Monday, June 29, 2020


A friend of mine noted recently that while he was out and about in New York City, he noted fewer people wearing masks and more unhappiness than he had expected.

The reason, I offered, was simple. When government acts without the consent of the governed, the governed tend to comply sullenly, haltingly and minimally. It isn’t complicated. If you’re going to be autocratic, you’re going to get a surly, paranoid population that specializes in malicious compliance.

What does that have to do with masks? In the case of the coronavirus, governors (and to a lesser extent the Trump administration) have acted without reference to public preferences as aggregated and expressed through their representative bodies. Governors and the Centers for Disease Control and Prevention have decided on their own and using no known, understood or understandable criteria that masks are required or optional, that protests are fine, but church is out, that 10 people is good but 12 is too many.

That same sort of indifference to the rule of law and the supremacy of the people as expressed through their legislatures also has infected those who wear robes. Justice Neil M. Gorsuch’s recent decision on Title VII of the Civil Rights Act “solving” the question of whether the word “sex” includes gender identity was authoritarian right to its core. He and his five classmates at the court simply decided that the issue was too difficult for the legislature and required the wisdom of the justices.

The problem is, of course, that no matter how smart one person is, he or she cannot account for or even predict all the possible outcomes of any decision. Additionally, courts cannot (and do not even try to) account for all the various preferences among people.

That’s why we have legislatures.

Legislatures are difficult to deal with and are cumbersome, slow and inefficient. But (to borrow from Churchill) they are the best method yet devised to ensure the consent of the governed. That consent is not important because it sounds good or makes us feel better. It is not a box-checking exercise. For example, Congress has tried to untie the Title VII knot on sex and gender identity for some time, but could not because the people they represent have not made up their minds about all of the possible outcomes.

If rulers — whether they be governors carried away with their temporary power or U.S. Supreme Court justices carried away by their confidence in their own wisdom — don’t allow for the aggregation of public preferences, the mayhem of public discussion, the inclusion of differing viewpoints and the collective decision-making that occurs in legislative bodies, then their unilateral decisions will eventually be deemed illegitimate by some or all and be resisted wherever and however possible.

That’s just human nature. If you don’t ask people what they want to do, they are unlikely to go along pleasantly with what you instruct them to do.

When the process of including people in decisions relevant to their lives is short-circuited by authoritarians (under whatever guise or under whatever robes), it leads by a direct route to discontent, social friction and disharmony.

If, on the other hand, people have a chance to have their say, to be included, to deliberate on possible solutions and results, and to have an opportunity to be heard and have their opinions and preferences considered, the outcomes are much more likely to be accepted by the governed.

In short, when government actors are not constrained by the law, neither is the population.

• Michael McKenna, a columnist for The Washington Times, is the president of MWR Strategies. He was most recently a deputy assistant to the president and deputy director of the Office of Legislative Affairs at the White House.

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