At the mid-point of the tenth month of the Covid-19 pandemic, one thing has become self-evidently clear: Our republic is not well-equipped to deal with a widespread public health emergency. Whether that is a good or bad thing depends in large part on your politics: the left calls for more effective governance and a centralized response to the crisis; the right worries about public-health authoritarianism.
There is something superficially paradoxical about the fact that the United States, one of the wealthiest nations in world history, leads the world in the gross number of deaths. (We are in the top 10 nations when deaths are reckoned in deaths per 100,000 population.)
I am not uncomfortable with the death rate, even as news comes today that a neighbor has died as a result of the virus. Federalism is designed to frustrate coordinated and broad assertions of federal power, even in an emergency. I guess I’ve always admired the slogan on New Hampshire license plates: Live Free or Die. I’m not prepared to live in a republic governed by the virtuous.
But how much power should states, as opposed to the federal government, have to respond to a crisis?
Here’s how the world looks to constitutional lawyers: The federal government is one of limited, or enumerated, powers. Just how broad the scope of its powers reaches is a function of what implied powers you think the Constitution gives the federal government.
The states, on the other hand, have residual powers, including sweeping police powers – the power to regulate in the name of the health and well-being of their citizens.
Most constitutional litigation attacks assertions of government power based on the Bill of Rights. At first, the Bill of Rights, the first ten amendments to the constitution, applied only to the federal government. Throughout the twentieth centuries, these rights were made enforceable, or were, to use legalspeak, “incorporated” against the states. Thus, neither the state nor federal government can deprive you of due process of law, a Fourteenth Amendment guarantee.
All states must honor the guarantees of the Bill of Rights, which sets the minimum liberties a state must protect. States are free to offer broader liberties than the federal limits, and all states have their own constitutions and their own case law interpreting their constitutions. Thus, in Connecticut, there are broader limits on the state’s right to search and more expansive rights to counsel than are guaranteed under federal law.
But here’s the rub. There is no federal police power. The federal government has largely persuasive authority over the states when it comes to public health: It can offer funding to states who agree to participate in federal initiatives, for example, but the federal government lacks the power to enforce, let’s say, a national mask mandate, or a rule requiring social distancing.
Do states possess such power?
That’s an open question of law. Cases challenging such assertions of state police powers are now snaking their way through the state courts. It’s unlikely a federal challenge to mandates of this sort will succeed. Limits on state police powers are likely to be found, if they are to be found at all, in state constitutions.
Connecticut, like many states, has a social compact clause in its state constitution; indeed, it is in the very first section of the very first article of the document: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”
This is critical. It signals that government is a creation of the people, and, as such, is limited. But what does this mean for the police power? Can the government do whatever it likes in an emergency?
I’ve been reading Connecticut colonial history to get a sense of what answers history may provide to this question. The answers I find in Volume One of Bingham’s History of Connecticut are chilling. “[T]he community came first. Democracy was not only not practiced, it was antithetical to the belief in a society of the elect, which was the basis of Puritanism.”
It gets worse: “[S]ubmission to the superior judgment of select brethren was in keeping with the theory of the … covenanted state, where, if a core of saints administered the laws according to the covenant, compelling the greater number of unregenerate inhabitants to obey and thereby achieving conformity to intrinsically right patterns of conduct, all would be benefited, with the result justifying the coercion.”
Put bluntly, our colonial forebears believed that the righteous should have the right and the power to legislate in the name of the public good. Virtue, in a republic in which the franchise was limited to believers in Christianity, could be compelled. The Puritans viewed their authoritarianism as righteousness, nothing more, and certainly, nothing less.
Why does this matter now, in a secular age, an age in which every quirky pot retains the right to complain to the potter: “why makest me thus?” and to demand relief?
The jurisprudence in which state police powers were sculpted has its origins, at least in New England, in Puritanism. My hunch is that we smuggled a brand of self-righteous authoritarianism into our state constitutions. Thus, the social compact was not a libertarian contract, but a commitment to conform to orthodoxy.
Do these ideas hover at the perimeter of state constitutional doctrine?
I live in a small semi-rural town in Connecticut. A neighbor broadcasts his political convictions on a white board in magic marker daily. He detests Donald Trump and cannot signal the virtues of his own beliefs loudly and often enough. I chuckle on daily walks past his home. We have our very own autonomous zone.
Of late, he has taken to complain that Trump is too busy doing other things to govern. It’s an authoritarian sort of plea, begging for the federal government to do something in the name of public health, the better to fight the pandemic.
I doubt my neighbor knows much about our Puritan past. And I wonder whether he really believes that government should have the power to do anything the virtuous think necessary to protect the public. But I don’t doubt for a moment the neighbor’s resolve to see virtue triumphant.
The Puritans are smirking now, as we struggle with the pandemic. Strong leadership can see us through, the new Puritans cry.
Really? I’d rather muddle through with the sinners than sit smugly and safely with the saints. That may not be the New England way, but, at least until recently, I thought it was the American way.
God save us from the virtuous; they constitute the most deadly mob of them all.
Note: If you enjoyed this post, please consider supporting me on Patreon: Become a Patron!).