Freedom of Movement and Freedom of Commerce: Barr Is Still Wrong
by Neil H. Buchanan
For the last several years, it has become a grim, oft-repeated joke that it is impossible to keep up with the blur of awful news that rushes by us, dreary day after depressing week after soul-crushing month. This last week seems to be both proof that it can always get worse and a demonstration that even hitting bottom would not be in any way a relief. If this truly is as low as we go (and I doubt that it is), then that merely means that life might have fewer big shocks ahead -- but that we are stuck with the consequences of what we have already endured.
We very recently were wondering whether Donald Trump's insulting of people who join the military -- and especially those who are captured or die -- would erode even a tiny bit of his political support. We heard him admitting on tape that he has been very consciously lying about the coronavirus pandemic. We had heard Trump's Roy Cohn projecting every Trumpian evil onto Trump's opponents, claiming that it is everyone else who is abusing the rule of law and dishonoring the Constitution.
And all of those things, none of which meaningfully changed the polls or support among Republicans who slavishly back Trump, hit us before Justice Ruth Bader Ginsburg's death saddened us beyond measure -- only to be quickly followed by a Republican power play of jaw-dropping proportions. Oh, and also a gratuitous insult from Trump, who called RBG's granddaughter a liar.
Although Bill Barr's latest trolling of America is no longer the greatest outrage to which one might respond, I want to use this space today to return to a discussion of what he had said last week about stay-at-home orders: "Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history." Barr's casual distortion of our history calls for additional condemnation, because he truly does not understand what freedom is.
In Barr's very minimal defense, virtually no one with whom he associates knows anything about freedom, either. Much like their supposed devotion to capitalism being little more than an excuse to justify inequality and abuse of power, movement conservatives invoke the concept of freedom as a cudgel for political purposes without actually knowing what the concept even means. (Ditto for "values.") Freedom and liberty, in the sense that Barr uses those words, simply means that people he cares about are able to do what they want to do, when they want to do it -- even if doing so prevents people he disdains from doing what they want to do (including staying alive).
Last week (again, could it possibly be less than seven days ago?), both Professor Dorf and I responded to Barr's insane, snide comments during and after a speech at a right-wing religious college in Michigan. The big takeaway was that although Barr was careful (even in the off-the-cuff format of a Q&A) not to equate slavery directly with a national lockdown, he was obviously and quite deliberately stoking outrage by putting them in the same sentence. This was provocation pure and simple, troweled out in utter bad faith.
In my column last week, I focused most of my attention on one of Barr's comments about business activity during the pandemic:
"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."
I engaged with that statement by generously taking Barr to have been talking about lockdowns and stay-at-home orders in the sense that they affect business activity. That is, I argued that telling businesses that they have to close temporarily or follow stricter rules that are responsive to our new reality is not categorically different from what the laws of commerce always involve -- rules that crybabies like Barr label anti-freedom but that merely set the table and thus allow business to be transacted at all.
Businesses cannot sell prescription drugs over the counter. Certain businesses must have lavatory facilities available to customers (and must keep them clean). Some businesses must not close too late or open too early (e.g., bars). People cannot buy and sell other people. Private property is subject to zoning laws. All of these and more are "violations of our liberties" from the standpoint of people who would like to do what the laws forbid. I cannot resell rocket-propelled grenades to anyone, and my freedom is thus diminished!
A comment on my column, however, suggested that Barr meant his statement in an even more ridiculous sense. Under that reading, Barr was saying that "bureaucrats" who "treat free citizens as babies that can't take responsibility for themselves and others" are wrong because they created a national lockdown (note: they didn't) that prevented people from leaving their homes. This would suggest that Barr was admitting that it is indeed acceptable to force businesses to follow strict rules that prevent customers from doing what they would otherwise do (shop without wearing masks, pack themselves into bars), because the businesses will have the "ingenuity" and "freedom to try to earn a living." The intrusion on civil liberties, then, is not against businesses but people.
I should emphasize that I find it impossible to believe that this is what Barr meant, or what he believes. Taken as a whole, his remarks do not add up to a "go ahead and regulate the businesses but not their customers" argument. Although he tosses off comments about mask rules, he was arguing that the governor-bureaucrats were stopping people (including business owners) from being free.
But even if I am being unfair to Barr (which would not bother me at all), the distinction is an absurd one. Telling people that they are free to go to businesses that must operate under rules that the customers do not want to follow is simply to relocate the supposed impingement on one's liberty. "You cannot go to a bar" and "You can go to a bar if you can find one, but they have all have temporarily had to close because their method of doing business spreads a deadly contagion" are the same thing. Either way, I cannot sit on a bar stool and enjoy a cold one.
And why do those new rules exist? Precisely because we know that, in current circumstances, we cannot count on people to "take responsibility for themselves and others" -- especially others. With Trump-rage-fueled idiots assaulting businesses' employees who try to enforce masking and social distancing guidelines, and with too many people saying that they have the right to make themselves sick if they want to take the risk (no matter the contagion), it is obvious that the most basic thing that we thought we knew about freedom -- that "your liberty to swing your fist ends just where my nose begins" -- is dead in Barr's world.
The problem, of course, is that all of the incentives of commerce and daily life tempt us to chip away at the edges of safe behavior. We have rules instead of standards when it is simply too likely that each person will say, "Well, my behavior is not going to be a real problem." No single act of littering destroys a landscape, and it is true that the Chesapeake watershed will not die if I pour one pan of used motor oil down a sewer. But I am rightly prevented from exercising my liberty to do so.
Again, however, perhaps there is another way to read Barr's comments, which is that his objection is to the "at home" part of stay-at-home orders. Even if telling everyone to stay at home has the same effect on restaurants, bars, and other businesses that would result from orders to shut those businesses directly, at least orders to close businesses allow people to walk outside. Surely, that is freedom in the sense that people truly care about it: being able to go where one wants to go.
Of course, there are countless places that we cannot go. For the hyper-libertarian types that Barr champions, in fact, private property is inviolable. I cannot walk onto anyone else's property without permission. Senator Rand Paul even criticized Title VI of the 1964 Civil Rights Act for requiring that public accommodations be offered on an equal basis to all citizens. The liberty to be a bigot is so important to Paul -- who insists piously that he himself is no bigot; it is simply that he cares so much about freedom -- that tens of millions of people should be prevented from freely engaging in the daily commerce of the nation, in order to protect others' freedom to exclude.
But such generalities are hardly necessary to rebut this narrower version of Barr's argument. Professor Dorf suggested in his column that "the fact that the United States locked up over 100,000 Japanese Americans during World War II for no reason other than their ancestry ... slipped Barr's mind." Professor Dorf also listed Andrew Jackson's "Indian removal" policies (also known as the Trail of Tears) along with Jim Crow, McCarthyism, and patriarchy as greater "intrusions on civil liberties" than the current not-at-all-national lockdown orders.
This, indeed, is a good moment to revisit what I wrote above regarding Barr's selective solicitude for people's freedoms. Freedom of movement? As a white male with a valid credit card, I can get in a car and travel pretty much wherever I want to go. And importantly, I can go to a bar (when bars are open) and sit alone, assuming that I will be left to my own devices. Women? Not so much, at least if freedom includes (as it should) the confidence that showing up at a restaurant or bar alone is not to be interpreted as an open invitation to be harassed by men who assume that "she's looking for it."
Too abstract? Not for any woman who has been told again and again not to travel alone and to have exit strategies and self-defense plans (such as using car keys as a weapon against an attacker), just in case any situation takes a dangerous turn. But for people like Barr, that is not the kind of liberty -- the freedom to live life unmolested -- that matters much. White men have to have the freedom to exclude and demean minorities and women, in his crabbed approach to the concept of liberty.
Even so, let us return to the example of the Japanese internees in World War II. That certainly counts as an extreme form of "intrusion" on civil liberties, right? But as Professor Dorf surmises, "[p]erhaps Barr is using a secret and idiosyncratic metric to measure 'greatest intrusion.'" Would that be "largest number of people affected? If so, what about curfews? Not only the curfews that Barr so strongly supports today, which are used to limit anti-racism protests, but also the widespread stay-at-home orders during World War II? People not only literally were ordered to stay inside, but they were obligated by law to cover their windows as part of "blackout" orders to prevent Nazi or Japanese Imperial bombers from targeting American population centers.
So tens of millions of free Americans were told where and when to go, what to do, and even that they had to prevent themselves from being seen. Is that bad? Of course not, because the idea was that the alternative was worse. Every individual would be tempted to say, "Well, the Krauts will never see just my little light," but everyone had to give up that freedom temporarily to prevent themselves and others from being exposed to an increased likelihood of death.
Today, we are trying to fight an invisible enemy that travels among us and takes advantage of the ways in which we are accustomed to interacting. Each of us wants to go back to behaving as we did before. (I certainly do.) Each of us is tempted to cut corners. Each of us can get ourselves and others killed.
Should we prevent each other from exercising our own personal ideas of freedom? Yes, of course, with appropriate guidance from scientific experts and political assessments of risks. But the idea that this is an unprecedented invasion of our civil liberties -- even if we focus only on freedoms in our personal lives -- is absurd. Barr's trollery is simply bottomless in its dishonesty.