Legitimate Authority And The Wuhan Virus “Crisis”

     One of the most valuable books in my collection is Robert Higgs’ magnum opus Crisis and Leviathan. Higgs, a scholar of many parts, agreed that the swelling of governments could not be fairly attributed to any single cause. His purpose was to delineate the role of crisis in enabling America’s federal government to exceed its Constitutional authority – and he did a yeoman’s job of it.

     The problem is that once a government has successfully asserted a particular authority, it partakes of a “force” that’s got a momentum like unto Juggernaut’s carriage: tradition.

     “This is the way it was done” easily morphs into “This is the way it has always been done.” The progression is straightforward, as people tend to emulate methods that have demonstrated an adequate degree of success. “Success,” of course, is contextual: it depends on criteria whose selection can be rather dubious. Those criteria sometimes undervalue the costs involved in attaining the “success” goal. Sometimes they omit consideration of the costs entirely.

     Over time, “this is the way it has always been done” undergoes its own transformation: into “this is the way it must be done.” That’s the peculiar effect of tradition, reinforced by another effect that’s generally well understood but difficult to keep in mind: “The victors write the history books.”

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     The late Poul Anderson observed, in his novel The People of the Wind, that the phrase “legitimate authority” hides somewhat more debatable meanings. “Legitimacy,” he wrote, derives from tradition; “authority” derives from force. And indeed, in most societies those are the true inner meanings of "legitimate authority."

     Tradition tends to amplify both the perception of an authority as legitimate and the amount of force the government can marshal to assert it. Consider the federal government’s seizure of the authority to regulate what Americans put into their bodies. That authority is instantiated in the Food and Drug Administration, a branch of the Department of Health and Human Services.

     The FDA has existed for over 113 years. Where did the federal government get the authority to regulate what we ingest? There’s nothing in the Constitution of the United States that would nod toward such an authority. But how many Americans would be disposed to listen to the Constitutional argument against it? How many would be willing to consider its abolition?

     The usual response to anyone who dares question the FDA is that it’s “necessary.” Necessary to whom? By what standard? At what cost, and to whom? Those questions are almost never addressed. As for Thomas Sowell’s sharp thrust, “Compared to what?” virtually no one even thinks to mention it. As for Constitutionality, in these days of post-Constitutional government in which a Speaker of the House of Representatives said openly — to a gaggle of reporters with live cameras and microphones — that “Congress has the power to do anything,” who dares to argue that?

     Through the “logic” of tradition, the FDA has attained governmental immortality, despite being the plainest imaginable example of a usurped authority our Founders never even contemplated, much less granted. And it is but one of a myriad examples I could cite.

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     Constitutionalism was a radical departure from previous governmental schemes. A Supreme Law written out in plain English, to which all other law must conform, was intended to prevent usurpations of un-granted authorities and to put a brake to the progression of “this is the way it's always been done” into “this is the way it must be done” that had afflicted previous societies. Yet owing to successive governmental usurpations of authorities never granted — some, indeed, that had been expressly forbidden — that were not challenged at the time, we have lost the protections of America’s Constitutional tradition. From that perspective, what's happened to us is largely “our fault.”

     But crises have a way of throwing new light on a situation. The major crises Robert Higgs narrates in Crisis and Leviathan — the Great Depression and two World Wars — persuaded many Americans that certain extra-Constitutional authorities could be justified by the need to meet the exigencies of the moment. Today the dynamic is reversed: many are questioning the sudden and severe seizure of many authorities never granted, such authorities being deemed “necessary” because of the Wuhan virus. If we're lucky, the discussion won't be confined to professional talking-heads this time; it will penetrate to private citizens who will understand the gravity of the subject. We shall see.

     (See also David L. Burkhead’s essay on this subject.)