A National Lock-down is Un-Constitutional

By

       M. Richard Maxson

      During the world’s current crisis there are calls from one side of the political spectrum for the federal government to “do something.” The are constant criticisms of the national plan or lack thereof from the executive branch. The Left seems to forget that this nation is a federal republic, a federation of states with a republican form of government. The Constitution’s articles, and the subsequent Amendments, specify the prerogatives of the Federal government. They are listed in Article I, Sec. 8; Articles II-V; Amendments XIII-XVI, XIX-XX, XXIII-XXVI. These prerogatives belong to one of the following categories:

1) Defense, war prosecution, peace, foreign relations, foreign commerce, and interstate commerce;

2) The protection of citizens’ constitutional rights and ensuring that slavery remains illegal;

3) Establishing federal courts inferior to the Supreme Court;

4) Copyright protection;

5) Coining money;

6) Establishing post offices and post roads;

7) Establishing a national set of universal weights and measures;

8 ) Taxation needed to raise revenue to perform these essential functions.

      Those are the only prerogatives of the Federal government. The Tenth Amendment states that all prerogatives not explicitly given to the Federal Government, nor prohibited of the states, are reserved to the states or to the people. “Reserved to the states” is the key phrase here. The Federal government is not allowed to handle any issues not explicitly listed in the Constitution; their prerogatives are limited to what the Constitution explicitly states. The Constitution gives the federal government (i.e. the President and the Congress) very few powers, and they are specifically enumerated. The states are required to be republics (Article IV, Section 4) and were independent of the federal government except for the powers given it listed in Article I, Section 8, Clauses 1-18.

      On the whole, the Constitution is a marvel of principles and restraint, a unique compass designed to keep the nation both pointed in the right direction and stable in the face of unknowable change in the future. The Constitution was so well designed, as written, in solving controversies or problems. Reading and understanding it you quickly discovered that there were no issues that could not be resolved. The overall principle of free government and the Constitution as written is to never elevate to a higher level that which can be resolved at a lesser level. Problem solving should begin with the individual and proceed in sequence from him to the family, city, county, and state and elevated only if a lower level of government could not do it. This is why the President, during this crisis, has been encouraging more state involvement. Federal involvement in our lives is supposed to be minimal. During this crisis, under the Constitution, he is just about at the limits of his powers.

      Federalism is a cornerstone of our constitutional system. Every violation of state sovereignty by federal officials is not merely a transgression of one unit of government against another; it is an assault on the liberties of individual Americans. The advantages of federalism are enormous. States serve as laboratories of experimentation. States look to sister states for models and borrow from them in refining their own programs. These places of experimentation benefit everyone.

      In the case of the coronavirus, the federal government, led by President Trump, controls the border under common defense—those coming in. He used his authority almost immediately as the threat appeared on the horizon. Regardless of what many may want, President Trump is not constitutionally empowered to mandate national behavior. Constitutionally states have borders and manage themselves. Taxing powers enable them to fund anything they wish and governors have broad powers to experiment, or not, on different solutions.

      Under Federalism, states individually have the responsibility to be prepared for emergencies and have in place their own programs of assistance and funding. Ronald Reagan said it best during his First Inaugural Address: “We are a nation that has a government, not the other way around.”