We are a power society not a rights society

As such, we almost instinctively and correctly understand that rights are not absolute. What we do not seem to instinctively grasp is that power too is not absolute.

Thus, whenever there is a collision between rights and power, our natural refrain is to side with power and we are heard chanting that “rules are rules” as if rights are not rights.

We must refocus and rethink. Power is not absolute and it cannot always trump rights.

If we want a limited government, as espoused in the Constitution, we must reset and accept that rights trump power and not the other way round.

That philosophical orientation does not mean power cannot interfere with rights but it means that such interference must be justified, with the degree of justification increasing in the fundamentality of the right.

In simpler terms, a government agency cannot interfere with rights unless the agency has articulated an important objective that would be clearly undermined by the operation of the right.

Consider the right to exercise our religious liberty that has been recently interfered with by the government’s imposition of social distancing rules.

To analyze the restriction, we proceed by asking what is the government’s objective in imposing the restrictions; is the objective important; would the objective be clearly undermined by the operation of the right; are there any alternative measures that government can take other than the restriction.

In this case, we answer

(1) government’s objective is to ensure our safety and save lives;

(2) saving our lives is important;

(3) yes, the objective will be clearly undermined if the right is not restricted;

(4) government cannot pursue its objectives in other ways.

We then say the government is permitted to interfere with our religious liberty under those circumstances.

Consider a second government restriction on the style of your hair in a public school that interferes with the right to enjoy your religious liberty.

Saying rules are rules is an improper analysis unless we want a powerful society rather than a rights society, in which case we must suspend the Constitution and go back to the illiberal or military days of yore.

Rather, we do our 4-tier analysis as follows:

1. Government’s objective is to control the appearance and to enhance discipline.

2. Yes, these are important objectives.

3. No, the objectives would not be clearly undermined by allowing the right to operate. There is no rational relationship between one’s hairstyle and appearance, much less with discipline.

4. There are multiple alternative ways for the government to achieve its appearance and discipline objectives that do not interfere with religious liberty.

The analysis suggests the restriction is impermissible!

Same facts, except now assume there is some epidemic wherein exposure of the scalp creates some health risk.

Public schools enact a rule on the hairstyle that interferes with religious liberty. In this instance, the interference may very well be permissible under the 4-tiered test.

GOGO will replace the “rules are rules” mentality with the “rules must serve an important objective” mindset.

#SALL is the cardinal sin of the 8th Parliament. SALL can happen in a powerful society but not in a rights society.

Da Yie!