Governmental authority and the Covid-19 pandemic.

 

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.   (9^th 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 (10^th 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 21^st 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

The Balance between Liberty and Order

I awakened from the dream, knowing it was just a dream but feeling the intensity of the emotion that it produced in me. I was a policeman again, in a small office, in a small town with a couple of other officers when three people came in. They were strangers in town and as it turns out, they were activist/actors, on a mission to challenge law enforcement and to prove that police were enemies of freedom.  They had a story and each actor played their roles well.   I don’t remember what the pitch was, but in my dream, I recognized the play early in the performance and I, and the other officers, were on guard.  Other law enforcement professionals recognize the phenomenon; your mind is suddenly on alert from some subtle cue, and suddenly “things just don’t seem right”.  It’s hard to explain to the inexperienced, but it is a kind of intuition that operates deep in the subconscious. For the police, your life depends on this intuition.

The story told by the visitors was intended to cause the police to overreact and their plan was each of the “players” would be then be “mistreated” in some way that would engender sympathy and support for their “cause”. With a clarity not often present in dreams, I saw that each of these (two men and a woman) had a different view of just exactly where the line is drawn between civil order and individual freedom, but they all agreed that the status quo was too “extreme” in favor of social order and, in their view, too “hostile” to individual liberty. 

The details of the “play” are a bit fuzzy now, and probably unimportant anyway, but as I lay in the pre-dawn darkness, I was keenly aware that this dream reflected a deep truth that reflects a present reality in our culture.  There are people who understand and adapt to the notion that some individual freedom is voluntarily placed in subordination to maintain civil order based upon shared values. There are people who believe that the system favors order at the expense of liberty (in varying degrees). Then, there are those on the other hand who believe that excessive focus on liberty has threatened, and is destroying order (also, in varying degrees). The “activists” occupy the fringes at both ends of the spectrum. The three activists in my dream all felt that social order was oppressive and that the freedoms of the individual were insufficiently appreciated. I remember knowing in my dream that these actors did not all agree as to what a “perfect” society would look like but that their “mission” in life was to promote their view that police were the visible manifestation of all that was wrong with our government and our system of laws.

The dream played out with all three being arrested (which they intended) but in a different manner, and for different reasons than they had planned. The other officers and myself conducted ourselves in a manner that was completely unexpected by our “visitors” (as would happen when prior intel would permit the officers to inject an element not foreseen by the antagonists). Following some “dream-world drama”, and one of them nearly being killed in a “resist arrest” move, all three were “unarrested” after being “schooled” on philosophy and law. Some of my former students will nod knowingly, because they apprehend that this is “how I roll”. Even in my dreams (some might argue ONLY in my dreams) I am still “the professor”.

In my dream, as in real life, the failed “plan” of the activists, and the subsequent manner of arrest, and the fact that one of them was almost killed in the process, had unintended consequences.  The experience resulted in one of the actors having a complete change of heart and mind, the second one being seriously intellectually challenged as to his underlying philosophy, and the third one only hardening his heart and steeling his resolve to destroy the system;  One “win” for the good guys, one “loss”, and one “maybe”.

As I lay there deciding whether to get up or try to squeeze in another  hour of sleep, another recent memory came to mind that seemed to illustrate and underscore the philosophical content of the dream, and convince me to get up and write these thoughts down on paper. A couple of days earlier, I was on Watts Bar Lake in my 28’ sailboat with my good friend, a retired NYPD officer.  Eddie was at the helm as we motored back to the marina (the wind was calm so there was no sailing back) and I was viewing the distant shoreline through powerful binoculars. If I rested my elbows on the cabin roof, the vibration of the engine and movement of the boat on the water distorted my distant vision. Trying to eliminate all movement of my body by resting solidly on the boat only transmitted the minor (but distinct) movements to the binoculars, and as a consequence, the image of the far shore was too blurry to be useful.  But… if I stood steady on the deck, and let my brain allow my body to compensate for the movement of the boat, and absorb the vibration of the engine, then I was able to view distant objects with clarity. My body became the “buffer” between the dynamics of the boat moving through the water, and the static shoreline.

I think that the balance of order and liberty is like that. The “boat” is the firm foundation of the law, rooted in history, tradition, philosophy, and morality, and validated by the commitment of “we the people” to that morality and our traditions.  But history shows that even in the best of times, there are minor imperfections, and “vibrations” that are systemic. That is the “lake” that is life. It is dynamic, fluid, and powerful.  We try to navigate through the waters of life towards some distant objective that we know is there but that we cannot clearly see because of the instability of our situation.  We need a system to provide some steady, predictable, mechanism to get us over, across, and through, the waters but unless we are all “on board” we will not reach the destination. As individuals, we must remain flexible, and “give” a little to the demands of the water, and the realities of the boat, to get the clearest vision possible for the future safety and security for all.  The solution for clearer vision, and a safer journey is NOT to get out of (or to destroy) the boat!

In my dream, those three visitors saw “the boat” (the system of laws and government) as the natural enemy of individual liberty. The police were the visible representation of all that was wrong, and “oppressive” about the system. The visitors wanted to destroy the system in order to arrive at the same far distant shore as everybody else, but without the confining structure and limitations that the system inevitably requires. In the words of president Dwight D. Eisenhower, "A people that values its privileges above its principles soon loses both." Fundamental principles of liberty are balanced by fundamental principles of duty.  The system that was created and which we have struggled to maintain, is a balance between the maximum amount of individual liberty that can be achieved at the same time as the maximum amount of tolerance that must be extended to the “vibrations” of our civic duties and responsibilities. In the words of esteemed commentator and author Dr. Thomas Sowell, “"Tolerating imperfections is the price of freedom."

The media in the last few months has carried a number of stories of conflict between members of the public and the police, with whom some citizens feel a strong sense of anger and fear. The police likewise feel a sense of anger and fear at those citizens because we are caught in a classic “values conflict”.  The media capitalizes on the fear and anger by refusing (in many cases) to be “fair and balanced” in their presentation of the news. The result has been several police officers, and several citizens killed. In at least one recent case, it seems clear that there was an example of misuse of police authority and a blatant abuse of power.   In other cases, careful review has shown that the citizens acted in frenzied fury and out of (calculated?) misrepresentation of the facts. The issue for everyone is whether, or to the extent, that the machinery of government (the system) has pushed so hard for social order that it has lost all tolerance for the individual rights of the community. The “balance” between social order and individual freedom has been seriously compromised in some communities. The great danger is that such a condition, if handled poorly, will escalate to a national problem.  Every time the issue is approached from passion rather than reason, the players resemble those in my dream: someone with a personal “axe to grind” whose notions of individual liberty trump the necessity of lawful order. I fear that without wise leadership, and a deeper understanding of, and appreciation for, the dynamic tension between order and liberty, we will lose both. The “activists” need to acquiesce to the ruling of the majority as to our national (historic) values and the limitations of our tolerance of disorder.

-JAS- 2015