COVID-19, the coronavirus, has perhaps done more to underscore the concerns that our citizens have about their rights as citizens of the United States of America.
The unchecked powers of a governor, upon the declaration of an emergency, have raised the specter of fear in the hearts of patriots throughout our great nation. Freedoms, previously taken for granted, are being challenged by the extraordinary powers given by state legislatures to their governors in years past.
The rebellion against these draconian measures has begun in Illinois, Pennsylvania, Michigan, and a host of other states. State legislatures found themselves in a quandary in which no one expected the complete abuse of laws meant to protect the public under very unusual circumstances. No one expected that such an abuse of power could rest, almost, unchecked, upon the whim of one executive, a governor, and a secretary of health who was unelected.
Citizens, within 30 days of the quarantine being in effect, began to question their constitutional rights that were so severely limited due to the pandemic. The stay-at-home orders and the determination of life-sustaining versus nonessential workers became a “takings” without due process created confusion when state courts upheld the laws creating this emergency declaration. Upholding these laws seemed to be in contradiction to our rights under the Constitution of the United States.
The Bill of Rights seemed to no longer apply thereby confusing most citizens who felt that such rights were sacred, guaranteed and no longer in danger of being lost. Their property and right to work were taken without compensation and/or explanation. The right of free assembly was stripped. Freedom of religion was threatened overnight.
Hospitals were shut down for elective surgeries. Unemployment skyrocketed. Massive stimulus bills in the trillions of dollars were passed thrusting the nation deeper into debt. Cries and exhortations about our constitutional rights seem to fall on deaf ears. As time passed, the discontent increased and will continue to escalate.
The public began to realize that the very framework of the government that they thought was there to protect them was in fact denying them the right of self-determination and other basic freedoms.
The history of the founding of our nation and our Constitution show that this debate about individual rights and freedoms has been a struggle since our founding. The Constitution itself did not include the Bill of Rights. Those Bill of Rights, the first 10 amendments to the Constitution, did not come about until years after the Constitution was ratified.
Those rights under the Bill of Rights evolved. The Civil War created the climate in which additional amendments, particularly the 14th amendment, were added to the U.S. Constitution which amplified whether the Bill of Rights applied to the states as well.
“One of the greatest changes in the interpretation of the Constitution came with the passage of the 14th Amendment after the conclusion of the Civil War. It was designed to assist newly freed slaves in the transition to freedom and to protect them from acts of the Southern states, and also to overturn the decision in the Dred Scott case that ruled that persons of African descent could not be citizens of the United States even if they were born in the United States. The amendment was successful in this endeavor, legally, if not in reality.
But this sentence had and continues to have long-lasting implications on the application of the Bill of Rights to the states:
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.
The "Due Process Clause" has been interpreted as applying the Bill of Rights, which lists the rights (or privileges and immunities) of the citizens, to the states. Known as "incorporation," the application of the Bill to the states did not come all at once, nor is incorporation complete. Even today, there are some parts of the Bill which have not been incorporated. The process began unsuccessfully in the late 1800's and continued unsuccessfully right up until the 1930's. In 1947, however, in Adamson v California (332 U.S. 46 ), the Supreme Court began to accept the argument that the 14th Amendment requires the states to follow the protections of the Bill of Rights. Historians both agreed and disagreed with the Court's contention that the framers of the 14th Amendment intended incorporation since its passage ... but historians do not sit on the Court. Their opinions were less important than those of the Justices.” (Source: www.usconstitution.net)
So as the pandemic hopefully subsides the battle over the unchecked emergency powers of governors of the 50 states will begin in earnest. The challenges that will occur as a result of these poorly designed laws giving such powers to one the chief executive and a secretary of health will see greater definition and clarity because of the abuses seen in many of the states during this pandemic.
The very fabric of our nation and the rights inherent of our people are at stake. The rights enumerated in the Bill of Rights and our U.S. Constitution should be the highest law in the land. State legislatures, governors, and state courts need greater clarity of what their role is and is not during an emergency.
Until then, the legislature yields the power of the budget to reign in an out of control governor.
To have thought that Covid 19 would pinpoint such weaknesses in our rights was unfathomable at the beginning of 2020 but it will become the rallying cry of our republic until it is fixed.
Frank Ryan, CPA, USMCR (Ret) represents the 101st District in the PA House of Representatives. He is a retired Marine Reserve Colonel, a CPA and specializes in corporate restructuring. He has served on numerous boards of publicly traded and non-profit organizations. He can be reached at frankryanPA101@gmail.com.
Posted on 31 May 2020, 10:42 - Category: Op Ed