There is no constitutional right to go shopping.
There is a constitutional right to freedom from extended “lock down” by executive order.
Protective measures imposed by almost all state governors to fight Covid-19 squarely placed the U.S. Constitution in the middle of the crisis.
Governors adopted mandatory closures, stay-at-home rules and the use of face coverings to control the spread of the virus. Their well-intentioned moves led to a potential conflict between the enjoyment of constitutionally protected rights and the need to ensure the survival of dangerously exposed people. To untangle the conflict means going back to the creation of the U.S.
The 13 original states initially had all of the political power, but chose to delegate a small portion to the new U.S. government. Each state held onto broad powers with the consent of its voters. People had natural rights, which they retained and states were supposed to protect.
That system yielded a weak national government, funded by voluntary state contributions. The Constitution was the deal among the states for a more powerful central government using powers delegated to it by the states. But they did not transfer to it their responsibility for public health and safety.
Experience with British colonial rule raised worries that the empowered federal government would override individual rights. Some states insisted on a Bill of Rights, protecting people from the federal government, as a condition of accepting the Constitution. The Constitution was later amended to impose many federal protections on state governments.
The result is that states have the authority to take necessary action to deal with a threat to public health, like Covid-19. The federal government cannot impose its requirements on them. In the case of serious and immediate danger, states may give their governors great powers to take swift and broad action.
In March, the Maine Legislature did that as its members hurried to get out of Augusta. Similar action took place in other states. As I wrote at the time, Gov. Mills had been given “near dictatorial” power. Since then, she has exercised those powers in a progressive and limited way, though completely unchecked.
The exercise of emergency powers may carry real dangers of its own. In Hungary, the government has exploited its Covid-19 measures to undermine the country’s democracy. Protests in other countries reveal similar concerns.
The U.S. federal government has demonstrated confusion about its role. To cover for having been unprepared, the Trump administration claimed the response was really up to the states. Even if that were true, this position ignores a century of using federal resources to assist the states, help on which they had come to rely.
President Trump recently issued a unilateral declaration that churches provide an essential service and they should be open. If the president can announce that kind of a federal directive, why doesn’t the federal government play the leading role in the crisis? In fact, states paid relatively little attention to his declaration.
But a conflict arises. The First Amendment is intended to prevent government interference with religion. Still, state police power can include a mandatory shutdown of group gatherings, like church services.
State power to protect public health and safety is unquestioned. Emergencies threatening human life occur, and must be met. Does that mean constitutional rights can be overridden?
Even the drafters of the Bill of Rights recognized that no right is absolute. The exercise of individual rights may be affected by emergencies. That could mean limiting close social contact, including reducing church attendance or requiring people to wear face covering even in houses of worship, would be acceptable.
To ensure that emergency powers are not abused by applying them to undermine the system of government or change laws that have no relevance to the crisis, two principles have evolved.
First, any transfer of emergency powers, which short-circuits the normal government decision making process, should be brief and have a fixed deadline. If the use of emergency powers remains necessary, legislators could grant a new and limited extension. Here’s an obvious argument for electronic legislative sessions.
Second, the authority exercising the emergency powers should be formally subject to regular, if not continuous, review. For example, a governor should have to seek the formal advice of a review panel, such as legislative leadership, before taking emergency action.
Legislative bodies, both Congress and state legislatures, were unprepared for deploying emergency powers in the Covid-19 crisis. With better federal government leadership, well-defined procedures and more formalized federal-state cooperation, the use of emergency power might have gone better.
Lawmakers can adopt new procedures to better control emergency power. They should not wait.