As most of you know by now, just the other day President Trump said that churches, synagogues, and mosques needed to be opened up ipso pronto. This was said with a true populist instinct, because thousands of churches were gearing up to open anyhow, regardless of what their governors were saying. Trump’s comments simply served to make everything a little more festive, and to give us all an opportunity for yet another civics lesson. That’s what you all were yearning for, wasn’t it? Another civics lesson?
“I call on governors to allow our churches and places of worship to open right now . . . These are places that hold our society together and keep our people united . . . The people are demanding to go to church and synagogue and to their mosque.”
Okay. That was reasonable, and very welcome. But then there was this.
“The governors need to do the right thing and allow these very important, essential places of faith to open right now, for this weekend. If they don’t do it, I will override the governors.”
Override the governors? But states are not provinces or federal administrative districts, and governors are not satraps. Executive orders are not imperial decrees. We need to back up for a hot minute.
Some Background on That Good Old Tenth Amendment
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.
U.S. Constitution, Tenth Amendment (Dead Letter Division)
Let us unpack this, shall we? I will here be discussing what the Tenth Amendment actually says and actually requires, and not what a congeries of demented court decisions have twisted it into.
Our Constitution is an enumerated powers document. The Federal Government only has lawful power when and where the Constitution expressly delegates that power to the United States. So, this amendment says, if a power is not plainly given to the central government, or expressly denied to the States, then those powers are “reserved” to the states respectively, or to the people.
Now, how does this not set up a potential cat fight between the respective states and the people in those states? Which powers are “reserved” to the states, and which powers are “reserved” to the people? But instead of regarding this as an invitation for the states and the people to fight it out among themselves, we need to remember that that states were sovereign states coming into a federal union, and these states were already performing the functions of government. The people of those states also had certain God-given rights, which they were fond of exercising, and were very aware of. In the sovereign states that first formed the federal government, there was a state/people balance worked out already.
So what the Tenth Amendment was saying was this. If the Constitution does not grant a power to the central government (like the power of making treaties with foreign nations), or if the Constitution does not prohibit an activity to the states (like minting their own money), then everything remained as it had been worked out before. The Constitution, except for certain specified areas, was preserving the status quo ante, which is to say, the previous arrangement.
So for those who understand how the American system was designed to work, this arrangement excludes creative shoehorning of centralized do-goodery into the general welfare clause, and it certainly does not find a right to privacy and abortion emanating from various constitutional penumbra.
And, to cut to the chase, this means that the governors did not have the power to do what they did, and the president does not have the power to countermand them. The check on this gubernatorial over-reach must come from below, and not from above.
Akkk! Romans 13!
In the meantime, Trump’s proclamation puts various Romans-thirteeners into a bind. There have been numerous Christians who have been urging churches to obey their governors, no matter how inconsistent or demented their proclamations, because . . . Romans 13! And, they hasten to add, let us have none of your constitutional casuistry and logic-chopping about whether the gubernatorial orders are lawful or not, or legal, or whatever. You heard what the governor said. Just do it. Be a good testimony.
Well, you guys heard what the president said. Back to church!
But if you lock down lovers get to question the constitutionality of what the president just did (and you would have a good case), then we lock down haters get to question the constitutionality of what our governors have been doing. The right to challenge our leaders is one of the rights that our people have had for centuries, a right that antedates the Tenth Amendment, and it is a right that is recognized and protected by that Amendment.
We have procedures for this. We have liberties that we may exercise in times like these. But a constitutional check on these unwarranted lock down orders needs to come from thousands of churches and businesses just opening, and not from an authoritative voice from the top, decreeing it. If Trump were to encourage the people not to listen to their local authoritarians, that would be fine. If he were to serve as a cheerleader in the bully pulpit, that would be fine too. But him talking this way, while good politics, is not fine.
What all this means is that the governors didn’t have the right to declare these lock downs in the first place, and the president doesn’t have the right to reverse them. As much fun as it might be for us to watch the liberals oscillate between a deep commitment to federalism and states rights, on the one hand, and a strong centralized government, on the other, depending entirely on what Trump tweeted this morning, we have to be careful not to be our own conservative version of that. More is required to sustain limited government than just “owning the libs.”
We need to remember that governmental powers are like guns — they can be pointed in any direction. For example, those conservatives who vote for surveillance powers that will be vested in a hard-working and noble and diligent president from a Tom Clancy novel, because “we must combat the clear and present danger,” will actually find that they have given all those powers to someone like Hillary, which means that what they are doing is refusing to protect us from the clear and present danger.
If the president can just “countermand” the blue state governors when he feels like it, what is to prevent the next president from countermanding the red state governors when he feels like it?
The only illegal countermanding that I feel comfortable with would be things like executive orders that reverse previous executive orders. Take out your pen, and sign as many “never minds” as you like. But when new holes are being punched in the hull of an already sinking constitutional republic, I cannot say that I am any kind of a fan.
But with that said . . .
On the Merits
Now on the merits of whether churches and other places of worship should be allowed to open, the answer should be obvious. Of course.
But because our constitutional order is largely in shambles, and not one person in a hundred knows anything about basic civics, and because our population is deeply polarized, everything we try to do has turned into one giant, continent-wide sumo wrestling contest. And in that kind of a contest, the only real issue is strength.
But in a healthy republic, a healthy measure is one that is sound on the merits, AND which honors the established processes. I am not here appealing to the “civility” argument. This is the civics argument.
The rule of law is a way of instantiating the golden rule into rough and tumble politics. Do as you would be done by is the standard formulation. Consider this a variation on the theme. Build a government that you wouldn’t mind living under if your enemies won the election. But the golden rule means that turnabout is fair play. It means that when your team wins the election, there are certain things you can’t do. And you can’t do them, even if they are wonderful ideas, constructed entirely out of pure thoughts.
And on this one, I am not convinced that the president’s position is constructed entirely out of pure thoughts. In saying this, I have no doubt that the president really wants churches open, but I also have no doubt that he is positioning himself (shrewdly) for the election in the fall.
Think about this for a moment. The American people are beyond chafed at the lock downs. This blow back against the shut down was already going to be an issue in the election, but how was it going to work? Just about everybody, excluding the fine governor of South Dakota, was agreeing that the lock downs were necessary.
I mean, President Trump was king of the lock downs. He presided over the best lock down in history. He saved countless lives by means of his stupendous — ask anyone — lock downs.
So how is he going to benefit from the electorate’s exasperation over lock downs?
Allow me to explain. The electorate is pretty savvy when it comes to detecting deep sympathies, whether hidden or not. Let’s take an example from the left. Back before Obergefell, what was the position of front line Democrat politicians on the question of same sex mirage? I am talking about people like Hillary and Obama. You remember? It was that hate-filled view that maintained that marriage was a sacred union between a man and a woman.
Now why weren’t they devoured by the progressive left for this commitment to traditional marriage? And the answer is a pretty simple one. They were not devoured because absolutely no one believed them.
But Governor Cuomo believes in his lock downs. Governor Whitmer believes in her lock downs. Governor Newsom believes in his lock downs. Governor Inslee believes in his lock downs. And everybody knows they believe in them. They have prayed sincerely, and asked the lock downs to come into their hearts.
And President Trump has signaled, by various and sundry means, that he doesn’t believe in them. He brags about them, certainly. He exults in how much he has been able to achieve through them. He makes a pile of them, sets them on fire, and does a little touchdown dance around them. But when armed protesters show up in the capital building in Lansing, he opines that the governor needs to listen to their “concerns.” When thousands of churches are marshaling themselves, preparing to open in defiance of the lock down true believers, Trump hitches his wagon to that.
I believe that, short term, the results may be good. But I also believe that in the post-Trump era, if we want a constitutional republic, with limited government, committed to the rule of law, we will have to rebuild one. This is not because Trump destroyed it — it was in the main destroyed already. What has happened is that when these things are done from “the right,” all reasonable people can see it happening. But it has been happening from the left for many decades, and reasonable people have been blind to it, and impervious to evidence. And when your reasonable people are impervious to evidence, things are in a bad way.
But in the meantime, coming back to the sumo contest, Trump is currently doing far more damage to the plans of the progressive left than he is to the plans of conservatives. This is because the left actually had a plan, which they were industriously implementing like a bicyclist flying down a 45 degree hill, and Trump threw a stout stick into their spokes. Trump is not disrupting the plans of conservatives because conservatives actually had no plan, unless you want to count “lose slowly” as a plan.
Which I don’t.