COVID-19 VERSUS THE CONSTITUTION
There is much speculation about the aftermath of the COVID-19 pandemic.
How long will it take for the economy to recover? Will this forever change the social behavior of Americans? Is shaking hands a practice of the past? Is social distancing the way of the future?
However, there are far more profound questions that no one seems to be asking. Are we witnessing the permanent erosion of respect for the Constitution? Are we allowing government to exercise power beyond its constitutional boundaries without so much as a debate?
America is founded on the principle that freedom and fundamental rights do not come from government. They come from God. The Declaration of Independence sets forth the “self-evident” truth that all human beings “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The purpose of government is “to secure these rights.”
We all should be alarmed by the erosion of these God-given rights in the climate of the coronavirus. California Gov. Gavin Newsome, gleaming with satisfaction, said recently, “If you want to establish a framework of martial law, which is ultimate authority and enforcement, we have the capacity to do that.”
Is that true? Does he have “ultimate authority?” Not according to the Constitution. In our system of government, ultimate authority is in the hands of the people. “We the people” delegate a limited amount of that authority to our representatives. Our government leaders must act within those limitations, even during a national crisis.
According to Fox News, New York Mayor Bill de Blasio has threatened churches and synagogues with permanent closure. He said recently, "...to all those who are preparing for...religious services...: If you go to your synagogue, if you go to your church and attempt to hold services after having been told so often not to, our enforcement agents will...shut down those services, [and] take additional action up to the point of fines and potentially closing the building permanently." Permanently?
The First Amendment secures the right to freedom of religion. Is the mere declaration of a governor or mayor all that is needed to suspend that right? Have we allowed the Coronavirus to so erode our national character that no one raises a constitutional objection to a mayor threatening the permanent closure of houses of worship?
If our Constitution is cast aside in a time of national challenge, we’re no better than the nations that discard constitutions whenever they become inconvenient.
New York Gov. Andrew Cuomo said during one of his daily press briefings, “This is going to be transformative. We are never going to be the same again...When do we get back to normal? I don’t think we get back to normal. I think we get to a new normal.”
The constitutional implications of the statement could be horrendous. President Trump wisely issued “guidelines.” Governors and mayors however, have taken it upon themselves to turn these guidelines into orders. No elected governor has authority to give orders to citizens. Allowing elected officials to command the people who elected them subverts the very nature of representative government.
Democrat Governor Ralph Northam recently issued a stay-at-home order in Virginia lasting until June 10th, the day after the scheduled statewide Republican Primary. Even the most naive idealists find that suspicious. Violators face a possible year in jail and a $2,500 fine.
For his authority, he cited Article V, Section 7 of the Constitution of Virginia, and Section 44-146.17 of the Code of Virginia. Neither of those give him authority to do what he is doing. The only arguably relevant portion of Article V, Section 7, says, “The Governor shall be commander-in-chief of the armed forces of the Commonwealth and shall have power to embody such forces to repel invasion, suppress insurrection, and enforce the execution of the laws.” No reasonable interpretation of that provision gives the governor power to place citizens under what is effectively house arrest.
The statutory authority he cites, Section 44-146.17, delegates no such power. It says, “The Governor shall be Director of Emergency Management. He shall take such action from time to time as is necessary for the adequate promotion and coordination of state and local emergency services activities relating to the safety and welfare of the Commonwealth in time of disasters.”
This gives the governor the authority to promote and coordinate state and local emergency services, but nothing more. If this is supposed to be the basis for Governor Northam’s stay-at-home order, his actions are unlawful. Governors and mayors across the country are making the same egregious mistake.
The Fourteenth Amendment is one of the most important in the Bill of Rights: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
No governor, mayor or any other officeholder has the authority by mere edict to deprive citizens of liberty. Some employers have taken it upon themselves to give employees “papers” to prove to law enforcement that they have a right to travel. That conjures up images of the Soviet Union, Nazi Germany and South Africa during apartheid. Police have been ordered to go into churches to count the number of people gathered and threaten the pastor with arrest. The pastor of the River Church in Tampa, Florida, was indeed arrested on a Monday morning after holding services on Sunday. If this is allowed to stand, the Constitution is a dead letter for all practical purposes. Leadership requires persuasion. Dictatorship only requires the gun.
Self-government begins with the self. The American people are law abiding, courageous and self-sacrificing. That’s why there was massive volunteering after the Pearl Harbor and 911 attacks. We respond to duty, not dictates. We dare not allow hype and hysteria over the coronavirus to blind us to our essential national character as a land of liberty.
Ronald Reagan said, “Freedom is never more than one generation away from extinction...It must be fought for, protected...or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free.”
That remains true even during a pandemic, and we must never allow our elected officials to forget that they are our public servants. We do not work for them. They work for us. We give them their marching orders, not the other way around.
E.W Jackson is a nationally syndicated radio host on American Family Radio. He is founder & president of STAND [www.standamerica.us], Bishop and Senior Pastor of The Called Church (www.thecalled.org), and former Republican nominee for Lt. Governor of Virginia.