CommentsGELFAND’S WORLD--Curiously enough, my recent article on the Sturgis motorcycle rally got more comments than almost any other article I’ve published here in CityWatch.
The substance of those comments was a suggestion by the person calling himself (herself?) Dwig. Specifically, the proposal is that we need to add to our founding documents by creating a Declaration of Interdependence and a Bill of Responsibilities. I will forego commenting on the idea of a new Declaration for the moment, and comment on the idea of a Bill of Responsibilities.
Presumably, the argument for having a Bill of Responsibilities implies that these are to be inserted in the Constitution. We would further suppose that somewhere among the added articles or amendments, there would be words and legal principles that would have already required that all Americans would be wearing anti-viral masks. Somehow, state governors and city mayors would not have had to declare legal lockdowns.
It’s an intriguing idea that some built-in legal principles of interdependence and of personal responsibilities would already have effected the needed changes in American society and that they would have limited the Covid-19 epidemic far better than our current efforts have done.
I choose to disagree on the basis of three general principles: First, that it is next to impossible to write broad Constitutional principles that would require individual actions rather than to specify limits on governments. Second, that governments both local and national already have the power to require some personal actions from individuals. Thirdly, that we are better off demanding that such requirements come from the action of duly elected authorities acting within republican forms of government.
Let me start off by admitting that I’m basing my arguments on my own vision of what the proposed documents would look like. If Dwig or any of the other commenters wish to write your own declarations and bills of responsibilities, you are free to do so and to argue, to the extent possible, that your words are not reflected in my thoughts. However, we have founding documents that we can consider, we have more than two hundred years of analysis, challenges, and commentary on those foundational documents, and we have nearly a thousand years of common law.
Let’s consider one specific question. In my previous article, I made it clear that I am not happy about two hundred thousand people congregating without masks and in close proximity in Sturgis this week. I would guess that a substantial majority of Americans agree with my sentiments. It’s also true that the governor of South Dakota has not made any efforts to force the use of masks on her visitors, let alone ban the gathering. So let’s stipulate for the sake of argument that the lawfully elected government of South Dakota (including the legislature and the governor) could have made an attempt to limit contagion either by banning the rally outright or by requiring sanitary precautions.
The argument over the Bill of Responsibilities comes down to this simple question: Could some Constitutional amendment have required the motorcycle riders in Sturgis to already be wearing masks absent a specific demand by lawfully constituted authority?
Here’s my answer: I don’t think any such thing is possible without simultaneously limiting human freedoms to an excessive extent. Yes, we could have an amendment (good luck passing it) which says that no resident of the United States shall willfully endanger the health or safety of another resident, and that every resident is required to take such actions as will be necessary to protect the lives and health of others. We can consider the philosophical flaws in this kind of language, but I tend to doubt that any language less decisive would be applicable to Covid-19 breathing cyclists in the Black Hills.
My lawyerly colleagues will of course spot the fatal flaw in this proposed amendment: It puts demands on people, but doesn’t say anything about enforcement. Perhaps somebody would write additional language into the amendment setting forth levels of violation and specific penalties, but this would simply move prosecutable crimes into the Constitution instead of within state codes and federal legislation.
What’s worse is that making a broadly defined responsibility – so broad as to be effectively undefined – into a prosecutable offense is to create a system in which prosecutors are elevated to dictators. Would smoking or the simple act of discarding a cigarette be a prosecutable offense under the broad language imagined above? It would be left up to the prosecutors to decide what human choices are dangerous to others. We would have thousands of different standards in thousands of different jurisdictions, and any one jurisdiction would alter its standards in response to the election of a new prosecutor.
In other words, the prohibition against rules being unconstitutionally vague, or arbitrary and capricious, would go away under the addition of that new amendment.
Let’s cut to the chase.
We already have a system which demands interdependence and personal responsibility. The Constitution refers to this as a republican form of government. The people get to elect those who will determine what laws we shall live under, and the people get to elect the chief enforcers of those laws, whether it be the governor on the state level, the sheriff on the county level, or the mayor and city council on the city level.
Why isn’t this system itself already equivalent to a Bill of Responsibilities? Under the right circumstances, it works to require the needed responsibilities such as wearing surgical masks.
Here’s the prime example of this Bill of Responsibilities put into action: a Supreme Court case referred to as Jacobson vs. Cambridge, Massachusetts (1905). In brief, the court held that a local government had the authority to require people to receive a smallpox vaccination. This authority was held to be within the police power of the government, where that term police power refers to the general authority to protect the public, including the overall health of the public. The author of the decision made clear that such authority is not absolute or unlimited, implying that there could be some ordinance that the court would need to overturn. But requiring each able bodied person to undergo the smallpox vaccination was held to be reasonable under the Constitution. The ability of a local government (or a state) to require the wearing of masks clearly follows from this logic.
But sometimes the system doesn’t work as well as some of us would like. Why not? The answer is simple – sometimes elected officials don’t make the rules and laws as strict as you would like. Considered from this point of view, the governor of South Dakota certainly let the rest of us down this week.
It’s an intentional weakness built into the system. We call it democracy. I’ll repeat that word: intentional. The founders wanted it this way. They were tired of petty tyrants being able to make up rules as they went along, sometimes at the point of a bayonet.
Yes, our current system does not always create and enforce responsibilities, particularly when it comes to massive corporations. I would like to see stricter laws and ordinances regarding the dumping of pollutants into our streams and harbors.
But there is a point to elevating freedoms over personal responsibilities. Some Americans would like to see stricter limits on blasphemy and others on abortion. Yet others would like to see a vast reduction in all regulations that are intended to protect factory workers. The current president treats this idea as a virtue.
The ultimate question surrounding such ideas on personal responsibility is this: Who is the one to decide that you have a particular responsibility? With democracy, you don’t always have your way, but you get the chance to keep fighting for your ideas in a system that might ultimately allow you to win.
One final point that causes liberals to avoid supporting the idea of a new Constitutional Convention. What’s to stop the conveners from abolishing the first, fourth, and fifth amendments, establishing an official religion, and going home? Those who are particularly enamored with flogging might take a shot at the eighth amendment as well. When the idea of convening a new convention was more popular (just a few years ago), the worry was that a “rogue convention” could happen, because there is nothing in the original Constitution to forbid a newly called convention from going down a rogue path.
I am, admittedly, writing from a profoundly conservative point of view since I want to hold onto some very basic liberties that the founding fathers inserted into their original document and then into the Bill of Rights. I should add that by this point in history, it is profoundly conservative to wish to uphold all voting rights, including for women, racial minorities, and the young. In this sense, people who like to call themselves conservatives in the present day are anything but, because their movement is determined to make it harder for some people to vote.
One final comment on my part: Thanks to all of you who left comments on the previous article. I admit that this submission is ultimately theoretical, but sometimes it is useful (and even fun) to think about what the founders might have done differently. I suspect that we will continue to discuss the future of Covid-19 constraints and the behavior of the American people in response to government requirements.
Addendum
We have the new pick for the Democratic Vice Presidential nominee in Sen. Kamala Harris, and the president is already calling her names. Isn’t it time for other Republicans, particularly those in the U.S. Senate, to reject the Trump approach? At last senators, have you no shame?
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected])
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