by Neil H. Buchanan
The big story from the recent appearance by Donald Trump's personal attorney William Barr at a religious college in Michigan is that Barr supposedly likened this year's COVID-related shutdowns to slavery. The Washington Post, for example, ran a news article under these words: "Barr under fire over comparison of virus lock-in to slavery."
I have absolutely no reason to bend over backward to give Barr the benefit of any doubt, but that is not what he said. What Barr said was outrageous in other ways, as I will discuss, but what he actually said was this (per CNN): "'You know, putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history,' Barr said as a round of applause came from the crowd."
Again, there is a lot going on there, but Barr was careful specifically to say that slavery was categorically different from what he was complaining about. I am not saying that this makes Barr a good guy, of course, because it merely means that he is savvy enough to think in advance about how to give himself plausible deniability. Sure, calling slavery "a different kind of restraint" is like saying that death is a "different kind of physical malady" from psoriasis, but he did at least say that there is an apples-to-oranges difference. Still, he all but invited the outrage, and he deserves the thrashing that he is receiving; but he did not "compare" or "liken" them, for what little that is worth.
In any event, Barr has surprised everyone by reinventing himself as the embodiment of political evil -- a dishonest, sneering, calculating monster who has disgraced the office of the Attorney General and so much more. On my naive/stupid/evil scale (or, with synonyms, the ignorant/illogical/malevolent scale), there is no doubt that Barr is neither uninformed nor incapable of if/then reasoning. He simply chooses not to use his knowledge and his thinking skills to preserve the rule of law or the Constitution. But what is he doing?
It will be helpful up front, I think, to say that I do not think that Barr believes even the non-outrageous version of what he said. That is, even if he had not thrown the explosive reference to slavery into his comments, I have no reason to believe that he actually thinks that COVID-related lockdowns are a violation of civil liberties at all, much less the worst in American history.
What is happening, I think, is another example of the culture warriors accidentally stumbling upon something that riles up the people in their base (whom the conservative elites privately laugh at) and running with it.
For example, 2005's Supreme Court decision in City of New London v. Kelo became a cause celebre among right-wingers at the time, but it did not start out that way. After all, the case was not (as the freakout following the case suggested) an unprecedented government takeover of private property. It was a close-ish case that applied very standard doctrine to determine the extent of the Fifth Amendment's takings clause (and specifically what "public use" means). The landowner did not claim to have been denied just compensation, and the specific issue -- whether a local government can enhance local business development by condemning land -- did not have an obvious left/right valence. It was pro-business, after all.
After the story blew up, a lawyer at one of the right-wing litigation shops admitted that the case was not on anyone's radar screen for ginning up anti-government outrage, noting that he and his fellow professional provocateurs had been surprised that the issue had become important to the shouters on talk radio. Time to play catch-up, so they went where the crowd led them. Similarly, in the 2016 election, Trump initially did not even want to include the line "drain the swamp" in his rally rants, and he was shocked when it got his rabid crowds even more worked up. He certainly likes swampiness.
Here, there is no reason why Barr or the people with whom he works -- or even the people he purports to represent -- would have a greater a priori resistance to wearing masks or to temporarily shutting down activity in an attempt to get control of a pandemic. Indeed, the pro-business bias of Barr's crowd should have made them even more eager to take a national approach to get things under control quickly, so that everyone could get back to business as usual with minimum disruption.
To put it differently, imagine that this had happened under Barack Obama, with public health officials saying that an induced economic coma was necessary even as Obama hesitated. The Barr/Trump types would have been screaming about Obama shirking his responsibility to protect the best interests of American businesses, none of which could do what was necessary without the excuse of following federal rules. They would be demanding a lockdown.
This entire pose by Trump and Barr as the defenders of civil liberties, then, is especially outrageous in its opportunism. They could have spun this any way they wanted, and indeed they could have had the MAGA-hat wearers running around demanding masking and defending short-term lockdowns as protecting American free enterprise. Instead, they affirmatively made matters worse for themselves by following Trump's instincts to politicize literally everything, and now they are back-filling a rationalization for their self-inflicted wounds.
If Dorf on Law were capable of running sub-headlines, today's would be this: "William Barr Channels Rand Paul's Misunderstanding of the Supposed Wisdom of the Market." That is because Barr supported his "greatest intrusion on civil liberties in American history" comment with this:
"Most of the governors do what bureaucrats always do, which is they ... defy common sense. They treat free citizens as babies that can't take responsibility for themselves and others. We have to give business people an opportunity, tell them what the rules are you know the masks, which rule of masks, you had this month...and then let them try to adapt their business to that and you'll have ingenuity and people will at least have the freedom to try to earn a living."
So let us think this through. We cannot tell business people to do things and expect them to follow the rules, because that treats them like babies; but we can tell them what the rules are (such as having to wear masks) and watch them ingeniously exercise their freedom. Right? But this is, of course, the same thing. When the public health department says that people have to wear shoes and shirts, businesses put up signs saying, "No shirt, No shoes, No service," and then they decide how strictly to enforce those rules, given the risks of being fined, shut down, and so on.
Similarly, when a bar owner is told "what the rules are" with regard to possible legal liability for serving obviously drunk patrons, and when they are told what the rules are regarding the legal drinking age (and acceptable forms of ID, among other things), those businesses are then in a position to decide how carefully and aggressively to follow those rules. Importantly, those businesses are all at risk of going out of business if there are not enough customers under the more restrictive rules than there would be if every drunk 19-year-old were able to buy yet another shot of Jager.
More to the point, every state tells some businesses when they are allowed to be open. If there is a bomb threat, for example, we treat businesses "like babies" and force them to shut down. Why not just tell them that there is a bomb threat in the area and let them exercise their freedom? Because remaining open endangers people who are enticed to think that everything must be fine if businesses are still selling things, and because having active commerce makes the emergency response more complicated and potentially less effective.
Last month, I had some fun (on Verdict and here on Dorf on Law) mocking Senator Rand Paul's invocation of Friedrich von Hayek's paeans to personal freedom. In Paul's words:
"Hayek had it right: Only decentralized power and decision-making, based on millions of individualized situations, can arrive at what risks and behaviors each individual should choose. That’s what America was founded on—not a herd with a couple of people in Washington all telling us what to do, and we like sheep blindly follow."
So I guess the idea is that there are no good rules, because people should be able to make their own decisions. Except that we have to have rules, because otherwise there is chaos. (Among a million other things, we need to know the rules regarding which contracts will be enforced, and how.) The only question is which rules to promulgate in the first place -- a point that Barr, at least, acknowledges in saying that you simply have to set the rules and then let people try to make a buck.
That, however, is still insane, because Barr wants us to think that there is a clean line between rules within which people make decisions, on one hand, and full-on lockdowns that prevent people (temporarily) from making money, on the other. Again, however, there are all kinds of ways in which we simply ban people from making money. Child pornography is illegal. So is cockfighting. And the people who might otherwise have been willing to make money doing those things (and who are unwilling to go underground) find other ways to make money, using whatever resources they have available to deal with not being able to do the things that they would like to do.
Long ago, most jurisdictions in this country decided to repeal their "blue laws," which included (among other things) required business closings on Sundays. Even today, Austria continues to have virtually a complete shutdown of business activity on Sundays. (Showing up in Vienna after a red-eye flight and taking a train into the city on a Sunday morning is eerie, reminiscent of a scifi movie about the apocalypse.) Businesses are told where and when they can try to make money. Those that stay in business do so by dealing with the forced closures.
I am not saying, of course, that any government should decide on a whim to enact bans or restrictions on businesses. The 2020 changes in rules, however, were hardly based on a whim. People who thought that they would, say, be able to make big bucks on the Spring tourist season in NYC were sorely disappointed, but there was a very good reason to stop businesses from being open and carefully managing the schedule of reopenings. The point of the disaster relief bills was to allow those businesses and their employees not to suffer while the necessary shutdowns were ongoing.
Barr, like Paul, seems to think that there is some world in which the government only sets up rules that businesses like and that are objectively neutral. In that regard, it is actually kind of amazing that Barr seemed to say that mask requirements are fine but temporary shutdowns are not.
But these kinds of rules are all completely unremarkable, even though the world is so remarkably different right now. Commerce necessarily involves rules that foreclose some opportunities to seek profit. That is not "an intrusion on civil liberties" any more than laws against indecent exposure or food and drug safety laws are historic abominations. Yes, some businesses complain because safety rules force them not to sell dangerous things, and they have a friend in Trump.
But their complaint is not about deep concepts of freedom. They simply want the rules to be rewritten to allow them to shift risks and costs onto others. "I want to be able to take advantage of people" is not a fundamental principle, nor is the idea that businesses can never be required to cooperate with a response to a public health crisis.