– April 30, 2020
constitution

The genius of the U.S. Constitution is that the Framers, especially James Madison and Alexander Hamilton, saw it as a constraint on bad policymaking. Given the number of really bad policies that various US governments and officials, from school boards to POTUS, have implemented, especially recently, it is high time to restore weakened or lost Constitutional restraints against arbitrary rule.

Five forces threaten Americans with destruction: 1) nature; 2) foreign powers; 3) the national government; 4) state and local governments; 5) themselves. The threat from 3, 4, and 5 is double-edged, meaning that Americans can be harmed by the actions of those forces as well as by their inaction.

The national government, for example, can harm Americans by being insufficiently prepared for natural catastrophes and foreign incursions, as with Hurricanes Katrina and Rita and the 9/11 attacks. It can also harm Americans, though, by doing too much, as with the invasion of Iraq and the way-too-long occupation of Afghanistan. (Relying too much on FEMA instead of states or private initiatives may be another example, but less clear cut than the needless wars.)

The national and state governments are supposed to check each other’s power, so that if one overreaches, the other can thwart it. We usually think about this in terms of “states’ rights” but in fact federalism, as the concept is sometimes called, runs both ways: the states should check the national government when necessary but the national government should also check the power of the states when they overreach, as they sometimes do.

Advocates of states’ rights often cite the Tenth Amendment, which reads in its entirety “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Because the word “expressly” does not occur before “delegated” in the ratified version of the amendment, however, it is among the weakest parts of the Constitution.

Traditionally, though, the states retained primary control of so-called “police powers,” the powers that form the legal basis for the economic lockdowns that have imprisoned most Americans for over a month now. Books have been written about this stuff so obviously I cannot relate all the details and nuances involved but ultimately they matter little in the present case. The key point is that police powers, national, state, or local, do not provide carte blanche to governments. Specifically, the Constitution constrains state police powers in numerous ways.

Importantly, courts see Constitutional rights as tradeoffs between conflicting interests. So while the Constitution says that the national and state governments cannot infringe individual speech rights, they can pass laws that make it illegal for an individual, for example, to falsely yell “fire” in a crowded theater. The notion is that the property and natural rights of the theatergoers trump the free speech rights of the liar.

Similar restrictions apply to the right of assembly. All Americans have the right to assemble with other Americans for any lawful purpose but state police powers, the positive duty of states to protect the physical safety of assemblers and non-assemblers, mean that governments may restrict assemblies through permit systems.

Similar arguments are made to defend the pistol permit systems common in many states. They are bogus but show how far courts go to balance one person’s rights with those of others. If you believe that gun control laws should be followed because they are laws passed by democratically elected representatives you have missed the point of the Constitution, which, again, is to constrain policymakers, to protect individual Americans from the national and state governments and also other Americans.

Just because a majority wants some policy doesn’t mean that that policy is a good idea, after all. I imagine at one point in March 2020 a majority of Americans might have thought it a good idea to deport, tax, infect, or maybe even kill Chinese-Americans in order to make “them” pay for what “they” did to “us.” (I don’t want to link to evidence of that … just look at your social media feeds if you need evidence.) That is a typically ugly human reaction to trauma but one that would have been proven empirically wrong as well as morally bankrupt and economically inane (sunk costs). Thankfully, the Constitution remained strong enough to prevent that horror.

It did not, however, prove strong enough to prevent state governments from taking their police powers too far. They engaged in fancy word play to hide the fact that they acted without a shred of precedent. What they imposed is not a quarantine, which constrains the movement of sick people, nor a cordon sanitaire, which locks people into an afflicted area, nor a protective sequestration, which locks people out of an unafflicted area. Instead, they have implemented partial martial law (military rule essentially) by imprisoning Americans in their own homes without due process of law and stolen their property by shuttering their businesses. (Some recompense has been attempted but of course only bluntly and at a cost to all taxpayers, including those in states that did not shutter most businesses.)

Remember, just because a state has general police powers doesn’t mean it can do whatever it wants, whenever it wants, simply because its actions are popular, or passed into law, or urged by some scientist. Imagine, for example, if some executive thought everyone ought to drink bleach, crazy as that seems, and actually mandated it. Would you do it? (Hint: Don’t do it! Even if some guy in a suit or lab coat tells you that you must.) What if some leader believed that the coronavirus is spread primarily by clothing and mandated that we all go naked in public, except for our masks and gloves of course? Or if one thought an EMP (electromagnetic pulse) would solve the problem (and destroy all computers in the process)?

Any promulgation that violates the Constitution, in any way, shape, or form, is null and void. A federal judge has the authority to declare any state law or executive order unconstitutional and demand that it be revoked. Judges generally give governments broad leeway to protect “public health” but the policies must be rational and they must weigh the rights of all involved parties. Historically, many government epidemic responses never got litigated because the crises passed before suits could be brought and because quarantines, cordons, and sequestrations can make rational sense in specific situations. But, again, state governments for some reason have tried to combat the novel coronavirus with novel policies that come with huge negative side effects for everyone — workers, consumers, and taxpayers — and that have and will continue to cause deaths, minimization of which is the ostensible goal of lockdown policies.

Why draconian lockdown rules have not yet been deemed unconstitutional I still do not know, but the fact that a former federal judge who teaches at Harvard apparently does not know the difference between a quarantine and a lockdown might provide a clue. Another clue might come from the fact that the courts, like the rest of the country, are run by the people most at risk of dying from COVID-19. But at least lawsuits have finally begun to be filed in significant numbers

Once a federal court (especially SCOTUS, from which there is no appeal) declares a law unconstitutional, as SCOTUS has often done to state laws throughout US history, the political dynamic changes dramatically. States must comply or face that other side of federalism, where the U.S. government has the duty to protect American citizens from their own state governments under the 14th Amendment, one of the Constitution’s strongest.

The national government has intervened before, most dramatically during the Civil War, but as recently as the Civil Rights Movement. In 1957, President Dwight D. Eisenhower federalized the National Guard of Arkansas in order to enforce federal court rulings in Little Rock. Arkansas duly passed laws, highly popular laws, mandating the “social distancing” of people with different skin tones, but that did not matter because the federal government has to weigh all the Constitutional rights of all Americans. No matter what.

Similarly, President Lyndon B. Johnson federalized the Alabama National Guard in 1965 to protect peaceful protestors marching from Selma to Montgomery from Alabama state troopers. No joke, look it up.

Federalization of state military forces has plenty of precedent: Trump has already federalized some national guard units to help with coronavirus relief efforts in Washington, California, and New York (not to enforce lockdowns) and to “protect” the southern border, something that every president since Ronald Reagan, including President Barack Obama, has done. Richard Nixon federalized some units too, in 1970 in response to a US postal strike. President George Washington himself led federalized militia troops to put down a federal tax rebellion in western Pennsylvania in 1794.

If National Guard troops refused to follow the President’s orders, things could get ugly very quickly but hopefully matters will not come to that. After all, nobody (yet) wants to drag people from their homes, only to allow those who wish to engage in lawful commercial intercourse to do so, just like those students in Little Rock only wanted an equal education and those marchers simply wanted to exercise their First Amendment rights.

In a sense, then, Trump was right when he claimed that he has the authority to force states to re-open their economies, provided a federal judge declares state lockdowns unconstitutional and state governments refuse to comply with his or her order. 

In that scenario, the Constitution itself can be blamed for causing a spike in COVID-19 deaths should one occur after reopening. We will not be trading off lives for lucre at that point, we will be trading off lives for liberty, just as I argued at the outset of the crisis. Now, let a politician say that we must give up the Constitution to save one life. I dare him or her!

Robert E. Wright

Robert E. Wright

Robert E. Wright is the (co)author or (co)editor of over two dozen major books, book series, and edited collections, including AIER’s Financial Exclusion (2019). Robert has taught business, economics, and policy courses at Augustana University, NYU’s Stern School of Business, Temple University, the University of Virginia, and elsewhere since taking his Ph.D. in History from SUNY Buffalo in 1997.

Get notified of new articles from Robert E. Wright and AIER.