinking were the legal
experts or—to use de Jouvenel’s preferred term—the jurists, who
ensured that legal process was respected so as to ensure the
maintenance of legal rights.

But by the twentieth century, this respect for the jurists had begun
to be replaced by deference to other experts, especially to scientific
experts and policy experts, who promised to be able to manage and
direct society toward specific outcomes. Moreover, the public’s
growing faith in technology as a means of fine-tuning society began to
challenge the now seemingly old-fashioned ideas of due process and
stable procedure.

Consequently, de Jouvenel writes,

    Now the judgment has been reversed: those who operate
traditionally [i.e., the jurists who demanded respect for the old
legal processes] are a drag upon progress.

Outcomes, rather than the legal process, become the driving motivation
for policy. The model for society at this point shifts from a
courtroom or parliament to a laboratory. Progress comes to be defined
as the adoption of lightning-fast scientific efficiency:

    Social organization [under the new experts] becomes a matter for
systems engineering, and specific decisions become problems of
operations research….

    Unwittingly and indirectly, the scientist undermines the juristic
order…. Our expectation of and enthusiasm for progress are in
contradiction with fidelity to “the ways of our fathers.” But the
“ways of our father,” so dear to ancient moralists, have always served
as a significant basis for jurists.

So let’s look at how this has played out during the covid crisis.

That “science” was more important than due process in the minds of a
great many Americans became immediately obvious for anyone who tried
to stick up for “due process” during the spring of 2020.

Rather, policy became guided by the idea that experts will tell us the
proper goals of government policy, and then governments were expected
to impose the coercive measures necessary to achieve those goals. This
process was seemingly efficient and progressive: the experts wanted X
and Y, so it was expected that the state would use its police powers
to force everyone to do X and Y. The end.

Political debate, legislative process, and adherence to legal
processes, on the other hand, became mere impediments to accomplishing
these important “scientific” goals.

The means through which this was to be accomplished was also explained
by de Jouvenel, who noted that in the old liberal ideal of legal
process, the legislature was to take the lead, with the executive
acting merely to carry out the legislators’ wishes. This was the old
Lockean model. But it failed to last.

Rather, in a regime that defers to scientific expertise, executive
power has the upper hand, and the old Lockean model is turned on its
head:

    Science is a contributory influence to the dissolution of a
juristic order. In the political realm, it is blatantly clear now that
”the executive” is nothing like what Locke imagined: he saw it as a
power subordinate to the legislative, and as “seeing to” the execution
of the laws. This implied that a decision of the executive should look
back to the laws in force, whereas we are well aware that that such
decisions in fact look forward to the results to be hoped from them.

In this new model, only the executive is well suited to conform to the
demands of the new model of expertise. The executive can act fast,
with minimal deliberation, and with attention paid more to outcome
than to process. Growing executive power is a natural fit for a
society geared toward deference for technocratic experts. By this way
of thinking, it’s best to just move forward and let the legislatures
and courts catch up later.

And this what we have seen over the past eighteen months. Experts and
executives take the political lead with a variety of orders and
edicts, and it’s up to the courts and the legislatures to follow the
lead of “decisive” action taken in the name of science.

Thus, only many months after the fact can those who oppose the
executive’s preferred policies hope to regain some semblance of legal
rights and due process through the courts or legislative action. By
then, of course, grave damage might have already been done to human
rights and economic institutions. And experience suggests that legal
rights, once abolished, are exceptionally difficult to regain months
or years later.

The public is likely to tolerate this, however, because the new model
of scientific expertise has been so successful among so much of the
public. In this new way of thinking, it is important to “do something”
and to “trust the experts” and to disregard legal limits on executive
power. To demand otherwise is to be “against science.”