Covid-19 vs. Liberty, (2020) – Constitutional Questions for Public Review
Covid-19 vs. Liberty, (2020) Constitutional Questions for Public Review
A Guest Editorial By David Seal
We all have a civic duty to defeat the Coronavirus, a threat to public health and economic security. Adjusting our behavior in accordance with the advice of health care professionals, wearing PPE, working from home if possible, exercising good hygiene and taking extreme precautions creates a path to defeating the virus. We all have a role to play in this life and death situation. But what authority does government have in compelling citizens to comply with recommended precautions? Are we to be obedient subjects that follow leadership over the cliff like lemmings; or do we ask questions and seek answers to determine what is proper, required, or just recommended? We deserve clear factual information so we can evaluate our options, exercise personal responsibility, and obey legitimate enforceable laws. In this article, I raise questions on the role of government and of constitutional authority relative to executive orders. We live by two important constitutions, state and federal. The following is my interpretation of our current situation, plus questions. Opposing points of view are welcome.
Executive Orders, T.C.A § 58-2-120
Under state code, executive orders made under Tennessee Chapter 58 have the effect of law, which carry a criminal penalty if violated, 11 months, 29 days in jail, up to a $2500 fine, a Class A Misdemeanor.
A Question of Liberty, T.C.A § 58-2-107
With the stroke of a pen, the governor of this state, in times of emergency, can order certain businesses to close, permit others to remain open, limit our right of free assembly, make rules, and temporarily suspend state laws. The legislature handed the governor this power in 2000, grounded in Public Chapter 946. Was this a proper delegation of power? Historically, precedent does exist for legislative delegation; but has the legislature overreached by making the emergency powers of the executive overly broad? Was the delegation of powers proper under Article II of the Tennessee Constitution, which reserves law making to the legislative branch, and precludes one branch from performing functions assigned to the other? Should the executive branch have the power to suspend law, even temporarily? By ordering the temporary closing of selected businesses, some will be doomed to failure while others will survive, or even thrive. Should government decide this outcome? Executive orders in Tennessee can also place limits on free assembly. Is this permissible under the 1st Amendment of the U.S. Constitution?
Power of the Executive
Article III of The Constitution of the State of Tennessee describes the powers of the executive. Under this article, the governor has the power to manage the executive department. So, can the legislature empower the governor to suspend due process that is guaranteed by the 14th Amendment?
Due Process and Equal Protection
The federal constitution requires due process if a person is to be deprived of liberty. Should the closing of a business by executive order be considered deprivation of economic liberty, or the closure of selected businesses as economic discrimination? Is the selective forced closure of some businesses, and not others, consistent with the “equal protection” clause? Should the state be immune from damages that may occur?
14th Amendment, U.S. Constitution: “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.”
Court Decisions
According to a recent article by the Pacific Legal Foundation, “states” can go “quite far” in their emergency power to quarantine and curtail rights to protect the health and safety of citizens. They cite two U.S. Supreme Court cases on the power to regulate, quarantine, and suspend rights, Gibbons v. Ogden, 22 U.S. (9Wheat) 1 (1824), and Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health 186 U.S. 380 (1902).
Final Policy Question
The state (Tennessee) derives its power from you. Through elected representation, how far should we let the state go in curtailing liberty in times of emergency?
Submitted by David Seal David is a long time educator in Jefferson County, as well as a recognized artist and local businessman. He has also served Jefferson County as a County Commissioner and is a lobbyist for the people on issues such as eminent domain and broadband accessibility on the state level.
