One of the problems with having a Bill of Rights and the Constitutional freedoms thereof is that as with all absolutes, there are times when compromises have to be made, even if temporarily. We’re all familiar with the doleful example of shouting “Fire!” in a crowded theater (anyone remember those?), and I will reluctantly concede that the right to keep and bear arms should not necessarily include the possession of tactical nuclear devices.
The recent lockdown has given us a few more examples. I know that various Democratic elected officials have used the occasion of a purported pandemic to indulge their inner Mussolini, but ignore that for a moment while we ponder the big picture.
The best example of a situation requiring a temporary freeze on a Constitutional right is that of religion, where church services were banned (amazingly, not for Muslims but that’s a discussion for another time) because it is completely logical to suppose that it may not be in the public interest to have hundreds of people crammed into a single room, breathing all over each other and touching hands, etc.
And of course, the First Amendment’s rights to peaceable assembly and practice of religion would both stand against prohibition of said services. At the same time, however, the potential risk of wholesale infection would seem to support such a Constitutional abridgement — provided that it was temporary, of course. (And the stupid politicians did themselves no favors by even banning the congregation of worshippers in the churches’ parking lots, which is so stupid a ban that it defies both logic and commonsense, but that’s politicians for ya.)
On the one hand, therefore, it is a perfectly-natural impulse of people to seek comfort where they can during a time of disaster. My own take is that people need to be realistic about this kind of thing — God isn’t going to punish you for not going to church in times of an epidemic or pandemic — but at the same time I understand and indeed sympathize with people for having that urgent need for the solace of religious congregation. All religions are inconvenient, behavior-wise, and this is just one manifestation thereof.
On the other hand, the society requires a sensible public policy to prevent mass infection. (In the case of the Wuhan virus, the dangers may have been overstated, but that too is a discussion for another time. For the sake of this discussion, let’s assume that the pandemic was going to be as dreadful as first thought.) Had governors (at all levels) done nothing to try to prevent the rapid spread of infection, for fear of running afoul of Constitutional infringement, they would have been excoriated (and rightfully so) for their negligence and disinterest in the welfare of their citizens. (Hardcore libertarians, take note.)
The problem with accommodation of said Constitutional abridgements and infringements is that there is always the risk that said governors will not only take things too far (right now, Michigan governor Gretchen Whitmer’s ears should be aflame let alone burning), but will use the opportunity to increase still further the State’s power over the populace — which they have done, almost without exception.
That still doesn’t negate the fact that occasionally, hard choices have to be made; and it’s all very well to say things like “We will allow our rights to be infringed, but only temporarily” because in the case of communicable disease or other illness, there is always going to be the question of “How long is temporary?” At what point is it safe to say, “Okay, as you were” when the risks of pandemic are, almost by definition, unknowable?
It’s a tough question, but on the whole I think that we managed to dodge this bullet better than the Europeans and Brits have. (The foul “track and trace” proposals as proposed by the various politicians Over There will never fly Over Here, and thankfully so.) The exceptions — where we were screwed by the governors — are primarily to be found in states governed by people for whom power is the sine qua non of political existence (unsurprisingly, the socialists like Cuomo, Whitmer and Newsom being the best / worst examples thereof).
I think that the lessons we have learned on this topic should be both memorized and debated long and hard, and I hope this post can serve as a starting point.
The problem with the ban on religious services is the obvious viewpoint discrimination by leftists. Church services (and conservative demonstrations) banned while leftist demonstrations encouraged. I am not even a religious person but the discrimination is obvious to me and I would think it would really grate on those who are religious.
Given government’s track record of not lifting “temporary” infringements of citizens’ rights, I would rather take my chances with whatever bug is out there. Plus, the experts have also demonstrated they deserve no credibility.
Or we could just let people use common sense.
I’ll take my own church as an example. I go to a Catholic church under the Ordinariate of St Peter (basically a Catholic church home for disaffected Anglicans like myself). Ordinariate churches don’t come under their local diocese (mine is in Scranton, PA), rather they come under the Bishop of the Ordinariate who is based in Houston. (The best known example of an Ordinariate is the military chaplains. If you’re a Catholic chaplain, you come under the Bishop for the military Ordinariate no matter where you are, either stateside of overseas, and your local Bishop has no authority over you).
So when this whole thing hit, our Bishop (presumably in consultation with Rome) lifted the requirement for Catholics to attend Mass on Sunday and Holy Days and closed all churches under his authority to public worship until further notice. All without government intervention. I’ll remind all that this thing hit during Lent, and the churches were closed for Palm Sunday, Holy Week and Easter. As localities are re-opening, so are the churches (mine reopens this weekend, but the requirement to attend is still lifted for those who are still antsy about getting together) with accommodations (you have to make a reservation for the service you want to attend, half the pews are closed off, etc).
John Adams said our Constitution was intended for the governance of a moral and religious people, and was inadequate for the governance of any other. I’d offer that it’s intended for the governance of ADULTS and is inadequate for governance of children and Liberals (considerable overlap). Adults can weigh the risks and make adult decisions about how to conduct themselves, adult organizations can make adjustments or even stop activities based on those risks, all without anyone being threatened with jail.
This reduces government to an advisory position, they can say “You CAN (insert activity), but it’s really NOT a good idea right now because (reasons based on best-available data).” Which I suspect is how the Founding Fathers saw government, especially Federal government, functioning in the lives of most citizens.
Well said, sir.
Unfortunately, what we find is that the normal fall-back position of governments the world over is “Everything not forbidden is compulsory.”
“I will reluctantly concede that the right to keep and bear arms should not necessarily include the possession of tactical nuclear devices.”
I suppose. My rule of thumb is this: I should be allowed to own any weapon the government is likely to use against me.
This seems, to my reading, to be in complete harmony with the intent behind the 2nd Amendment.
The Fed is unlikely (for now) to fly over my house and drop bombs on me from an F-16, so I can get why it would be inappropriate to have one of those in my hands. Likewise a tac nuke. But I could certainly see the State gov, or even the local yokels in some jurisdictions, to pull up in front with an AFV filled with armored troops with automatic rifles, big magazines, and other gear up to and including things like breaching charges–because God knows, local cops loves them some military gear so they can play badass. Therefore, in my reasoning, I should have ready access to the same equipment.
Damn you are going soft:).
The government has ABSOLUTELY no authority to “ban” anything they didn’t give in the first place. Whether the right to defend myself, or speak my mind, or go to worships services.
The ban on churches was particularly disgusting because of how easily all the church leaders rolled over and submitted. During Easter season no less. My church has about twice as many folding chairs as people that could reasonably be expected for any service, and an adjacent SOCCER FIELD in which to set them up. They ran and hid. Not sure I’ll ever get over it. Cowards, the lot of them.
The Bill of rights doesn’t give me a damn thing, those belong to me whether the government agrees or not. Apparently they cant be trusted to keep their end of the bargain. Surprise.
Now we see the same damn politicians that were delighted to send police to shutdown anything they didn’t like, endorse the riots that destroy our cities.
Edit: hit the wrong button and this is a reply to someone else’s post instead of a comment on Kim’s post. Oops
Given that a Democrat congressman and presidential candidate did threaten to nuke us that would seem to meet your criteria.
One of my favorite fantasies is to go back in time and convince the Framers to bring back the Course of Honors, with municipal council seats filled by lot fom the voting rolls – with selectees razed from the roll if they fail to serve. Election at the end of term would be a simple vote of confidence, Did Good or Failed. Only then would those who Did Good be permitted to run for reelection – or for an elective higher office, in prescribed graded steps. This would mean no Donald Trumps, but it would also cut down on the Woodrow Wilsons.
I would propose a law for future incidents along the following:
1. A governor may suspend public gatherings for the purposes of a medical emergency situation. In a medical emergency situation a governor may restrict a population’s movements, close certain classes of businesses, and restrict religious worship services. However, these orders can only exist for 14 days after which they expire entirely and cannot be renewed by the governor.
2. Should the medical emergency situation exist past the initial two weeks, those orders can be extended by 14 day intervals only and only with a two-thirds majority of each chamber of their legislature.
The second point is intended to compel persisting such orders is necessary by circumstances that largely transcend politics. Right now in Colorado, we’re still in mostly lockdown (reopening very slowly) when we are down to 134 people currently hospitalized.
That’s not a bad idea, except it shouldn’t be a law (which can be overturned). It should be part of the state’s constitution.
I think I’ll toss the idea over to one of our Texas pols, see what they think. Even though we have a very benign governor right now, there are no guarantees for the future, especially with all the socialist Mexicans and Commie Californians flooding in.
Best get it done quickly.
This proposal makes a lot of sense – in no case should the Governor unilaterally have the power to extend these “executive actions” beyond a very short, emergency period. Instead many of them seem intent on micromanaging our lives indefinitely even with explicit rejection by the legislature
File this comment under: Bone; picking thereof.
Your post is quite well argued, Kim, as is your usual. However, in this case, I think you overlook a necessary distinction.
Numerous US courts have ruled that rights cannot be restricted or denied, even temporarily, so your basic premise is flawed as both a practical matter and as a point of law. It is further well established that the mutual exercise of immutable rights can, and routinely are, subject to lawful constraint, so as to provide the maximum opportunity for all citizens to exercise their rights without violating other’s exercise of their rights.
The distinction between possessing rights and exercising rights is not just a pedantic one, I submit, as your post makes clear.
There already is a substantial body of law regulating the exercise of rights by US citizens and residents. Whether, how, and to what extent those laws should be modified (or removed) ought to be a routinely ongoing topic of discussion at all levels of social and political discourse in our country (and any reader of this blog knows that to be the actual case). Framing discussion about emergent or transitory circumstances threatening human existence (or even only general welfare) in terms of specifically limited exercise of rights, which would necessarily include return to the status quo, avoids the question of infringement upon, or denial of, rights entirely.
How you frame an argument is often more than half the battle of winning it, and I suggest you’ve framed this particular argument poorly. Preempt the concept of denying rights by confining the discussion to ways and means of temporarily adapting existing regulations on the mutual exercise of rights between citizens.
Too bad we can’t put something in about “gilding the lily” when it comes to public debate over the pre-emption of rights. Something along the line of “If you exceed the boundaries of truth or reality in selling your pre-emption, you spend 20-yrs in the slammer and are forever proscribed from government employment in any capacity.
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