Governmental authority and the Covid-19 pandemic.
A question being asked, which deserves serious discussion,
is how much actual authority the state or federal government has to mandate
wearing masks or requiring healthy people to quarantine. My short treatise here is not exhaustive but it does approach the question from a
different perspective than that usually offering on mainstream media these days;
that of an “original intent” textualist
(ala A. Scalia). The presumption underlying
this point of view is that the Intent of the founders is knowable from the
text, the founders themselves through their writings, and the writings of their
contemporaries. Once we extract the basic principles, then consistent application
of those principles will yield uniform, predictable, decisions- now and in the future. From my studies, I believe that most
conservative constitutional scholars would agree with the following ten points:
(1)
The Declaration affirms that the vertical flow
of authority is from God, to man, to the state. Then from the states
collectively to the federal government.
With each delegation of authority, the scope of authority is diminished
because the grantor cannot grant more than he has. (i.e. the federal government can never wield
MORE authority than the states that created it, nor the states any more authority
than the people who created them.) It is not important what you or I believe
today about that, but that the founders believed it and they created a form of
government based upon those beliefs.
(2)
The Declaration of Independence operates like a corporate
charter: it defines the purpose of the organization. It is like the “birth certificate”
of the corporation.
(3)
The specific grant of authority to the federal
government is specified in Art 1, Sec. 8 of the U.S. Constitution. That authority is delegated by the states to
accomplish the purpose of the federal government, which is to (a) protect the God-given
[inalienable] rights of the people, and (b) to achieve the ends of justice.
(4)
Although certain rights are acknowledged in the Constitution
as belonging to the people, the rights of the people are not limited by the constitution. (9th Amendment). Since the presumption is that all rights are
God-given, those rights held by the people are consistent with the character and
nature of God. Again, what is key to
understanding the document is to understand the assumptions made by the
founders.
(5)
Specifically, ANY authority NOT specifically delegated
to the federal government, is explicitly and unequivocally retained by the
states and the people thereof (10th Amendment).
(6)
Although many people today are apparently
clueless as to how to recognize the character and Nature of God, and thus the
nature of the rights of the people, and the duty of government to protect those
rights, it was more clear (or
universally understood) by the founders.
These principles are of paramount importance in extracting principles of
government from the collective writings of the founders and their
contemporaries. Constitutional interpretation must presume the beliefs of the
framers and not try overlay 21st century values and norms in the
interpretation of the document.
(7)
The founders understood that all individual
rights can only be understood and applied in the broader context of their
duties to social order. Individual rights and public duty are two sides of the
same coin. (See Jefferson’s letter to
the Danbury Baptists, 1803, where this principle is explicitly and
unambiguously stated)
(8)
The Constitution presumes lawfulness. It is a
responsibility, then, to obey the law. For those who do not, there are
protections, but the presumption of lawfulness is apparent. As a corollary thought,
self-government can ONLY work when the governed are, to a high degree,
self-disciplined.
(9)
A multitude of court cases since Jefferson’s
Danbury letter (1803) have affirmed the principle that in an emergency, public
order creates a public duty which protects the public order, without which no
individual liberties could be sustained. Sometimes, the Court has supported the
extension of individual rights, while at other times, it has ruled in favor of limiting
individual rights in order to promote public safety.
(10) Article II, which vests
the Executive Power in the President, also specifically makes him Commander in
Chief of the army and navy, as well as of the militia when called into actual
federal service(§ 2), and charges him, among other things, with taking care
that the laws be faithfully executed (§ 3).In addition to these allocations of
responsibility to particular branches of the federal government, the
Constitution contains one other empowering provision relating to similar
circumstances, namely Article IV § 4, the so-called "guaranty
clause", which calls on the federal government not only to guarantee to
every state a republican form of government, but also to protect it against
invasion and (when asked) domestic violence. ( https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1417&context=facpubs )
While public health powers were originally both state and
federal, a dispute arose between these powers when the federal government took
a more active role in regulating quarantine. The federal government lost the
conflict and "[t]oday, states are primarily responsible for the exercise
of public health powers." (Joseph Barbera et al., Large-Scale Quarantine
Following Biological Terrorism in the United States: Scientific Examination,
Logistic and Legal Limits, and Possible Consequences, 286 JAMA 2711, 2712
(2005). )
From my reading, the federal authority for emergency action/intervention is
limited to matters of (or related to ) military action, including specifically
terrorism. The level of government authorized to respond to matters of medicine
or public health are the domain of the state governments.
Quarantine, and the other extreme measures associated with
the Covid-19 virus, would considered some of the “tools” at the disposal of
State governments in an actual emergency. Quarantine is a severe measure that
is not to be used for every new manifestation of virus, but rather for extreme
outbreaks of especially contagious diseases.
This being such an extreme measure and a severe burden on individual
liberty, such an order would require a reasonable, evidence-based conclusion of
the “especially contagious” nature of the disease in question. Invoking
quarantine for less than something “especially contagious” and life-threatening
for large percentages of the population, would be a of serious overreach of
authority. The “authority” of
government in such a case is conditioned upon the severity of the emergency. A
claim of emergency, when no actual emergency exists, would legitimize
(invalidate) the use of power to enforce the illegitimate orders/actions of
government.
CONCLUSION:
The law seems clear to me.
There is no federal emergency power to declare what members of public
must do in a pandemic. Of course they are free to announce suggestions, and
provide research and support for a quick resolution and a medical solution.
State executives may announce quarantines and other actions the public must
obey to respond to an actual emergency situation. Absent clear evidence, and
particularly when the “emergency” is so clearly politicized, the state does NOT
have authority to mandate quarantine, order that masks be worn, shut down
businesses, or otherwise interfere with commerce and free trade. I do not find authority to act “preemptively”
just in case an emergency MIGHT materialize.
My two cents. I hope it promotes intellectual discussion.
John Sterling, MA, JD
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