In any policy debate, one might ask two essential questions: What should the policy be? And who should be making it? At a crisis point or in an emergency, the former question is paramount, but the longer the trial goes on, the more relevant the latter question becomes. In a well-designed constitution, the question of who makes policy is decided with an eye toward making good policy. But I fear we have forgotten the central element of our own constitutional design: the place of the legislature.

The root of the word “emergency” is “emergent,” meaning a newly arising situation. And during an emergency, the urgency of the “emergent” situation means that there simply isn’t time to go through standard procedures. Think of President Lincoln suspending habeas corpus to ensure troop trains could make it through Maryland to protect Washington DC at the start of the Civil War. The Constitution places the power to suspend habeas corpus in Article I, the legislative power. Yet Congress was not in session when the war began, and President Lincoln felt obliged to act immediately. Scholars are still debating if his response was prudent and legal or if it was a serious violation of the Constitution. But that is, literally, an academic debate now.

What about Covid policy? Who should be making it? At first, it was reasonable, even inevitable, that executives, deferring to advice from the government’s experts, would make policy. That was the case even though the experts were themselves guessing. The virus being “novel,” there really wasn’t much expertise to be had. But by now, with nearly two years of Covid and Covid policymaking under our belts, science is starting to generate knowledge (although serious questions remain). That means it is time for our legislatures to step up.

Legislatures, Executives, and Experts

Why the legislature? Why not the executive or elite bureaucrats like Anthony Fauci? Fauci is, after all, the official top expert. The job of experts in a democratic republic, however, is to advise those we elect, and not to set policy themselves. Otherwise, we have switched from a democracy to a technocracy. As for the President, his job is to execute, that is, to do. As President Grant once remarked, “I think I am a verb.” Or, as Henry Adams said of Theodore Roosevelt, he “showed the singular primitive quality that belongs to ultimate matter—the quality that mediæval theology assigned to God—he was pure act.” God would, of course, act with pure wisdom. Not so among we mortals. And in our system of checks and balances, the legislature is the locus of deliberation.

In this context, it is important to note that the executive is not, by nature, a deliberative office. The reason why we separate powers, and why we check and balance them is, in part, to try to force politicians to do the hard work that policy-making requires. It is much easier to defer to someone who is or who claims to be an expert and avoid responsibility. And experts, given such a role, have a tendency to claim more knowledge than they actually have. Checks and balances are, in part, designed to block such maneuvers. And in our system of checks and balances, public policy is to be made in the legislature.

In contrast to the executive, the legislature is designed to reflect the people at a deeper level than any individual can. In his 1776 pamphlet “Thoughts on Government,” which Gordon Wood calls “the most influential work” guiding the framing of the state constitutions after 1776, John Adams noted that the legislature “should be in miniature, an exact portrait of the people at large. It should think, feel, reason, and act like them.” Why was that? A good legislature, like a good polling sample, reflects the people as they are, so that public policy can reflect the wishes and needs of the people. As the people seldom have full knowledge of a given situation, its job is often to ensure that the full range of public opinion has the ability to react to a more informed understanding. The deliberative aspect grows out of the discussion, argument, and debates that take place in the legislative chambers.

If the people making laws are not reflective of the people as a whole, they are likely to misunderstand the impact their policies will have on parts of the population, and misjudge the nature of the policy as it is likely to be implemented. The result is often bad policy and/or policy that seems to favor some groups over others without justification. As time passes, is the risk of flying without a mask worth the benefit in comfort and social interaction? That’s a question better addressed by the citizens we elect to make law than it is by any one scientist or group of scientists. And they might decide, as time passes, that it’s a choice best left to each airline. A scientist can help us understand the relative risks, but science cannot tell us what is a reasonable risk, for that kind of reason, prudential judgment, is not amenable to the scientific method.

It is also the case that no single individual is likely to see the impact any given policy will have across a large, diverse population. We have a legislature, and not an elected dictator, because no one person can truly represent everyone. Recall in this context George McGovern’s lament, after he retired from the Senate and was trying to run a hotel: “I also wish that during the years I was in public office, I had had this firsthand experience about the difficulties business people face every day. That knowledge would have made me a better U.S. senator and a more understanding presidential contender.” There is almost certainly a parallel to be drawn between McGovern’s realization about the limits of his senatorial wisdom and the reality that Covid policy hit small business particularly hard.

What is true of individual senators is emphatically true of governors, presidents, and elite bureaucrats. The point of view of small businesses and independent contractors is the one least likely to be taken into consideration by the technocrats who have been setting Covid policy. Likewise, governors have much more interaction with big businessmen than with small. Similarly, the relative value and difficulty of Zoom schooling might have looked very different to bureaucrats and governors than it did to state legislators and city council members getting earfuls of feedback from their constituents.

Facts, Scientific and Political

Open public discussion might even help clarify what science does and does not know about any given problem. In an emergent situation like a “novel” virus, even scientists will be guessing. Which ones should we listen to? And if they are guessing, how closely should we follow their advice? Any given scientist, however well-meaning, and however much experience he has, is likely to have biases. It is also unlikely that the specific scientist in charge of our response, however expert he might be in one or two subfields, is, in fact, an expert in the subfield relevant to a given emergency. He will, therefore, be trusting the judgment of others, rather than relying on his own expertise. Alternatively, he might be reading the data himself, but doing so with less expert judgment than those who study the particular subfield full time.

Recall in this context how Dr. Fauci went out of his way to brand the distinguished scientists from Harvard, Oxford, and Stanford who signed the “Great Barrington Declaration” as “fringe scientists.” They recommended, as the Wall Street Journal notes, “focused protection” of those at high risk to the disease, as opposed to more general lockdowns. Their policy judgment may or may not have been correct, but their views were hardly “fringe.” What they were, however, was outside the Washington consensus that Fauci and the bureaucracy he represented supported. That consensus would seem more authoritative in public if it were the case that only “fringe” scientists disagreed with it. In other words, calling them “fringe” was a political not a scientific judgment. Yet Fauci is paid for his scientific not his political knowledge and judgment.

The trouble with technocracy is that it is never merely technical; anyone in high office must be political. That’s the basic contradiction at the heart of technocracy. Recall in this context that “scientific consensus” is not a tool of the scientific method. We do not decide what science recommends by counting the votes of scientists. Moreover, the skillset likely to put someone at the top of a technical bureaucracy—scientific knowledge and skill at bureaucratic infighting—are not necessarily connected with political wisdom or with good policy judgment. In a recent essay, Matt Welch notes that Francis Collins, the outgoing Director of the National Institutes of Health made a revealing concession: “Boy,” he noted “there are things about human behavior that I don’t think we had invested enough into understanding.'” It’s unkind to say, but nonetheless true, that someone who is so easily surprised by human behavior ought not to be making public policy.

We do not train scientists in the study of American culture and human nature. And good Covid policy is made when science meets precisely the junction of those two things. In other words, scientists are often poorly suited for policymaking.

Despite that reality, many Americans, it seems, have grown comfortable with the idea of letting technocrats set policy that way, and they are uncomfortable with a restoration of a more vigorous role for the legislative branch. Indeed, a turn to the legislature seems strange to many of us. “You’re going to trust those idiots with health policy?” Today, we tend to think that the common citizen cannot be expected to be a reasonable creature, nor his representatives a safe depository of authority.

The turn from rule by legislation to rule by technocrats is perhaps the most undemocratic tendency in our politics. It is, so to speak, the part of the iceberg that is below the waterline. The rise of “populism,” the mass protests against persons, property, and public buildings (from Court Houses to the Capitol), and other like actions in our country are, in part, a reaction to that antidemocratic turn. If we the people don’t see our views reflected in public deliberations and in public policy, we are on the road back to life before 1776, when mass demonstrations, including violent ones, were the only method to make sure one was heard.

It is important to remember that public opinion is a political fact. Whatever opinion happens to be, however rational or irrational it is, effective government, unless it is tyrannical, must work with it. It must begin where the people are and, insofar as their opinion allows it, implement the kind of policy a nation of thoughtful, disinterested, virtuous people would. Moreover, public policy, over the long term, must take into account aspects of human life that are not susceptible to scientific answers. Unfortunately, technocrats often try to treat citizens as if they are so many pieces of metal, to be bent into whatever shape they think science demands, frustrated with the reality that humans are, well, human. Sometimes, assuming that non-scientists are too stupid to understand nuanced advice, it seems they think it best to lie or exaggerate in order to try to manipulate public opinion. The perverse result is that the public reacts in kind, creating a cycle of distrust and overcompensation.

In short, a return to legislative policy-making would be progress back toward democracy, and perhaps, at the same time, point us back toward a more peaceful mode of politics. One of the reasons to create the kind legislature Adams described was, after all, peace. When a government fundamentally does not understand the people it is governing, violence is the common result, as history demonstrates. When as many sub-cultures and factions as possible have their say, it is more likely to produce a consensus in favor of the existing order. And the founders created a federal republic, as opposed to a consolidated one, partly because it allowed for public policy to meet people where they are, culturally speaking. 

Consider the recent Supreme Court ruling on the Biden administration’s attempt to impose a vaccine mandate on businesses. The Court did not rule that the federal government may not impose such a mandate. They ruled rather that under the current OSHA statute, the bureaucracy may not apply such a mandate. If Congress wishes to change the statute to cover such a case, it is free to do so. Or, perhaps, that kind of police power would only belong to the states, in which case the people’s state representatives could impose a measure. That so many influential people don’t seem to recognize the distinction between bureaucratically imposed and representatively imposed regulations shows how far the undemocratic trend has gone.

The U.S. Constitution made the legislature Article I for a reason. It was the to be the prime mover in the government under the Constitution. As the Covid era continues, for the sake of better policy and a better politics, it is well past time for public policy to be made democratically.