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.
No comments:
Post a Comment