And even where some restrictions are loosening, governments are not relinquishing the right to impose such restrictions. This month, Scotland is set to renew the Coronavirus Act, which granted the Scottish government emergency powers earlier in the pandemic. If this happens, by the time the powers expire, the government will have had emergency powers for two and half years. Never mind that in 2020, the rate of age-adjusted all-cause mortality in Scotland was lower than in 2009. In Scotland, as in many other countries, vaccine passports, mask mandates, school closures, and lockdowns appear to have become part of the magistrates’ governing repertoire—ready to be implemented again the moment the opportunity arises.
In an interview for Le Monde in March 2020, Italian political philosopher Giorgio Agamben said, “The epidemic has made clear that the state of exception to which our governments have actually accustomed us for quite some time, has become the normal condition. . . . A society that exists in a perennial state of emergency cannot be free.” Agamben had written previously about the concept of “the state of exception” in reference to the “war on terror” and the way that the threat of terrorism served to justify the suspension of civil liberties for a certain group of people. For Agamben, the novel coronavirus was simply a fresh occasion for a similar approach. Leaders used the threat of impending death and catastrophe to give the government extraordinary powers in order to defeat the enemy.
Governments cannot have it both ways: Ordinary times carry with them ordinary constitutional constraints on government action and ordinary obligations to obey and comply. If governments appeal to a permanent state of exception to elude the former, it will find that more and more people consider themselves free of the latter.
That is why, for the sake of constitutional order and legitimacy, government claims for extraordinary powers must cease. Now that the deadliest phase of the pandemic has passed, the real emergency, at this point, is the permanent appeal to emergency. The urgent need is for governments to abandon urgency and return to the slow, steady business of governance. Good jurisprudence and government depend on a return to precedented times. As it is, too many governments are paying the mortgage on their extraordinary powers with the capital of their legitimacy. If they persist for much longer, some may begin to find that both have been spent.The Price of a Permanent Emergency | Graham Shearer | First Things