One of the topics I always like to emphasize, both to y’all and my students, is the importance of avoiding arbitrary power—by whatever means necessary.
I’ve emphasized plenty of times how the Constitution is beautiful because it defines for government what government can and cannot do. In other words, the Constitution prevents government from holding arbitrary power.
For those of you who are less familiar with my blog and the concept of arbitrary power, here’s what arbitrary power means.
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“Depending on will or discretion; not governed by any fixed rules; as, an arbitrary decision; an arbitrary punishment.”
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“Arbitrary power is most easily established on the ruins of liberty abused to licentiousness.”
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“Despotic; absolute in power; having no external control; as, an arbitrary prince or government.”
Basically, arbitrary means that one’s power to do something comes from nothing and if it comes from nothing it can’t be confined by anything. I’ll give you a practical example.
Arbitrary Power in The Work Place
Say you work at a company. You have a defined job description about what you are supposed to do. Your boss also has a clearly defined description of his job. However, as time progresses, he begins telling you to do things that you previously had not been required to do. He begins making up random rules about how you are supposed to talk, walk, interact, eat and the like. This type of behavior continues until you feel that you can’t even operate in your job position anymore. His rules are random and sporadic. They don’t come from the company handbook or from his job description and because they aren’t tied to any of these things, his rules can really be about anything.
Eventually, you’ve had enough and you take your situation to your boss’s supervisor. His supervisor can respond in one of two ways. He could say that your boss is acting completely outside of the company’s rules and standards. He’s violated his job description, your job description and has violated company protocols and therefore must either be punished or fired. OR he could say, the company’s standards don’t put a limitation or restriction on your boss’s power and therefore he’s free to use his power to do whatever he wants, however he wants.
In short, he’s free to act arbitrarily.
Arbitrary Power in Government
Apply this example to government. Your boss is your government and government’s job description is the Constitution. One could argue that your boss’s supervisor is the Court.
Well, time and time again your boss (aka: government) has violated its job description and your rights as a citizen by violating the Constitution. By violating the Constitution, government’s power is completely arbitrary and unconfined. So, you take your complaint to the courts. How the courts and Court handle this situation will define for government whether or not it has arbitrary power.
Here’s the thing. The Court has redefined the Constitutional power of the government to be virtually unlimited and undefined. At this point, government’s power is inherent—meaning, simply because government is government, it is able to do whatever it likes. As one law professor puts it:
“Nonetheless, the Supreme Court, especially in the late nineteenth and early twentieth centuries, has sometimes been very fond of arguments that run something like: ‘All self-respecting governments can do X, our national government is a self-respecting government, therefore our national government can do X.’ This kind of reasoning was used to support dubious federal powers to exercise eminent domain, to implement a military draft, to hold overseas colonies, and to pass laws concerning immigration.”
In other words, government has power because government is government (similar to a King having power simply because he’s King. He can behead whomever he wants and who can tell him otherwise?). Instead of, government has power because the people have bestowed upon it certain limited powers defined in the Constitution.
Arbitrary Power and COVID-19
I’ve written about this plenty of times, but I don’t think I’ve seen arbitrary power put so dramatically on display as I have in the past few months.
Specifically, consider the COVID-19 regulations. COVID regulations, primarily established by state governments, are attached to no defined reasoning or restrictions. Even if there is “science” supposedly backing up decisions, the science is subject to change and has changed multiple times over the duration of this virus. (And the courts have done nothing about this, but rather let government define their own power)
Governments arbitrarily decide that some counties need a curfew at 10pm. Some counties decide that masks must be worn at restaurants, even while eating. Some states decide restaurants should be shut down, or that the indoor part should be shut down and that the outdoor eating is ok as long as only appetizers are served—but who defines what an appetizer is versus a full menu item? Some large corporations can be open but local bars are required to shut down or alcohol sales prohibited after a certain point in the evening. Capacity limits are placed on restaurants and other companies ranging from 20% capacity to 50% capacity and this is changing by the day. There’s no rhyme or reason to any of it. Some states decided that Thanksgiving must be canceled or, the states established a variety of regulations about how the festivities should take place. Some states mandate that masks must be worn in your own house if there are guests over. The list goes on and on and on.
Is there a limit to what government can or cannot mandate when it comes to COVID-19?
The simple answer is no.
There is no limit because government is operating outside of its Constitutionally defined role. Since it is acting outside of its powers as government, it has nothing to be accountable to. It’s actions are completely unconfined and government can, very literally, do whatever it likes in the name of “health”, even if its arbitrary mandates have no logical connection to COVID or health. At this point, government’s power is complete and wholly arbitrary.
We are watching the epitome of arbitrary power unfold before our very eyes.
There’s no limit on government’s power here. If government can tell when, where, and how to wear a mask, have Thanksgiving, operate your business, have guests over to your own house, then there’s nothing it can’t tell you to do.
Very literally, how can anyone pull out a state Constitution or the federal Constitution and use it as a defense against arbitrary power if we’ve allowed them to do whatever they want outside the Constitution for so long? They’re doing it anyway. Who care’s what the Constitution says. Who cares what anyone says. Government is King. Its power is arbitrary. Governors can decide, upon a whim or whatever reason, to literally do whatever they want at this point.
Conclusion
Where does it stop? When does it stop?
It’s hard to say isn’t it because these regulations are not established by or upon anything. Therefore, they are not confined or defined by anything. Governors are simply doing what they want.
Why? That’s the real question isn’t it?
Many of their actions don’t even have science backing them up. So, why are they taking these actions? Why are they mandating random and arbitrary regulations that have no scientific support or justification that such mandates are protecting people?
Friends. They are doing so, because they can.
NOT because the Constitution says they can.
They have “absolute power; having no external control”. Their actions are “not governed by any fixed rules” and they are operating off of their own will and discretion on the matter. And as I said about corporations, the government also wants power, and they’ll never have more power than when they have arbitrary power. When the amount and use of their power is completely up to them, rather than a Constitution, their power is arbitrary and therefore dictatorial and endless.
Keep this in mind as new regulations and mandates are announced. Think about whether or not your governor is deriving his power from something, anything, or if he has this power simply because he is.
The Liberty Belle