Pandemic Endangers American Political Activity, Self-Governance

(Editor’s Note: This piece first appeared in the Daily Caller on 23 April 2020.)

The impact that COVID-19 has had on American public life over the past two months has been extraordinary.

Millions of workers have lost their jobs or are furloughed without pay. Many of those able to work from home struggle to do so while also attending to the education of their children. Religious services, college classes and sporting events are canceled or are conducted virtually. The deadly pandemic has quieted America’s once boisterous public square.

There are more than 2.6 million confirmed cases of COVID-19 worldwide, according to the Johns Hopkins University Coronavirus Resource Center. Of those infected, almost 200,000 have died due to complications from the virus. The United States has been especially hard hit, with nearly 1 million confirmed cases and nearly 40,000 deaths. While the pandemic is thus far centered in large metropolitan areas like New York City, it has nevertheless disrupted life for Americans in all parts of the country.

In a bid to slow its spread and, eventually, to halt the pandemic, government officials have declared states of emergencies, closed schools and issued mandatory stay-at-home orders. Still, some people want the government to go even further. For example, a law professor at Cornell University recently called on Congress to suspend habeas corpus so that the federal government can legally enforce a mandatory lockdown on all Americans. But others are concerned about the long-term impact that the government’s policies will have on the economy and Americans’ civil liberties. People across the country recently protested states’ stay-at-home orders and called on governors to re-open their economies immediately. And Harvard law professor Laurence H. Tribe worries about “the downstream effects” that the pandemic could have on “constitutional democracy and its foundations.” Tribe speculates that the pandemic threatens “to end our centuries-long experiment with self-government.”

Yet the real threat to American public life posed by COVID-19 is the way in which it limits our ability to engage in political activity. It is a threat because Americans make decisions about how to respond to public health emergencies by participating in politics. Limiting their ability to do so, therefore, undermines self-government.

In 1787, John Adams observed, “It is action, not rest, that constitutes our pleasure.” While Adams was referring to the fundamental nature all human beings have in common, his observation captures exceptionally well the animating spirit of American public life. The founding generation understood action to be synonymous with politics. It was how free people governed themselves.

Alexis de Tocqueville echoed Adams’s observation half a century later when he described in a short parable for his countrymen how Americans understood politics in terms of action.

“An obstruction occurs on the public road,” wrote Tocqueville. “The way is interrupted; traffic stops; the neighbors soon get together as a deliberative body.”

He speculated that “out of this improvised assembly will come an executive power that will remedy the difficulty.” And he noted that all of this would likely take place “before the idea of an authority pre-dating that of those interested has occurred to anyone’s imagination.”

Adams and Tocqueville both considered action to be essential to freedom. From their perspective, the American Revolution occurred long before 1775 when the first shots in the War of Independence were fired at the battles of Lexington and Concord. The roots of the revolution can instead be traced to 1619 when the New World’s first legislative assembly convened in Virginia and to 1633 when colonists in Massachusetts held the first New England town meeting.

These twin events suggest that what makes Americans free is their long-standing ability to engage in political activity. The practice of self-government in the colonies that they inaugurated illuminates why Americans reacted with such hostility to the Declaratory Act of 1766, which they saw as an attempt by Parliament to deny them the ability to participate in that practice. And the importance of that activity would be immortalized in American lore nearly 100 years later when Abraham Lincoln asserted in the Gettysburg Address that people are free only to the extent that they are entitled to participate in politics.

If politics is about action, then it requires a public space where that action can occur. Put simply, constitutional self-government needs a proverbial public square to work. It also needs institutional spaces, or representative assemblies like Congress and the state legislatures, where elected officials can act on behalf of their constituents in a large democratic republic like the United States.

And therein lies the problem. COVID-19 makes it harder for people to participate safely in politics by assembling in these spaces. Political activism depends on a common cause and collective action in the public square to be successful. Social distancing protocols are antithetical to the fraternal spirit that animates such activity. And in Congress, COVID-19 makes it harder for the people’s elected representatives to act on their behalf in the House and Senate. Their jobs require them to assemble physically in committees and on the House and Senate floors. But some believe that their health and safety require that they stay away.

Notwithstanding the importance of being present in politics, people are using technology in innovative ways to approximate such activity virtually. Activists have turned to virtual platforms to coordinate their activities. And leadership in the House has embraced proposals, albeit reluctantly, to allow rank-and-file members to work remotely.

But the creative use of technology cannot ultimately substitute for being present and acting physically in politics. Virtual protests lack the camaraderie of the real thing. And a Congress whose members meet virtually and vote remotely is likely to be more dysfunctional and less legitimate than one whose members are physically present. There is no evidence that virtual interaction facilitates the possibilities inherent in political activity in the same way that physical interaction does. Imagine, for example, the likely fate of the Constitution if delegates to the Federal Convention conducted their deliberations in writing instead of meeting in person in Philadelphia for three long months during the hot summer of 1787. And consider whether the Civil Rights Act of 1964 would have passed over the objections of a determined minority if senators were not required to obstruct in person.

These events suggests that political outcomes happen whenever people gather to persuade one another, bargain, negotiate, and to compromise (enthusiastically or not). A protest movement or a Congress that meets virtually would complicate the ability of the people involved to participate in politics in this sense, especially in the many informal, ad hoc, behind-the-scenes activities that together constitute politics.

For these reasons, public health emergencies like the COVID-19 pandemic pose unique threats to constitutional self-government in the United States. They limit our ability to participate in politics while simultaneously encouraging us to defer to others to make decisions to protect our lives and our livelihoods.

Safeguarding constitutional self-government amid this pandemic requires that we think about politics like Adams, Tocqueville and Lincoln did. That is, we must remember that, at bottom, politics is an activity in which free people participate to make collective decisions.

As long as that activity continues, America’s experiment in self-government will outlast COVID-19.