Are coronavirus lockdowns running into the Constitution?

By Edward Achorn

History shows us — and the coronavirus episode has confirmed — that constitutional rights have no force unless the people get behind them.

For these rights to function, politicians must uphold the Constitution, which they take an oath to defend as a requirement for assuming the powers of office.

In addition, courts must sometimes be called into action, and then adjudicate in favor of constitutional protections.

Most of all, Americans must jealousy guard their rights if they hope to retain them.

In a time when public safety is gravely threatened, we may willingly set aside our liberties. For most people, that was the case in the initial weeks of the coronavirus crisis, when authorities feared our medical system would be overwhelmed with COVID-19 victims.

Governors issued edicts, under temporary and limited powers granted them for extreme emergencies, such as nuclear war or devastating hurricanes that destroy public infrastructure.

But now, after weeks have passed and fears of the hospital crisis have abated, many governors seem to be exceeding these limits under our system of government.

They have continued to issue orders without reference to the rule of law or constitutional liberties. Calls for voluntary cooperation by the people have morphed into often arbitrary edicts enforced by the brute power of police and courts. (This store is “essential,” that store is not; selling lottery tickets is “essential,” dispensing blessed palms on Palm Sunday is not, even using safety precautions; liquor stores are “essential,” hair salons are not; wearing masks is a no-no one day, and required the next under the penalty of arrest; five people may gather but six may not, etc.)

Many Americans today seem utterly unaware of their system of self-government, and why it exists. We have employed a complex structure over the centuries for the specific purpose of dividing and frustrating power. The idea is to keep power in the hands of the people, protecting their interests against authorities who, being human, have a natural lust for power.

Beyond their narrow emergency powers, governors may act constitutionally only under the cloak of laws that were passed by the people’s representatives in the legislature, often after intensive scrutiny and public debate.

Orders to shut down all summer activities in a state whose businesses are heavily dependent on tourism, for example, should not be made arbitrarily by a single person. Rather, under our system, such decisions should be made by the community and its representatives, arrived at after discussion and, one hopes, a serious analysis of the cost vs. the benefit.

Such divided government encourages authorities to leave many decisions in the hands of the people, trusting that they can govern themselves.

In recent days, some of these ideas have begun to filter back into public consciousness.

On April, 27, Attorney General William Barr announced he is directing U.S. attorneys to “be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.” As he noted, “the Constitution is not suspended in times of crisis.”

Meanwhile, state supreme courts in Wisconsin and Texas have stepped in and struck down unconstitutional edicts by authorities.

In my own back yard, former Rhode Island Supreme Court Justice Robert Flanders has co-written a fascinating paper questioning the constitutionality of many of the actions taken by Governor Gina Raimondo. It could form the basis for legal action by local businesses that want to get back to work.

Perhaps the most interesting section involves the question of “takings.” Are states, even in an attempt to control the spread of a deadly virus, permitted to deprive people of their right to run their businesses — without compensation?

“Much of the economic harm from the Governor’s stay-at-home orders and orders closing ‘nonessential’ businesses has been focused on Rhode Island’s small and medium-sized businesses, while big-box retailers that have also stocked items found in ‘nonessential’ retailers were permitted to continue to operate,” the paper notes.

“Thus, for example, Target reported a 20 percent increase in same-store sales while mom-and-pop retailers or restaurateurs were shuttered. A successful takings claim by these mom-and-pop operations could find a basis in either federal or state law. The Fifth Amendment to the United States Constitution prohibits the government from taking private property ‘for public use, without just compensation.’”

A dawning realization of the potentially catastrophic cost to states of such edicts may force governors and legislatures at some point to bring the people — including their varied opinions and interests — back into the business of American government.

(Edward Achorn is the author of three acclaimed books about American history.)


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