The courts, the Constitution and the coronavirus

By Edward Achorn

Another judge has ruled that Americans live in a constitutional republic — virus or no virus.

The Associated Press reported: “A judge in rural Oregon on Monday tossed out statewide coronavirus restrictions imposed by Democratic Gov. Kate Brown, saying she didn’t seek the Legislature’s approval to extend the stay-at-home orders beyond a 28-day limit.

“Baker County Circuit Judge Matthew Shirtcliff issued his opinion in response to a lawsuit filed earlier this month by 10 churches around Oregon that argued the state’s social-distancing directives were unconstitutional.”

Governors may use emergency powers to issue edicts — specifically to protect the public — but in most cases only for a limited time. That is because, in America, power is supposed to reside in the people.

As I explained in a previous piece: “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.”

Back to the AP report: “In a seven-page opinion, Shirtcliff wrote that the damage to Oregonians and their livelihood was greater than the dangers presented by the coronavirus. He also noted that other businesses deemed essential, such as grocery stores, had been allowed to remain open even with large numbers of people present and have relied on masks, social distancing and other measures to protect the public.”

Arbitrary and, at times, bizarre decisions about who is “essential” and who is not — i.e., liquor and big-box stores are essential, while small businesses and houses of worship are not, even though the First Amendment specifically shields the latter — are becoming more difficult to enforce. It has become clear that the initial justification for a brief lockdown of our society — to prevent the hospitals from being overrun — no longer pertains.

While COVID-19 is nasty and even deadly, the models put forth weeks ago by some scientists proved to be wildly pessimistic. The projections that everyone was using were wrong, even accounting for the impact of mitigation. Meanwhile, there is debate in the scientific community over whether the society-wide lockdown was the right strategy, given that the disease viciously targets the elderly and those with other health conditions but leaves most people alone. (The epidemiologists in Sweden, for example, encouraged a less draconian approach.)

The cost to America of the lengthy lockdown — which may have extended the duration of the disease, preventing herd immunity, possibly leading to another spike in the fall — may be horrific. What states have been doing is really guesswork with (I believe) good intentions. The science is still evolving.

In Oregon, Governor Brown plans to challenge the order in the state Supreme Court.

“It is irresponsible to dismiss the health risks and science behind our measures to stop COVID-19. We would be faced with the prospect of another mass outbreak without the tools that have proven to be effective in protecting our friends, families, neighbors, and loved ones from this disease,” she said.

But, in a nation of laws, a politician’s perhaps imperfect understanding of the “science” cannot secure unrestricted and arbitrary power. After a limited time, the people and their representatives must go along. Around the country, courts are reasserting the existence of state constitutions and the federal Constitution, which limit and divide power and give citizens due process.

(Read Edward Achorn’s books about American history.)



  1. I am in agreement. The landscape of the American federal court is being changed by the current administration via the appointment of judges who not only say they abide by the rule of law but who are also (in most cases) constitutional literalists. The words of the US Constitution say things and those things are the rules, freedom of religion being a first right. Just my two cents.


  2. Ed, you are wrong about this. One rural (elected) judge in one state does not suggest a trend. In fact, the trend is very much, as always, for the courts to defer to the wisdom of the executive and legislative branches in a time of national peril. I understand that you do not see this as all that serious a problem (given your cherry picking of models to support one of your last editorials — the one that said we would top out at 60k. As you know, now 100k and counting. Any willingness to admit that it was a terrible use of numbers in that case to support an indefensible position? And why was one of your first acts after being terminated to block me on twitter? I thought you liked a good argument,


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