The Green Papers
The Green Papers

American Constitutionalism at work
in the era of COVID-19

Fri 15 May 2020

The great bulk of the business of government still rests with the state authorities. The states still carry by far the greater part of the weight of the governing function, still constitute the ordinary fountain of justice and of legal right, still stand nearest the people in the regulation of all their social and legal relationships... [O]ur states have retained their right to rule their citizens in all ordinary matters without federal interference. They are the chief creators of law among us. They are the chief constituent units of our political system not only, but are also self-directive units... [t]o them is intrusted our daily welfare
T. WOODROW WILSON-- The State [1898]

Over the past few days and weeks, as the United States of America continues to grapple with its own share of the global pandemic caused by the novel Coronavirus known as 'COVID-19', there has been much talk- and certainly more than a little agitation (in the form of protests at many a State House against a given State's Stay-at Home orders [in popular parlance, "Lockdown"]) in favor- of "re-opening the Economy". In fact, most States have, as of this typing, started to so "re-open" (in varying degrees); other States now have put forth plans to "re-open" at least parts of their jurisdictions sooner, if not later.

It is not the purpose of this particular piece- and it is certainly not my place- to discern, and then discuss, whether or not (let alone how) such "re-opening" should take place: for each and every Section and Region of the country- indeed, each and every State of this Union (even, in many [if not most] cases, different Counties [or equivalent]- or even different Townships and/or Municipalities- in each State) is facing this threat to Public Health in different ways, as well as at different times; thus, different parts of the Nation have had, and will have, to "re-open" at differing paces (depending on just how much, or not, the threat of continued COVID-19 infection amongst the local populace might thereafter proceed).

However, having taken note of this, it must be said that the decisions taken by State and local authorities in this regard have been, and will continue to be, very much be driven by Politics- that is, in the old-fashioned sense of that term: not here in the sense of partisan disputations (although there is certainly plenty of that going round in what is, after all, still a Presidential Election year here in America); but, rather, in the sense of citizen influence upon the determination of policy (the root of which word is, after all, the same as that for "politics"). And, in order to have an at least reasonable approach, within all the various and sundry differences between people over just what should- or should not- be done, not only in relation to potential, where not actual, "re-opening", but also the various and sundry governmental approaches to dealing with the COVID-19 crisis as, indeed, a crisis in the first place, there should be an at least fundamental understanding of just what the relationship between Government and the People in this regard actually is!

In other words: deciding upon the appropriate policy options- indeed, ever since this menace to Public Health began to seriously "uptick" some two months ago now (please see my Commentary of last 16 March, written as this all started to first unfold)- depends on now knowing about two basic things: the Police Power of the several States of the American Union (which has allowed the States' Governors and their respective Administrations to deal with the public ramifications of COVID-19 in the first place) and the concomitant checks and balances against any and all excessive governmental use of same. This piece, then, is but my own attempt to provide something of a guide thereto.

The sources of a State's Police Power

The very last Amendment to the federal Constitution, of 12, proposed by the First Congress of the United States back in 1789- the one that concludes the document Americans know as their 'Bill of Rights'- and sent to the several States of the American Union for potential Ratification, reads as follows:

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.

As the first two proposed Amendments were not immediately adopted by at least the required 11 of the then-14 States in the Union come 1791, this last thereby became the 10th Amendment to the Constitution of the United States and its provisions would come to be more generally known as the 'Reserved Powers Clause' of that Constitution.

One of the most important- some have argued it may well be the most important- of these 'Reserved Powers' is known as the Police Power (the very reason there are such things, here in the USofA, as State Police and Municipal Police [though this power may also be exercised- certainly enforced- by County Sheriffs, Highway Patrols, Park Rangers, etc.]) and it has been pointed out, in many a court decision in many a jurisdiction all throughout American History, that (to here take just one example of same):

Police Power is a power not delegated to the general government, but remaining in the States, to enable them to regulate for their own welfare, as they understand their welfare, their internal and domestic concerns.-- STATE v. FITZPATRICK [16 R.I. 54 (1888)]

However, and this is one reason the States were- from the very start of the American Republic- ever jealous of keeping hold of their own respective Police Power (hence, what would emerge as the 10th Amendment to begin with), the very concept of Police Power is, in fact, older than the United States of America itself, having been an important element of that English Common Law long inherited by the British colonies-become States of the then-new American Union. Indeed, the influential (on both sides of the Atlantic) 18th Century jurist William Blackstone himself referred to "offences... against the public police or economy" [emphasis his own]:

By the public police and economy I mean the due regulation and domestic order of the kingdom; whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations.-- WILLIAM BLACKSTONE: Commentaries on the Laws of England Book IV [1770], 162.

Even in an America that, largely as a result of the American Revolution, was already trending towards rejection of the notion of "respective stations" (well-- if, at least at first, only to a certain extent: in the late 18th Century, women and non-whites [regardless of gender], indentured servants and slaves, were still expected to be so "stationed" and, where required, show due deference to their betters) the need for just such Police Power was so clearly seen, as it would be for all time- thus:

The police power may be characterized as a power which inheres in the State and the political divisions thereof to protect, by such restrictions as are necessary and proper, the lives, health, comfort and property of its citizens.-- CITY OF ROCHESTER v. WEST [51 N.Y. Supp. 182 (1901)]

The police power is a broad and comprehensive power by which the rights of an individual, both as to his liberty and his enjoyment of property, may be curtailed in the interest of the public welfare.-- HUBER v. MERKEL [117 Wis. 355 (1903)]

The extent of the State's Police Power

Whenever confronted by a live case or controversy brought before them, the courts- whether State or Federal- have tended to shy away from specifically defining the Police Power, preferring to color it in broader generalities:

It would be presumptuous for any court to attempt to formulate an exact definition of the "police power of the State". Legal definitions do not sum themselves up in single sentences. They are, and of necessity must be, more or less general or elastic, in order that the courts may apply them to the infinite variety of circumstances which may arise in the relations and affairs of mankind in civilized society.-- STATE v. DALTON [22 R.I. 77 (1900)]

And this caution has been exercised throughout the History of American Jurisprudence (I myself have often joked that this is the one aspect of American Law, as established within judicial decisions made during a long string of relevant cases all across the country, upon which all judges- Broad Constructionist or Narrow Constructionist, Originalist or Activist, "conservative" or "liberal" [denominate and define them as you will]- seemingly agree). Indeed, the best that can be said of the Police Power, perhaps, is the description of it found within the Opinion of the Court in the so-called SLAUGHTERHOUSE CASES [16 Wallace (83 U.S.) 36] decided by the Supreme Court of the United States in 1873, in which the High Court itself was pretty much left to but quote from two earlier cases at the State level:

"It is much easier to perceive and realize the existence and sources of the police power than to mark its boundaries, or prescribe limits to its exercise. This power is, and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property."... "It extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State;... and persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State."-- quotations from, respectively, COMMONWEALTH v. ALGER [7 Cushing (61 Mass.) 53 (1851)] and THORPE v. RUTLAND AND BURLINGTON RAILROAD CO. [27 Vt. 149 (1854)] re: the aforementioned SLAUGHTERHOUSE CASES

So, if this Police Power be so broad, or at least so sweeping, as is implied by the foregoing, what then might be the check on- the affirmative restraint upon- the State itself in its exercise thereof, in order to keep either the State or its Civil Divisions from applying it much too harshly, perhaps even despotically?

Well, there is this formulation- also by the U.S. Supreme Court- here in its decision in LAWTON v. STEELE [152 U.S. 133 (1894)]:

To justify the State in thus interposing its authority in behalf of the public it must appear
(1) that the interests of the public generally, as distinguished from those of a particular case or class, requires it; and
(2) that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive on individuals.

Thereby, the principal check on a State's Police Power is to be found within Section 1 of the 14th Amendment to the United States Constitution, where it reads:

No State shall... deprive any person of life, liberty, or property, without Due Process of Law.

However, three things must be borne in mind in any consideration of so applying 14th Amendment Substantive Due Process over and against the 10th Amendment Police Power of an American State:

First, that [a]ll authorities agree that the Constitution presupposes the existence of police power [see 'The sources of State Police Power' above: REB-A], and it is to be construed with reference to that fact.-- VILLAGE OF CARTHAGE v. FREDERICK [122 N.Y. 268 (1890)]...

although, and second: The police power, like every other power, is subject to the Constitution [see my quotation from the 14th Amendment above: REB-A], and cannot be used as a cloak under which to disregard constitutional rights or restrictions.-- STATE v. SCHLENKER [112 Iowa 642 (1900)]...

however, and finally: The fourteenth amendment to the federal Constitution does not limit the subjects in relation to which the police power may be exercised for the protection of [a State's] citizens.-- MINNEAPOLIS & ST. LOUIS RY. CO. v. BECKWITH [129 U.S. 29 (1889)]

State Police Power and COVID-19

Danger to public health has always been regarded as a sufficient ground for the exercise of police power in restraint of a person's liberty.-- MORRIS v. CITY OF COLUMBUS [102 Ga. 792 (1898)]

Indeed, it has been so since before the United States of America first became independent-- not just in the then-nascent British Empire, but elsewhere in the Western World as well; Blackstone, again:

Offences... such as are against the public health of the nation [are] a concern of the highest importance, and for the preservation of which there are in many countries special magistrates or curators appointed. [emphasis his own]-- WILLIAM BLACKSTONE: Commentaries on the Laws of England Book IV [1770], 161.

Clearly, maintenance of Public Health is- and long has been- a valid, as well as reasonable, governmental purpose. The question of moment is, therefore, merely: when has government overreached beyond the reasonable limits of said purpose? Again, I have tried herein to provide something of a guide to what should- indeed, must- be considered when attempting to answer this question (but, as I've said, I'm not going to- in this Commentary- provide that answer, or even attempt to so provide it; you, gentle reader, must come to your own conclusions- ones, hopefully, based [at least in part] in all that I have written above).

I am, then, left with suggesting what can be done where a given reader here in the United States has come to the conclusion that his or her government (State or local) has gone too far. Here's the list:

NOTE: The recent decision by the Wisconsin Supreme Court voiding that State's Governor's Stay-at Home orders much more arose out of a dispute arising under that State's own Constitution (one in which the legislature itself sought- successfully, as it turned out- to check the Governor's discretionary exercise of Wisconsin's Police Power on Separation of Powers grounds).

But the notion that a Power long established within the Constitutions (plural here because I speak of those of the several States, as well as that of the United States as a whole) is, in and itself, unconstitutional is most fallacious: the legal issue- as in almost all such cases of People vs. Power- is not the Power itself, but its exercise... and, just because you might feel the exercise of a given governmental Power is unjustified, this alone does not necessarily mean that exercise of same is, in fact, unjustified (to here quote TV's 'Judge Judy': "The Law doesn't care about your feelings").

I cannot- nor, for that matter, can anyone else- know just what the nature of "re-opening" in each State, County or equivalent, or Township or Municipality, etc. might yet bring about in each case: will we, or will we not, see a resurgence of COVID-19 infections in those places which have "re-opened" 'too early' (whatever that might mean)? The American People will have to work their own way through any and all such future events as they might occur and, as the late Senator Warren Rudman [Republican, of New Hampshire] once said "The American People have the constitutional Right to be wrong"...

all I can ask of my fellow citizens is that they at least consider both the 10th Amendment and what it might allow (or not) a State (or its own Civil Divisions) to do, as well as the 14th Amendment requirement that the States (and, again, their own Civil Divisions) nonetheless protect, as much as might be practicable given the current Public Health crisis, the Rights and Liberties of all those within, as they themselves seriously consider what they might want their own governments to do, or not do, as we go along here.

Modified .