“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” -10th Amendment
It is in many ways a fitting ending to a document that starts with “We the People…” All power begins and ends with the people. So, what is it we expect from our dual sovereigns? The Covid-19 virus has given us an excellent opportunity to dissect and discuss the various constitutional roles and expectations of the people and along with it the very definition of good governance in a two sovereign both beholden to the will of the people in a democratic (one person, one vote) republic (government by elected representatives).
Let’s start with a simple, I’ll be kind and call it a presumption. The Federal response to the coronavirus pandemic has been abysmal. If nothing else, the Feds are responsible for protecting our shores from invasion. This includes invasion by germs, microbes and viruses. It is a mistake to think the Feds can’t, at a minimum, lessen the chances of exposure and once exposed, to the spread of any potentially fatal illness across the several states. Their ability to coordinate, alleviate and yes, eradicate these types of menaces is unparalleled in the world. Until today. Now, We the People are left to depend on the states for our safety and well-being. Will it be enough? Only time will tell.
Under the 10th Amendment, the powers not granted to the Federal Government are in the main referred to as the Police Power (PP). The PP gives the individual states the primary obligation and, therefore, the concomitant rights to protect the health, safety and welfare of its citizenry. Problem is no individual state has the right to cross state lines. Viruses? Not so much. They don’t care about lines on a map. Due to the inability of the Federal Government to get its act together, we are finding out a bit more about what the states can and will do to alleviate the pain and suffering of their people. They buy PPE on the open market. Some of them reach out and make alliances with other states, offering aid, medicine and supplies. Some don’t.
Some put the national economy ahead of the lives of their constituents. Some state officials have suggested the elderly should be willing to die so the Walton family can keep hiding money in their offshore bank accounts and so Jeffy the B at Amazon can continue to abuse his employees while selling you stuff you don’t need. Will it be enough? Only time will tell.
That leaves us with the people. I’m a people. I want to live. I respect my state’s right, authority and, in my mind, moral obligation to use all reasonable means available to keep us Californians as safe as possible. Viva! But some don’t. There are too many among us in too many states who consider the “stay at home wear a mask for heaven’s sake don’t be a fool” order a “lockdown” and of course, despite its obvious benefits, including the saving of lives, a government overreach and, of course, an infringement on their “essential rights.” The right to be stupid, I guess.
This strikes me as odd in many ways. Some, rather obvious. They quote Patrick Henry’s “Give me liberty or give me death!” in front of the local 31 Flavors. OK, a scoop of death it is. Hint: Next time, maybe try Sam Adams as your spiritual leader, sit down and have a beer. Just a suggestion. But here’s one a bit more obscure reason I find their disdain for the power of the state curious and it has everything to do with abortion.
The reason governors can issue mandatory orders for the population at times of great crisis involves the state’s interest in preserving life. No life, no citizens. No citizens, no work. No work, no taxes. The state needs you to be part of its productive workforce. Part of that is keeping you healthy so you can go to work. When it’s safe. Got it? But this the “conservatives” amongst us do not like.
For the same reasons, a robust workforce, perhaps even to fill the next generation of soldiers we may need, the state has an interest in birth. The basic Constitutional argument for banning or not banning abortion is on one side we have the rights of individual women to make decisions regarding her fundamental privacy rights, in this case the right when to bear or not bear a child. On the flip side is the state’s compelling interest in protecting its citizenry, or in this case future citizenry and ensuring the continuance of the state’s vital interests, like you going to work, buying stuff and then collecting taxes on your paycheck and on what you buy. Sweet deal if you ask me.
And so, what is the moral of the story? The Feds have let us down. Some states are doing better than others. And the people, who can’t even wear a mask in public let alone stay home for their own good? That somehow this is a constitutional violation of their rights? While at the same time approving of the states right to force a woman against her will to bring a child she may or may not want to bring to full term? Even if the mother’s health is at risk? Even in cases of incest and rape? That somehow an infant’s first breath is more important than a sick or elderly person’s last?
Maybe leaving it all up to We the People wasn’t such a good idea in the first place. Only time will tell.
Did you get your fill of Phil?