During the past month, as Americans have been terrified of the coronavirus, another demon has been lurking ready to pounce. It is a demon of our own creation. It is the now amply manifested inability of elected officials to resist the temptation of totalitarianism. And it is slowly bringing about the death of personal liberty in our once free society.
It is one thing for public officials to use a bully pulpit to educate and even intimidate the populace into a prudent awareness of basic sanitary behaviors — even those which go against our nature — to impede the spread of the virus. It is quite another to contend that their suggestions and intimidations and guidelines somehow have the force of the law behind them.
The government in America — at both the federal and state levels — is divided into three branches: legislative, executive and judicial. This separation of powers was crafted at the Constitutional Convention in 1787 after heated debate. The essence of the debate was this: how to establish a government strong enough to protect individual liberty but not so strong as to enable the government to destroy it. James Madison and his colleagues devised the separation of powers to keep power from accumulating in one branch.
The legislative branch writes the laws, and the executive enforces them, and the judiciary interprets them and articulates what they mean. The president cannot write laws. The courts cannot enforce them. And Congress cannot interpret them. When Congress has gotten lazy or presidents have gotten ambitious and we’ve seen presidential lawmaking, the courts have struck it down. Stated differently, the separation of powers is core to our freedoms and the courts have consistently ruled that core functions assigned by the Constitution to each branch cannot be ceded away to another branch.
The same is the case for the states, as each state’s constitution mimics the U.S. Constitution and mandates separation. The separation is not mandated to protect the prerogatives of each branch. It is mandated to protect individual liberty by preventing any branch from accumulating power assigned to the others.
This has been Madison’s genius. It has become Madison’s sorrow.
These “orders” — stay at home, close your business, don’t run in the park, don’t go to Mass, practice social distancing — are not laws that can carry a criminal penalty for violation. They are guidelines, without the force of law. A governor or mayor can no more craft a law and assign a punishment for its noncompliance than the courts could command the military or police.
Even if legislative bodies did order churches and businesses closed, and governors and mayors were just enforcing those laws, the laws would be profoundly unconstitutional. The Free Exercise Clause of the First Amendment firmly establishes freedom of religion as a fundamental liberty and the Due Process Clause of the Fifth Amendment firmly establishes your right to purchase a lawful product in interstate commerce from a willing seller as fundamental.
Fundamental liberties are in the highest category of liberty, akin to freedom of conscience and speech and press and privacy and travel.
Let’s say you are at a big-box store looking for groceries and other items. The government cannot constitutionally limit your choices to food and paper towels if you prefer to buy grass seed and a garden hose. These are intimate personal decisions. You need not explain or justify them to the government and you don’t need a government permission slip to exercise your free will and make those choices.
Now, we have become a nation of sheep. We have elected officials with constitutionally assigned duties — and constitutionally imposed limitations — who have assumed to themselves dictatorial powers and have falsely claimed that they can interfere with our personal choices. Who are the governors to decide which human activities are essential? Abortion is essential but Mass is not? No constitution gave them that power.
There are two schools of thought on the impairment of fundamental liberties. One requires strict scrutiny and the other requires due process. The strict scrutiny standard mandates the existence of a compelling state interest addressed by the least restrictive means. The procedural due process standard mandates a trial at which the state must prove fault or guilt. The substantive due process standard puts certain personal decisions beyond governmental reach.
Closing churches meets no constitutional standard. There is no question that fighting a pandemic is a compelling state interest, yet there are far less restrictive ways to address it than preventing worship. Wearing masks and gloves, staying 10 feet apart, holding Mass outdoors, even taking a personal risk and then self-quarantining are far less restrictive and constitutionally offensive than closing churches.
New York City Mayor Bill de Blasio violated his oath to uphold the Constitution when he threatened to use force to close permanently all houses of worship that defied his guidelines. And a small-town police department in northern New Jersey exquisitely violated the constitutional rights of Catholics — while enforcing the ever-changing whims of Gov. Phil Murphy. The police claimed they were following the governor’s orders when they barred a priest on Palm Sunday from distributing palms in sealed plastic bags while he and each parishioner wore masks and gloves and were six feet apart in the fresh outdoors.
Enough is enough.
The employment of government power to assault personal liberty and cut constitutional corners is never justified in a free society, no matter the exigency. The Constitution protects our rights in good times and in bad. Those in power who steal freedom are unworthy of office. But don’t expect them to give us our freedoms back. We will need to pry it away from their cold and covetous hands.
–Judge Andrew Napolitano