Saturday, June 19, 2021

The pandemic policies are bad

I repeat now, in order to renew and reaffirm, a point that I was careful to make last year: when I criticize policies (or common threads that run through some of those policies over time) of the administration of Governor Holcomb of Indiana -- especially those policies and policy trends relating to the pandemic -- I do not intend for it to be taken as criticism of Eric Holcomb personally.  On the contrary, based on what I knew of him from before he was governor, I believe his inclinations and instincts run with the greater force against the extraordinarily coercive, extra-legal, autocratic slant to the pandemic policies of his administration (like those of other states) than in favor of it.  I believe that he has been pushed in the direction we see by not only the exceptional pressure placed on him, as governor, in the face of the pandemic itself, but probably also advice (from his advisors) to take the actions that he now has taken, the bad example set by governors of other states, and pressure from those among the citizens of Indiana who lack the courage needed to be free.

Indiana's so-called "Emergency Management and Disaster Law" deserves the blame more than any person or number of people, however, because its flaws are so profound, so glaring, and so numerous, but they had been present for over forty years (some of them being around seventy years old) before the pandemic began.  The very existence of this "Disaster" law as we know it was needless and avoidable, and the General Assembly should have done something about it a long time ago.  And if upon reading it, the governor or his staff came to believe that the General Assembly (in the distant past) had made it a governor's responsibility during an emergency to exercise the illegal, abusive powers that IC 10-14-3 affects to grant, then that is unfortunate, but it is not surprising.  IC 10-14-3 creates the appearance (though the appearance is deceiving) that a governor not only may but is expected to take advantage of it.  Accordingly, the governor has done so; among his other uses of it, he has now issued fifteen (and counting!*) consecutive declarations of a "State of Disaster Emergency".

None of this is an "excuse" for his pandemic-related policies.  I simply think that the distinction between criticizing the governor and criticizing what he has been doing is justified and is worth making.

Also, the considerations above all apply (though possibly with less force) to the governor's weird lawsuit against the Indiana General Assembly and some of its members.

* UPDATE, June 30, 2021: The governor has now declared sixteen consecutive Disaster Emergency terms (and counting).

* UPDATE, July 29, 2021: The governor has now declared seventeen consecutive Disaster Emergency terms ... and counting.

* UPDATE, August 30, 2021: The governor has now declared eighteen consecutive Disaster Emergency terms, and counting....

* UPDATE AND CORRECTION, October 5, 2021: First, it occurred to me that where I state above the number of consecutive Disaster Emergency terms that the governor had by those points in time declared, the correct number is in each of those cases one greater than what I wrote.  Each of the numbers that I gave were for the renewals of the State of Disaster Emergency; I neglected to add the first thirty-day term to them.  Second, with that correction, and as of September 30, 2021, the governor has now declared twenty consecutive Disaster Emergency terms, and counting.  (In order to express this in the simplest terms I can manage, I am pretending here that I did not recently notice that the thirty-day Disaster Emergency terms are no longer run consecutively, with each "renewal" beginning immediately when the previous thirty-day term ends.  Four times this year, so far, a "renewal" Disaster Emergency term did not begin until a day after the previous term ended.  By law, that should have caused the State of Disaster Emergency to finally expire -- four times! -- but I see no evidence that anyone has noticed this.  If they did, they are pretending that they did not.)

Saturday, June 12, 2021

Do not attach the word "law" to anything that you wouldn't want people to mistake for an authentic form of law

In the following passage from his Manual of Political Ethics (1838), Francis Lieber observes (and laments) that when unjust and illegal conduct comes to be known by a name with the word “law”* in it (such as “Lynch law”, in the example that he discusses), people more readily accept it and think of it as legitimate than they otherwise would.  They may even come to think of it as having the authority of law.  In truth, these are as much a form of law as “fool’s gold” is a form of gold.

“No offender would hesitate to acknowledge and claim state punishment as his right, if choice were left him between the state punishment, which, because it is state punishment, requires formal trial, on the one hand, and, on the other hand, those summary proceedings against criminals caught in flagrante delicto, which we find in perhaps all early codes, and sometimes acknowledged to a very late period (Blackstone, IV, 308), or to which an excited people sometimes return, when the regular trial appears too slow for their inflamed passions, as has been the case in those riotous and illegal inflictions of death or other punishment, so unfortunately called Lynch law, in our own country.  I say, unfortunately called Lynch law, for it is ever to be deplored, if any illegal procedure receives a regular and separate name of its own.  By this very application of a technical term it assumes an air of systematised authority, which has an astonishing effect upon the multitude, and in fact upon most men.  Give a separate and technically sounding name to a thing, and you take from it much of its harshness for the human ear.  Many a member of trade’s-unions in Scotland would not have been willing to commit outrages upon the person of his neighbors or even murder, had it not been called slating, or by some other technical term.  The same principle applies to errors in science, religion, the arts.”

* “Law” is not the only word that has this effect, however.