When the news came out that a panel of the 6th Circuit weighed in to help a governor find the limits to his authority under the Lockdown, it was suspected that one of our friends in that newly improved circuit would have a hand in it. And sure enough, that hand was detected, but it was from one of the most seasoned and venerated members of that Circuit, our friend Jeff Sutton. The case involved the orders of Governor Andy Beshear of Kentucky barring assemblies that are not “essential,” and including in those orders the assemblies at religious services. Religious organizations could function only when they were “life-sustaining” in providing “food, shelter and social services.” One could see at once the quality of the mind at work, the mind that could never imagine how religious faith could be “life-sustaining” quite apart from its charitable works. The severity and the animating character of the orders could be seen in these passages from the opinion of the appellate panel in Maryville Baptist Church v Beshear:
“On April 12, Maryville Baptist Church held a drive-in Easter service. Congregants parked their cars in the church’s parking lot and listened to a sermon over a loudspeaker. Kentucky State Police arrived in the parking lot and issued notices to the congregants that their attendance at the drive-in service amounted to a criminal act. The officers recorded congregants’ license plate numbers and sent letters to vehicle owners requiring them to self-quarantine for 14 days or be subject to further sanction.
“Consistent with the Governor’s threats on Good Friday, state troopers came to the Church’s Easter service, told congregants that they were in violation of a criminal law, and took down the license plate numbers of everyone there, whether they had participated in a drive-in or in-person service.”
The hand of Judge Sutton may be seen at work when the panel of the 6th Circuit asked:
“[W]hy is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.
“The Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same.”
Whether these lines sprang from Judge Sutton or his colleagues, they touched the core of the problem in this crisis: that the sweeping orders of the governors have not had to face even the most elementary test of the reasons and evidence that could be summoned in support of such sweeping restrictions of personal freedom.
Our friend and treasured colleague, Justin Dyer, touched the same questions in a piece he did yesterday in National Review Online, and which we’re posting here as well. “When we peel away,” as he said, “the judicial glosses and doctrinal formulas designed to address this problem, the question, at the end of the day, is this: Is this government policy and its particular application, as a response to this pandemic, justified? Is it reasonable?”
“There is, of course,” he added, “a second, related question: Who gets to decide? The answer in our political system is that we decide, through a back and forth conversation among citizens, legislators, executives, and finally judges, who will consider these policies in light of a contested jurisprudential framework for constitutional rights built over the last century and a half.”
And that question points us beyond the crisis: When we look back, as we surely will, on what might have been done in coping with this crisis over COVID-19, we’ll be hearing people propose new agencies and vast schemes of public spending. But what we would need even more critically is the shoring up of a regime of law. Or: the simple insistence on the same discipline of judgment that comes into play more typically in our law when personal freedoms are restricted.
This position during the crisis was expressed well this morning by Holman Jenkins in the Wall Street Journal, as it has been expressed well in all of his columns during this crisis. He praises Elon Musk for having the courage to “resist his livelihood being destroyed by infringements on the most basic rights of U.S. citizens: to leave their homes, to engage in trade, to work and receive pay.” The only alteration we would make to those lines is that we are dealing here with a species of “natural rights,” and not the rights confined to “citizens.” These truly basic protections of “lawfulness” should be available even to people who are not citizens but live here under the protections of a regime of law.
What seems to have been pushed aside during this crisis is that question that has engaged every serious writer in political philosophy down through the ages: How does one justify a state of affairs in which some men are invested with the authority to have their edicts treated with the force of binding law. Rousseau made the point in the plainest and most telling way when he insisted that the success of some people in seizing and holding power over others cannot itself supply the justification for that power. Power needs to turn itself into authority, rightly conferred and rightly exercised. The powers of government in times of contagion have curiously swept past this elementary sense that the exercise of power, in any instance, is in need of justification. We think that, when we emerge from the debris of this crisis, it will be clear that the damage to the health and well-bearing of this country would have been far less grave than it has been if this salutary convention of justifying legal orders had not been treated so casually. If there was ever a time when we need to repair to “first things,” this has surely been the time.