Crisis is not just the catalyst of tyranny. It is its raison d’etre. There isn’t a single tyrant or tyrannical ideology that doesn’t claim to be the long-term answer to some crisis — of confidence, of poverty, of class struggle, of racial survival, and so on.
One can never have liberty unless one also has it in the midst of crisis.
Fortunately, the United States is very far from the point of tyranny, but its citizens must tread carefully amid an increasingly, albeit sometimes necessarily sweeping government response to the spread of the coronavirus.
On March 17, Ohio Gov. Mike DeWine canceled his state’s primary election, citing the “unprecedented public health crisis.” Given that specific Ohio officials have the power to postpone party primaries, it was the right call. The state Supreme Court upheld DeWine’s action, and anything less would have suppressed the vote, as all responsible people would have rightly stayed home in accordance with federal recommendations to avoid spreading the coronavirus.
Yet, even so, the immense power that comes from emergency actions is a reminder of why details matter when citizens seek to guard their liberties.
For example, contrast DeWine’s action with that of the Champaign, Illinois, City Council. Its new ordinance, passed in the context of the current pandemic, grants the city sweeping “police powers,” including the right to shut down liquor stores, unilaterally ban the sale of guns, and confiscate private property. It is unclear how any of these actions would halt the spread of the coronavirus, and at least two of the three appear to violate enumerated constitutional rights.
We propose two consistent rules for discerning citizens to tell the difference. The first is that there is no crisis so great as to justify violating rights enumerated in the Bill of Rights. The second is that governments should not take away or limit other presumed liberties, such as the freedom to operate a sit-down restaurant or to hold or attend large public concerts, unless the restriction is both temporary and demonstrably the least-restrictive means for ameliorating a true crisis.
The Constitution, as its own Article VI states, is the supreme law of the land. It contains no emergency powers or exceptions for times of crisis. Both the people’s rights that it recognizes and the constraints that it places on their federal government apply absolutely and without exception.
Thus, those reflexively complaining that President Trump hasn’t simply seized control of the country just demonstrate their own ignorance of the U.S. system of government. For all the complaints that Trump is somehow authoritarian (oddly these tend to come from the same people — go figure), he has acted appropriately in leaving most decisions to the 50 governors, who wield their states’ significant power over issues where the federal government has very little say: health, safety, education, housing, welfare, business licensing, and a myriad of other issues. This is exactly how the federal system is designed to work.
Meanwhile, some state constitutions do contain emergency powers, many of which are getting a workout right now. But even these provisions, as the Constitution notes, are subordinate to the Constitution and the individual rights enumerated therein.
So, don’t give up your constitutional rights, but be prepared to accept restrictions on other freedoms you normally enjoy. There will even be drastic measures we would never tolerate in normal times — curfews, limitations of private business operations, etc. Not all freedoms are absolute.
But, as things keep moving fast, citizens must always question by what authority given actions are being taken and be on guard that those actions do not outlive the coronavirus pandemic.
