Thanks as always to Pirate’s Cove for the Rule Five links!
National treasure Judge Andrew Napalitano weighs in on the various petty tyrants flexing their coronavirus muscles. Excerpt:
The current interferences with the exercise of rights protected by the Bill of Rights devolve around travel, assembly, interstate commercial activities and the exercise of religious beliefs.
These infringements have all come from state governors who claim the power to do so, and they raise three profound constitutional issues.
The first is: Do governors have inherent power in an emergency to craft regulations that carry the force of law? The answer is no. The Guarantee Clause of the Constitution mandates a republican (lowercase “r”) form of government in the states.
That means the separation of powers into three branches, each with a distinct function that cannot constitutionally be performed by either of the other two. Since only a representative legislature can write laws that carry criminal penalties and incur the use of force, the governor of a state cannot constitutionally write laws.
The second constitutional issue is: Can state legislatures delegate away to governors their law-making powers?
Again, the answer is no because the separation of powers prevents one branch of government from ceding to another branch its core powers. The separation was crafted not to preserve the integrity of each branch but to assure the preservation of personal liberty by preventing the accumulation of too much power in any one branch.
We are not talking about a state legislature delegating to a board of medical examiners in the executive branch the power to license physicians. We are talking about delegating away a core power — the authority to create crimes and craft punishments. Such a delegation would be an egregious violation of the Guarantee Clause.
The third constitutional issue is: Can a state legislature enact laws that interfere with personal liberties protected by the Bill of Rights, prescribe punishments for violations of those laws and authorize governors to use force to compel compliance?
Again, the answer is no because all government in America is subordinate to the natural rights articulated in the Bill of Rights and embraced in the Ninth Amendment.
We should rejoice that there is resistance to gubernatorial ignorance and arrogance that disregards the Bill of Rights. We need resistance to tyranny in order to stay free. Power unresisted continues to grow and to corrupt.
History teaches that most people prefer the illusion of safety to the cacophony of liberty. The only reason we have civil liberties today is because generations of determined minorities — starting with the revolutionaries in the 1770s — have fought for them.
Read the whole thing. Judge Napolitano neatly lays out the Constitution’s prohibitions on precisely the kind of overreaching by Imperial, State and local politicians that we’re seeing today.
Not that there hasn’t been pushback, and not that some pols’ approval ratings haven’t suffered; in our own ever-increasingly-statist Colorado, Governor Polis’s approval ratings on his handling of this crisis are in the toilet. That may or may not amount to a hill of beans when he faces re-election in 2022, of course. Two and a half years are an eternity in politics. And as for the odds of seeing some renaissance of liberty in the wake of this emergency, I’m cautiously hopeful but the Judge is not; as he cogently points out, “History teaches that most people prefer the illusion of safety to the cacophony of liberty.“
The Constitution is supposed to be the ultimate law of the land. The Bill of Rights does not include any clause stating “…unless it’s an emergency.” Pols at all levels are currently doing things they have no power to do, and not enough people are calling them on it. And Judge Napolitano is likely right; most folks prefer the illusion of safety, and it is indeed an illusion, as no subject of overbearing government is ever truly safe. One need look no farther into the past than the twentieth century for a wealth of examples.
