I’ve said this a couple of times in the comments, but might as well repeat myself in a post: the basic problem with New Jersey’s “lockdown orders”–Executive Orders 107 and 108–is that they were hastily drafted at the outset. That haste, though understandable, is taking a toll in confusion, chaos, and excess on the enforcement side. Some of the provisions of Order 107 were unclear. But some of them were overly lenient. Now, as if in compensation for that leniency, both orders are being violated both by residents and by law enforcement, an outcome that was fairly easy to predict. I blogged about the law enforcement side of the problem twice, once on March 23rd (suggestion #2), and once on April 2.
Take this provision from Section 2, subsection 7 of Order 107:
All New Jersey residents shall remain home or at their place of residence unless they are…7) leaving the home for an educational, religious, or political reason;
That provision is consistent with people’s leaving home to protest the Order itself, as long as they engage in social distancing at the protest site. Naturally, protesters are now saying just that.
I regard these protesters as major assholes, but legally speaking, they are right. The Executive Order currently in force gives them every right to do what they’re doing, no matter how irrational or dangerous it is. They are, precisely, “leaving home for a political reason.” As long as they assemble in ways that are consistent with the rest of the Order, they’re acting within the letter of the law. When local police threaten to arrest such people, the police are violating the law. This is just an inescapable implication of the letter of the law–the same nit-picking, Pharisaical letter of the law that law enforcement otherwise likes to harp on when they have you in their custody.
It was a mistake to have written the law this way, but now that it is written that way, it’s a mistake for law enforcement to pretend that it’s written some other way, and arrest people for acting within the law. It bears repetition: the Order does not mandate a “lockdown.” It prohibits some activities and permits others. You have to read the damn thing to know which.
The Attorney General has to clarify this and several other legal issues, as well. If he doesn’t, and doesn’t do so fairly expeditiously, we practically invite the kind of situation in New Jersey that is happening in Michigan (particularly in Sussex County and in south Jersey, but very likely throughout the state). The AG’s Office owes me a response to my earlier query as of Monday, April 20th. I hope to have something to report by then.
The same thing applies at a lesser level when a town like mine closes its municipal parks in the name of following Executive Order 118. This is a pretense, and it has to be called out, less to demand access to the park per se than to demand accountability in government, pandemic or no. Executive Order 118 mandates the closure of state and county parks, not municipal ones. To close a municipal park “in accordance with Executive Order 118” is an obvious misstatement of the law. Municipalities don’t cut us slack for misstating the law in our favor. They can’t complain when we demand reciprocity from them.
We’re now reaping the consequences of decades of abuse by law enforcement. When law enforcement agencies bullshit people, as they so often have, people start to regard everything they say as bullshit, even when it isn’t. When cops demand respect without earning it, they don’t get it when they have earned it. This is what happens when a country is as fucked up as the United States happens to be: we suffer a widespread loss of social trust, so that when we’re faced with crisis, we descend into chaos.
As with Neurath’s boat,* our only hope is to build at sea without drowning. In this case, that means following every provision of the “lockdown” laws, unless patently unreasonable, and demanding enforcement of the law as written, unless patently dangerous. It also means admitting error, and rectifying it after the fact. Neurath’s boat is just a metaphor, but maybe we can take a hint from it, and build our way to security by “gradual reconstruction” on hazardous waters.
*From Otto Neurath’s “Problems in War Economics“:
We are like sailors who on the open sea must reconstruct their ship but are never able to start afresh from the bottom. Where a beam is taken away a new one must at once be put there, and for this the rest of the ship is used as support. In this way, by using the old beams and driftwood the ship can be shaped entirely anew, but only by gradual reconstruction.
In the original version of this post, I’d mistakenly referred to Theseus’s ship rather than Neurath’s boat. Thanks to Roderick Long for pointing out my mistake.