Madison's Sorrow

Always searching for the real thing
Living like it's far away
Just leave all the madness in yesterday
You're holding the key when you believe it
--Michael McDonald

When the governor of Ohio announced what amounted to a state lockdown of all 'non-essential' businesses a month ago, I happened to be patronizing a small business in the area.

Lamenting about the forced closure that would go into effect at 9 pm that evening, my proprietor friend speculated that lawsuits would arise challenging the constitutionality of the order. I agreed, although I wondered whether states might have more discretionary police power than the federal government to manage acute situations in their local jurisdictions.

Judge Nap believes that they don't.

Mirroring the US constitution, each state constitution mandates separation of powers between the legislative, executive, and judicial branches. Devised by James Madison and other founding ancestors, separation of powers requires each branch to stay within their assigned borders of authority. The legislative branch writes laws, the executive branch enforces those laws, and the judicial branch interprets them. This mandated division of labor prevents one branch from assimilating power.

It is important to note that Madison et al. stipulated no exceptions to this rule. There are no riders that state, for example, that the requirement for separation of power is negated during crisis situations.

Unfortunately, the genius of this design is turning into Madison's sorrow.

To counter the COVID-19 pandemic, state governors and other officials have been crafting various 'orders' mandating or restricting various individual behaviors. Stay at home, close your business, don't go to the park, keep 6 feet of distance between you and others. The Judge argues that these orders are NOT laws. They cannot justly carry a criminal penalty for violation. Governors can no more legally craft law or assign punishment for noncompliance than courts can command the military or police.

Moreover, even if governors were enforcing orders to close churches, businesses, etc. passed by state legislatures, such laws would be profoundly unconstitutional. The First Amendment firmly establishes freedom of religion and freedom of assembly as fundamental liberties. The Fifth Amendment, per its Due Process clause, firmly establishes the right to be left alone and to engage in voluntary exchange with others.

No constitution gives governors the authority to decide what human activities are 'essential.'

The Judge notes that states may have cause to impair fundamental liberties, but measures must meet what is called a strict scrutiny standard. Strict scrutiny requires that a 'compelling state interest' must exist, and that the interest must be pursued by the 'least restrictive means' possible.

While there is little question that fighting a pandemic is a compelling state interest, there are far less restrictive means to combat a pandemic than broad lockdowns that shutter businesses, churches, and prevent voluntary trade.

At the 'least restrictive' end of the countermeasures spectrum, a state might advise citizens of the dangers at hand and recommend ways to reduce illness or contagion--particularly among those who may be most at risk. By letting the people decide, liberty is preserved as individuals make free, personalized choices for navigating the situation.

Instead, governors are violating their oaths to uphold the Constitution. They are overstepping their legal boundaries when they create orders that are the purview of state legislatures. Moreover, those orders violate constitutional rights. Even when combating pandemics, states must pursue their interests using means that are least restrictive to essential liberties. Plenty of countermeasures to the COVID situation exist that are less restrictive to liberty than those currently imposed.

This is why lawsuits that my small business owner/friend envisions--those that challenge draconian lockdown orders--should win the day in just courts.