Too many Republicans will respond to Biden’s executively ordered vaccine mandate with a familiar, yet useless, bout of self-soothing. “It’s unconstitutional,” they will explain, “and will never hold up in a court of law.” The assumption may or may not be true in this particular case, but it rests on the faulty presupposition that American constitutional law remains somehow above or beyond the vicissitudes of progressive politics. In fact, it does not.
Instead, like every other legacy and institution in this country, constitutional law submits to a standard established in 1964 under the Civil Rights Act. In The Age of Entitlement, Christopher Caldwell makes the case that the Civil Rights Act of 1964 essentially amounted to a new founding, whereafter the doctrine of anti-discrimination would become the true operating principle for legal, legislative, and cultural activity in America. Of course, he is right.
The American theory of success, or of progress, is a measure of how well a given thing dovetails with, and further develops, the civil rights story. Civil rights is a narrative, but it is also an industry–and a regime.
The heart of civil rights, as legal procedure and cultural engine, is anti-discrimination. Of course, legally and otherwise, so called “anti-discrimination,” like anti-racism, is deeply discriminatory, as it cannot exist without the creation of categories of immutable protagonists and antagonists. “Anti-discrimination” is the act of recognizing distinction between groups, and establishing precedent as to which will be preferred over another. As it relates to the constitution, civil rights law exists to compel and dispel assembly and speech that fails to adequately comport with these manufactured narratives. None of this is consistent, of course, and that’s the point: the ruling ideology enjoys near total insulation from criticism. It sets its own rules.
It may seem, based on union precedent, that workers would be unquestionably protected from the kind of arbitrary termination mandated by the Biden administration’s new vaccine policy.
No. Republicans rely on precedent; Democrats set it. All liberals would need to do to overcome the old-school constitutional law is something they’ve already accomplished: create a category of people to be included among the protected categories (sexual orientation, race, gender, religion, or nationality). This new group, because of their perceived vulnerability, would serve as the justification for workplace vaccine mandates. Their narrative would conform more perfectly to the narrative that rules us. In other words, their victimhood would trump that of the worker.
We’ve been hearing about these future civil rights plaintiffs since March of 2020. They are the “immunocompromised.” It will be said, invoking the hollow yet menacing authority of “science,” that the existence of an unvaccinated person is an infringement on the right of the immunocompromised to his constitutional rights. If this sounds impossible, recall that the legal precedent for the arbitrary expansion of protected categories–legislated from the bench–was cemented in 2020 with the Supreme Court decision on Bostock v. Clayton County, where judges, across political lines, united to redefine “sex” to include “gender identity” and “sexual orientation.” For such a sleight of hand to become federal policy is not only not outside the realm of possibility; it’s a well-primed near-inevitability.
Of course, this is all an abstraction based on the prediction that vaccine mandate cases might ever reach trial. If legal proceedings must take place, conservatives should be the first to sue and set precedent, ensuring that unvaccinated people might enjoy protected status under the prevailing liberal standards: “Make the enemy live up to its own book of rules.” I’ll leave it to legal scholars to determine how they might outfox the fox. But in all likelihood, it may not even go that far. Just this year, Justice Amy Coney Barrett denied a request to block Indiana University’s vaccine mandate. Conformity to corona-tyranny transcends party. Everyone is captured.
Furthermore, Fortune 500 companies will submit by the mere suggestion of a mandate. It doesn’t have to be official or legal. It doesn’t even have to be real. For longer than a year now, Americans have been forced to accept total suspension of habeas corpus under the new coronavirus regime. So we already know from experience: most CEO’s simply need to see the story on television or hear it from their PR consultant that X, Y, or Z is the next step, and they will fall in line. As always, perception trumps reality.
The mainstream media’s steady barrage of apoplectic, apocalyptic news coverage has made it difficult to see when something truly pivotal has happened. Everything is a disaster, so nothing is. At the risk of sounding like those enemies of the people, I must conclude with all sincerity, without any irony: the Biden administration’s vaccine mandate is an existential threat to the American way of life. Now is not the time for passivity, fear, or excuse-making. Now is the time to gird your loins, stand your ground, and circle the wagons.
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