Law and Liberty in an Emergency

Pandemic in the land is putting strain on our self-image as a free people for whom the rule of law is our ne plus ultra.

Alas, when it gets down to brass tacks, even those two beacons, liberty and law, are as much in tension as in mutual need. It is by law that society restricts our freedom. On the other hand, as Burke observed, without the order that a just legal system ensures, there can be no liberty worth having. We would descend into anarchy, into the law of the jungle.

Times of true security crises — war, natural catastrophes, or the sudden spread of a potentially deadly disease — have a remorseless way of reminding us about some brute realities.

It is all well and good for libertarians to say that the Constitution is not suspended in emergencies, and that are our rights are never more essential than when government’s tyrannical tendencies rear their head. But then real emergencies happen. Inevitably, unavoidably, our rights get restricted — sometimes dramatically.

This is not because government tends to tyranny, though it does if unchecked. It is because people crave security and community. They are willing to sacrifice their individual liberties, at least to a degree and for a time, to preserve them. This does not make them craven. It makes them rational.