Friday, May 29, 2020

Week 25: Reopening America
Over the Memorial Day weekend, a picture on a news aggregation site caught my eye. It looked fun. It looked familiar. It showed holiday-goers enjoying the sun, pool, alcohol and music at the Lake of the Ozarks. The picture, in fact, was taken at an establishment that I like to frequent when at the lake. In any ordinary year, the picture would not be a cause célèbre (save a July 1, 2007 frontpage, hatchet-job story on lake revelry in The Kansas City Star and an eloquently written and philosophically astute July 6, 2007 Letter to the Editor response by yours truly in that publication), but this is no ordinary year. Local and national media decried hundreds of intoxicated people packing lakeside bars, despite notices about social distancing guidelines. Certainly, I have my own opinion on the wisdom, or lack thereof, of these partiers, but this post is not intended to address that issue.
Instead, the real question before us relates to the appropriate and constitutional role of the government during a crisis, namely the COVID-19 pandemic. Cognizant that we are a nation of laws, let us ground ourselves in the Constitution of the United States of America, particularly three amendments.
The First Amendment to the Constitutions states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The Fifth Amendment to the Constitution states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Section One of the Fourteenth Amendment to the Constitution states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.”
Remember that the Constitution was originally proposed without amendment. It was designed specifically to address how government would be formed and would function. For the Federalists, it went without saying that this blueprint for government had nothing to do with individual citizens living their lives as they best saw fit. Such was the purview of the state and local governments. The Anti-Federalist, however, mindful of the overreach of government, as described in the Declaration of Independence, believed it necessary to enumerate the protections of the people’s rights from government infringement. In order to secure support for the ratification of the Constitution, a Bill of Rights (i.e., the first 10 amendments) was included, outlining a set of protections for the citizenry from the government.
As we look to the President, Surgeon General and Dr. Fauci; to our governors and the states’ surgeons general; and to our local officials for guidance on “reopening” our communities and our nation, it seems appropriate to consider the “closing” and “reopening” in the context of our nation’s preeminent charter that documents our social contract.
Among the first organizations to be closed were houses of worship. The First Amendment includes the Establishment Clause, which was included to prevent the creation or adoption of a national religion. Over the years the Establishment Clause has been interpreted to mean separation of church and state. The First Amendment also protects the individual’s right to peaceably assemble. With the start of the pandemic, this, too was, in a sense “closed” to the people, as any non-familial gathering was restricted to a small number of people. “Congress shall make no law…” seems pretty darn clear, yet here we are. Congress is making all kinds of laws, as are local governments, restricting our inherent rights.
Next came the closing of non-essential businesses. It has been interesting to see what is deemed essential and what is not. It also begs the question: who determines what is and is not essential? As so-called non-essential businesses have been closed, and business owners have been deprived of life (e.g., the ability to make a living to sustain life), liberty and property, it has been difficult to find anything that comes close in appearance to due process, let alone just compensation, a la the Fifth and Fourteenth Amendments
Certainly, there may be great benefit to social distancing, working from home, and the like, but the question remains: does the government have the authority to force these practices on the citizens? Would it be better, instead, to have our expert scientists provide information and guidance and then let an informed citizenry make the best decisions for themselves and their welfare?
The authority to “close” America seems to me to be as dubious as the authority to “reopen” America.
It appears that both candidates (i.e., Trump and Biden) are not troubled by the use of the federal government to determine who is essential and non-essential, who may gather and in what numbers, who may practice their faith, and so on. As the election draws nigh, let us evaluate who will be a protector of our Constitutional rights as citizens. Let me rephrase that, let us evaluate who will sacrifice our rights to the least extent.

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