One largely untapped political resource during the COVID crisis was the structural nature of the U.S. Constitution and the reality that lockdowns are local. To guard against the next manufactured crisis, the American people should refresh themselves on these fundamentals and demand their state legislatures take protective measures now.
Our country’s structure is relatively straightforward on paper, even if things get a little complicated once all the parts start moving in real time. When the states formed the Union, they ceded power to a federal government cautiously, carefully granting to Congress enumerated powers and creating checks and balances to keep the federal government from evolving into tyranny—at least that was the plan.
The states, for their part, retained their historic “police power.” The police power is a state’s inherent authority to govern with a view toward its citizens’ health, safety, morals, and general welfare. Certainly, a state’s plenary powers are limited by the U.S. Constitution and state constitutions, but absent those restrictions, a state’s power is very broad.
Ordering lockdowns, then, is within the state’s authority, not that of the federal government. Bill Gates, Dr. Fauci, or anyone else who advocated for a federally mandated lockdown either did not understand our Constitution’s structure or, more likely, simply did not respect it.
On the federal level, emergency measures—no matter how necessary—always pose a danger to freedom. Historically, the exercise of authority triggered by an emergency brings to life a new federal power that never returns to the fully dormant posture from which it came. (I’d go further and say the power is created, but we maintain the ruse that it was always there and never exercised.) If you need an example of radical change in federal authority brought about by an emergency, look no further than FDR’s response to the Great Depression.
A state’s exercise of its police power in a time of crisis can be very frightening, too. The 2020 lockdowns were particularly chilling. They effectuated a sweeping deprivation of civil liberties and most of the lockdowns far exceeded the uncontroverted evidence necessary to justify them.
This is one reason it is much better to have emergency powers exercised at the local level, where citizens can better control the leadership making the decisions. If lockdowns have to be implemented jurisdiction by jurisdiction, or state by state, they can’t be imposed with the same uniformity and force, and there is the option for a state to dissent and chart its own path, as Florida’s Governor DeSantis did for some time. This is essentially the “laboratory of the states” at work, as Justice Louis Brandeis wrote: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
Local control also means it is easier to correct overreach. It is easier for the people to hold state leaders accountable if and when emergency powers are abused, than to fight the federal government.
Local control also means that red states could amend state statutes to curtail executive abuse in the event of another “emergency,” and prospectively defend against a future crisis by passing laws banning mask mandates and mandates of experimental vaccines or medical treatments. Unfortunately, very few states have learned the lessons of 2020 and guarded against the next power grab through legislation.
Leave a Reply