The Coronavirus Pandemic has been nothing if not unprecedented. The disease has affected countries worldwide, governments have taken on new responsibilities, and the everyday world looks much different 6 feet apart from everyone else.
With the laundry list of novelty that COVID has brought us, the most important and most controversial have the been the responses from countries around the world to the pandemic. Endless discussions day in and day out about what should be done, how it should be done, and who is to blame for not having done it sooner.
However, there is a single question that should theoretically be the most important and the first to be asked. “What does the government have the legitimate authority to do in this situation?” If we do not know the bounds for what may be permissible by a government, we certainly can’t even begin to formulate a plan of action. All subsequent questions about the most effective plan of defeating COVID are dependent on the answer to this first question.
It is telling how few times this all-important question has been asked, and how fewer times it has been answered. Silence on this issue lends itself to an implicit answer. Namely, that there are no limitations on the legitimate authority of the government. Now, this might be expected of some governments that operate without a formal constitution to limit their powers, but we should expect the United States of all countries to be different. After all, this country is founded upon and governed by a written constitution that lays out the powers of the government.
Even in the United States, both the federal and state governments have expressed little interest in showing the constitutionality of their COVID-related decrees. If there was ever a time where written constitutions would stop the power of governments, it should be during a time when they are forcing the wearing of masks, forcibly shutting down businesses, and pushing individuals out of work.
If you are employed in a non-essential industry and you want to work to provide for your family, the government will take money from you. If you persist in your “rebellious” behavior, you are thrown in a cage.
The reason that there has been little to no explanation as to the constitutionality of these actions is because there is no constitutionality to these actions. This begs the question: if a government is so easily able to flaunt the rules supposedly placed upon it, what value do those rules hold? They hold none, other than ceremonial value.
The Federal Government of the United States has grown exponentially over the last century. The once limited and small federal government of the founding fathers had envisioned is long dead and gone. However, if there was ever a moment to test the theory that a government could be truly restrained by a written constitution, it would be now. This test has been obviously and tragically failed. Never before have the rights of so many been violated so easily with so little institutional resistance.
Lysander Spooner famously said in No Treason: The Constitution of No Authority, “But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.” He wrote this in 1867. If the constitution has been powerless to stop the gross and flagrant overreaches of the state and federal governments now, what will it take for the conclusion to be drawn that it is unfit to exist? How many more rights have to be violated for us to finally admit that these documents we hold so dear are nothing more than powerless papers of paper?
