The most beautiful thing about a constitution is that it establishes boundaries for those wielding power to abide by. A constitution is what establishes some semblance of legitimacy because, without guaranteed limits on power, what are politicians but egotistical thugs? Even if such powers are democratically granted, without limits on the powers of the majority it is essentially mob rule.
The text of the US Constitution lists a number of important guidelines on power and many of the later additions, or amendments, were added in response to the grievances the authors had at the time. The document itself was made with the assumption that we are endowed by virtue of our humanity with certain inalienable rights that are inherent to our humanity, amongst them are life, liberty, and the pursuit of happiness, albeit it only lists a select few of those rights. The written Constitution expresses the immediate concerns of the people who wrote it. The Declaration of Independence with its long list of grievances against the King of England inspired the restrictions on government power outlined in the US Constitution.
The text of the US Constitution and by extension state constitutions, although bulwarks against tyranny, are reactive documents that require constant updating as new problems arise. For example, the 14th Amendment was ratified in 1868 after the Civil War and prevented individual states from infringing on the privileges and immunities of individual citizens granted by the US government. This was primarily made to ensure that Black Americans were treated as full and equal citizens by every state, not just the anti-slavery ones.
If you have paid attention at all to how governments have acted during the age of Covid-19 and lockdowns you should be able to guess where I am going with this. The time has come for a movement across the nation to demand constitutional restrictions on the powers that have enabled governors across the country to unleash so much havoc on society.
The Context for Anti-Lockdown Amendments
Under lockdowns, we have seen some of the most arbitrary, offensive, and ignorant exercises of power that have not only wrecked the economy but stained the notion of a free society and undermined the rule of law.
Supreme Court Justice Neil Gorsuch writes in a court opinion regarding New York Governor Cuomo’s restrictions on church gatherings when he notes,
“At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?”
In Michigan, it was reported by Forbes that the governor imposed a ban on selling gardening equipment. The stores could remain open, they just had to rope off the sections to prevent access to things like seeds and rakes. It goes without saying that these are silly examples of what governors have done with their emergency powers and the lockdowns they unleashed.
Two weeks to flatten the curve turned into one year and a nation undone. Lives and dreams have been crushed under the boot of lockdowns, which have proven to have done little to stop the virus. According to a Yelp survey, 60 percent of polled businesses will never reopen. For young people, suicides skyrocketed and surpassed Covid-related deaths. With much of the country beginning to open up and shattering the predictions of impending Covid doomsday sayers, the time has come to enact structural change to ensure this never happens again.
What Would Anti-Lockdown Amendments Look Like?
If you were wondering how governors across the country could issue draconian policies such as stay at home orders, “nonessential” business closures, and mask mandates that seemingly violate everything in the Constitution it’s because of emergency powers. Emergency powers, generally speaking, give the government the power to violate individual rights and ignore certain procedural hurdles to respond to crisis situations. They are such an important but dangerous tool that we have now personally witnessed how flawed our constitutional framework is in regulating their use.
The Maine Policy Institute has created an interactive scorecard detailing the rules governing the use of emergency powers in states across the country. Ideally, such powers should have a clear and robust framework for their use. An ideal framework should require legislative approval and not merely allow the governor to declare a state of emergency at will. The timeline to do so should have reasonable deadlines and limits on how much a governor can do given the context of the emergency. States of emergency should be brief and require ongoing legislative approval to continue with mandatory deadlines for their cancellation in the absence of legislative approval. There should also be clear restrictions on the use of these powers depending on what can be justified and efficient avenues for challenges to be brought. Sadly most states have inadequate constitutional frameworks for the use of emergency powers, which is exactly why we are where we are.
According to the Maine Policy Institute,
“Vermont, Washington, Ohio and Hawaii are among the worst-ranking states because they bestow on their governors the sole authority to determine when and where an emergency exists, and when an emergency ceases to exist. Nearly one-in-four states have this arrangement.”
Nick Murray from the Maine Policy Institute writes in the Maine Wire that,
“At the time most of these state laws were constructed, few could have predicted they would be used to micromanage every interaction within society in the face of a pandemic. Indeed, most of these laws were established to help states respond to a natural disaster or terrorist attack, not a public-health matter like COVID-19.”
He also references a report from the Pacific Legal Foundation that recommends that executive orders should be required to be narrowly tailored and legal challenges to those orders should receive an expedited judicial review. Such a reform would be essential in preventing governors from arbitrarily closing businesses and imposing odd restrictions on society without rigorous scientific backing. The expedited judicial review will allow citizens to get their day in court in a timely manner to challenge such orders if they feel they have been wronged.
The summary of recommendations in the report are as follows:
- Require emergency orders to be narrowly tailored.
- Subject emergency orders to expedited judicial review.
- Only governors may issue a statewide emergency order that infringes on constitutional rights. (Pertaining to unelected public health officials issuing orders rather than elected officials)
- Sunset emergency orders in seven days if the legislature is not in session or called into session.
- Sunset emergency orders in 30 days if the legislature does not ratify the order.
- Allow remote participation for legislators to debate and vote on emergency orders.
- Prohibit governors from reissuing emergency orders that expired or the legislature rejected.
All of these reforms would make the use of emergency powers less arbitrary and prevent unhinged exercises of authority.
Fortunately, Murray notes,
“At least 16 states (Alabama, Arizona, Idaho, Indiana, Kentucky, Maine, Maryland, Minnesota, Montana, New Hampshire, New Mexico, North Dakota, Pennsylvania, South Carolina, Utah, and Washington) have pending legislation to reform emergency executive power. Elected officials in other states, including New York, North Carolina, Texas, and West Virginia have signaled that they will submit legislation on the issue. And lawmakers in Michigan, Missouri, and Ohio are actively debating bills that deal directly with their governor’s existing COVID-19-related orders.”
The use of emergency powers along with the alarming ease at which they can be accessed and maintained is a problem that extends far beyond Covid-19. In their current state, they are like exposed gunpowder just waiting for a loose spark to ignite disaster.
The Founders crafted the Constitution in direct response to the injustices they faced under the King of England. Throughout the life of our republic, numerous amendments were introduced in response to pressing issues that exposed shortcomings in the framework of our government that exists to protect our freedom.
Regardless of your stance on lockdowns, they have shown us all the glaring threat to our democracy that exists in the absence of adequate constitutional restrictions on emergency powers. Covid-19 exposed what governors could do in the absence of strong reforms. Without swift and deliberate action there will be another episode of drunken power grabs under the guise of a different threat in the not-too-distant future. The time is now for universal sobriety on this matter and for freedom-loving citizens across the country to rise up and say: never again.