On Friday the 13th of March, President Trump issued his “Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak.” In the ensuing 4 ½ months Governors across the country have used executive orders to lockdown their States, using this unprecedented situation to rewrite not only their own state statutes and constitutions but the federal constitution as it applies to their residents as well. Relying on their initial demand that we take certain precautions to “flatten the curve,” they have now moved on to categorizing our businesses by “phases,” with some industries being shuttered “until there is a cure,” an unknowable standard never before applied to transmissible disease outbreaks.
The question that I have been asked by many of my fellow citizens is “where do I go to get my constitutional rights back?”
We have listened to our political leaders excoriate us – their employers – for challenging their power, the arbitrariness of their decisions, and their “you-win-you-lose” declarations regarding what is considered an “essential” business and one that they believe is “nonessential,” regardless of the ultimate impact on the lives of every day human beings. I have engaged with our service industry employees as they struggle to breathe through their masks, while also trying desperately to provide an enjoyable dining experience or entice us into buying their products so that they can stay in business for one more month. I have stood on a street corner buying a photographer’s artwork as he laments the loss of his showroom (30 years in the same place), while tears roll down his cheeks at the lack of our understanding of history and humanity. I have spent over an hour visiting with a small business and father of two small sons, discussing his decision to liquidate his inventory, close his store, and hope that he can live off of his savings for two years, his estimate of the amount of time it will take for his tourist-dependent community to recover from the economic devastation caused by his Governor’s unilateral decisions.
So again, “where do we go to get our civil liberties back?”
According to Ballotpedia, between March 15th and June 29th, the Governors in this country issued 2065 executive orders on coronavirus, with Michigan (132) and Colorado (115) leading that ignominious pack. Governor Murphy of New Jersey has issued 53 executive orders. Governor Cuomo of New York has issued 40 executive orders. Governor Baker of Massachusetts has issued 67 executive orders. Governor Newsom of California has issued 57 executive orders. While some of these governors have begun to loosen their restrictions, they continue to assert the overarching authority to decide which businesses will be allowed to operate and under what conditions, imposing “social-distancing” requirements and capacity restrictions. They have also taken to threatening their residents with “shutting it all down” if they do not obey their mandates, injecting even more uncertainty into the situation. These governors have assumed the authority to alter residential rental contracts, to close businesses, to close schools, to prohibit our religious services, to shutter our churches, to cancel weddings, and to forbid families from holding funerals to mourn their dead.
Having now been living through this “Governors Gone Wild” nightmare for over 4 months, we have seen almost no effort by the legislative branch in these states to take back their rightful authority to legislate. Many of our state legislators seem entirely content to enthrone a king to make their decisions for them, and in the process have abdicated their responsibility to serve their constituents. In Pennsylvania, the one state where the Legislature sought to rein in the Governor’s unlawful overreach, the court blocked their efforts.
So again we must ask: “Where do we go to get our freedoms back?”
It becomes apparent when listening to some of the politicians that they have landed on what they believe is the perfect mechanism by which to circumvent the regular order of our constitutional Republic. They are broadcasting what in many ways is a demand that “until there is a cure for death” they will continue to hold us hostage to their agenda of making government the center of our existence, and that they will exercise their self-granted authority to control our lives in ways that none of us ever expected could happen in a Constitutional Republic.
The answer, then, to the questions regarding how we restore and protect our individual rights must be found in the state and federal constitutions themselves. We as the citizens of this country must reclaim our rightful place as the ultimate decision-makers, with our public servants (including the Governors) working for us rather than the other way around.
The New Civil Liberties Alliance immediately recognized the threat that these Governors posed to our constitutional rights, our civil liberties, and our freedoms. We have sued the Governors of Massachusetts and New Jersey challenging their executive overreach. We have exposed the blatant violation of due process inherent in these executive orders. We have spoken up on behalf of our landlords, small business owners, and places of worship, asking the courts to step in to restore our most fundamental protections against an overbearing executive branch that violates the sacred bond between the governed and the government.
We should never again allow our government—whether on the state or federal level—to govern by fiat, to issue executive orders that are essentially the death penalty for certain businesses, to unilaterally choose winners and losers in our industries while refusing to allow our citizens to make their arguments or challenge their authority.
One of the most destructive aspects of the current crisis is the fact that the decision-makers have not suffered the consequences of the decisions that they make. They continue to be paid and they continue to live in relative luxury, especially as compared to the small business owners and employees who have lost their livelihoods through no fault of their own. That is in and of itself a recipe for disaster.
Our forefathers bestowed upon us the most free, fair, noble, and pragmatic form of government. We cannot let these Governors tear that away from us based on their promise that they can take better care of us than we can ourselves. History has proven them wrong time and time again, and there is nothing that has happened in the last 4 ½ months to disrupt that unblemished record of failure when the government comes for our freedoms in exchange for the promise of safety.
History has proven that our Constitutional rights, our civil liberties, and our freedoms are ours to protect and we should not have to ask any of our Governors whether they approve.