Let’s Be Clear About the Constitution

There is a lot of uncertainty about the coronavirus, and the everchanging statistics and projections that it produces.   Because there is no definitive “right answer” about what we should do, everyone has their own opinion about what we should or should not do. No one can really know what is correct.   That is fine.  What is not fine is that many people seem to have decided that, because there is uncertainty and no definitive answer,  they can simply create their own rules for themselves, disregarding their governors’ restrictions when they do not agree with those restrictions.  (Regarding the rule of law, see my previous post HERE).  

For some reason many seem to think that the Constitution provides them the right to make their own decisions to override legitimately imposed restrictions.  A common assertion at protests against pandemic orders is that the primary reason the Constitution was written was to restrain the government and that to constrain in any way the ability of the citizenry to individually choose how to interact in society is an unconstitutional attack on their “freedom.”  Similarly, there is the assertion that to impose limitations on behavior is some tyrannical form of unconstitutional oppression of individual rights and freedoms.

Nothing could be farther from the truth; such assertions reveal a complete misunderstanding the Constitution, the nature of the governors’ rights and obligations, and what is meant by freedom within our democratic republic. 

I am increasingly troubled by this widespread misunderstanding of our Constitution and our rights that has come to the surface during this pandemic.  Thus, I proceed here to provide a general overview to refresh our memories or to provide an introduction to further study.

First, the preamble to the constitution does not assert or imply that its purpose is to protect you from the government, or that you have the right to ignore laws you do not like, or do whatever you want.  Rather, it states, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Thus, the purposes, as stated within the document itself are:

               To form a more perfect Union;

               To establish Justice;

               To insure domestic Tranquility;

               To provide for the common defense;

               To promote the general Welfare;

               To secure the Blessings of Liberty to ourselves and our Posterity.

To let each of us do whatever we want without restraint is not included.

Now, looking at the document itself, it serves three main functions.  First, it creates a national government consisting of three branches (legislative, executive, judicial) and provides a system of checks and balances between the three.  Second, it divides power between the federal government and the states.  Third, it protects certain individual liberties of American citizens.

Elaborating slightly on these three functions, I would first note that the three branches of government are:  the executive power which is invested in the President; the legislative power which is given to Congress (House and Senate); and the judicial power which is vested in the Supreme Court and other federal courts created by Congress.  The system of checks and balances between these three branches avoids tyranny of any one branch.

Federalism addresses the second function of dividing power between the federal and state governments.  Powers not delegated to the federal government, nor prohibited to the states, are reserved to the states or to the people.  Those enumerated powers have been interpreted broadly, and, under the supremacy clause of the Constitution federal law is supreme over state law.   The Constitution also limits the powers of the states in relation to one another, such as limiting via the commerce clause the ability to regulate or tax commerce between states and prohibiting states via the privileges and immunities clause from discriminating against citizens of other states. 

The third function, protection of personal liberty of citizens, comes in part from the main body of the Constitution but more familiarly from the first ten amendments known as the Bill of Rights. These amendments were adopted shortly after the adoption of the Constitution itself, in response to states’ concerns about the Constitution’s lack of protections for individual rights.  The protections of these amendments were originally interpreted to apply only against the federal government, but the Supreme Court has since ruled that most of them were made applicable to the states by passage of the Fourteenth Amendment due process clause.  That Amendment also contains the equal protection clause, which protects citizens from discrimination by the states.

The Bill of Rights sets forth specific prohibitions on government power.  They are not a blanket grant to citizens to do what they please.  The bill of rights guarantees certain specific rights to the individual and the ninth amendment specifies that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  While the government may not generally infringe on these rights, they are not absolutely protected from all restriction. 

A law allegedly infringing on specific individual rights may be allowed if, after strict scrutiny, it is determined that the law or regulation is necessary to a compelling governmental interest, is narrowly tailored to achieve that compelling purpose, and is the least restrictive means to achieve the purpose.  Essentially, using this test, a constitutional right may be balanced against the government's interest against observance of that right. When such a regulation or its enforcement is challenged we see the operation of the three branches of government and their checks and balances come into play.

So, when a governor of a state enacts a rule which someone believes is unconstitutional, that regulation can be challenged and, using the above criteria may or may not be upheld.  There is nothing in the Constitution or elsewhere that says it is appropriate for an individual who disagrees with a regulation to simply disobey the rule.  That is nothing more than an act of anarchy.  And to assert that the Constitution gives one a right to be an anarchist is ridiculous, just as it is ridiculous for people to proclaim that it is their choice whether to go out or not rather than follow a governor’s stay at home or back to work orders. 

People who disagree with a governor’s orders or who agree with a violator of those orders are not “patriots” when they laud the violator.  These are often the same people who demand that sanctuary cities be penalized for not following the law or that or that sheriffs who do not enforce gun regulations be disciplined.  Yet here they are supporting disregard for or themselves disregarding legitimate pandemic orders.   True patriots would understand that you don’t just enforce laws with which you agree.  They would understand that the freedom we hold so dear in this country is not a freedom to do what ever one wants regardless of what the law requires.

These pandemic restrictions are not tyranny.  They are not destroying the Constitution.  They are simply controversial.  That controversy stems in part because there is so much uncertainty surrounding coronavirus and the many statistics and projections that it produces.  People are afraid of the unknown, so much uncertainty.  The fears are molded by such things as political positions, personal values, news sources and information about the virus and the economy, personal health and economic status, etc. 

With fear comes anger. With anger comes the desire to blame someone, because once you can blame someone for a problem then the problem is no longer really uncertain – it is under someone’s control.  Essentially, if we name the fear, we make it concrete and blamable.  Thus, perhaps, while the uncertainty of the virus itself cannot be removed, governors can be blamed for violating constitutional rights, thus creating a certainty that can be fixed. 

But such blame is false and cannot reverse the uncertainty of how to deal with a pandemic.  It cannot assuage fear.  It cannot provide a definitive answer to what is an uncertain future. It is based upon incomplete reading and faulty understanding of our Constitution and as such does not justify the behavior that it is being used to defend.

It’s fine to have an opinion about what one thinks is the best way to proceed in light of what we do and do not know about coronavirus.  We are going to disagree about that; that is perhaps the one certainty. But we cannot begin acting as if our individual opinions replace our rules of law, providing each of us with our own conflicting governing structures.

In the end, it doesn’t really matter whether we agree or disagree about what are the appropriate restrictions and back to work timelines in response to CoVid-19.  What matters is that the disagreement is shining a light on a far more serious disease that seems to be eroding the very core of our country: a serious lack of understanding of our Constitution and the governing principles that make our country the successful democracy that it is.  When we lose our understanding and respect for this core, we indeed lose our country.