The Courts: America’s Constitutional Fail-safe


For the past few weeks, I’ve harped continually on the importance of a vibrant and engaged citizenry, a citizenry that is willing to fight for and defend liberty. However, most of the citizenry’s direct impact won’t be practically felt until elections since our vote is our single and really only direct link between us and those in power representing us.

As the coronavirus continues to trend, Americans, we, are scratching our heads struggling to figure out what really is happening and what is going to happen. Will the country ever go back to “normal”? Will we always have these new restrictions? Now that we’ve permitted governments to tell us how to run our private businesses and private lives, what’s to stop them from continuing to do so?

There are three specific people/organizations that can stop the government from doing so and the third answer is the focus of today’s blog.

One

The first and most obvious answer of course, is us. We are responsible for ourselves and for our own liberty.

Two

The second answer is, those who hold the power to enforce the law. The police force can simply refuse to enact the intrusive measures of government control that they are tasked with enforcing.

Three?

There is a final fail-safe…one that is preferable to avoid but if necessary may come in handy.


The courts.

Those of you who have been following me for any length of time will know that I am not fond of the courts or the power that the courts now wield. Their power far exceeds what the American founders had ever predicted or intended. Just check out this post where I explain the origins of much of this power.

So, I am reticent to get on board the judicial train too quickly.

That being said, the founders did create the courts for a purpose. Plus, many of the courts I’ll be referencing are state level and state level courts are far less threatening. These courts may very well be the fail-safe that America needs during this coronavirus era.

The Responsibility and blame dilemma

I came across an article entitled “The Constitutional Immune System Kick In”. Aside from the brilliant title, the author makes a really good point.

The courts are a part of the constitutional immune system, creating immunity against tyranny.

Years ago, the courts did little to stop government power and overreach when sickness or a pandemic was involved. Of course, the key difference between now and then was this: the government overreach was not limitless and was usually confined to one location (i.e. New York City during the 1916 polio epidemic.).

Today, America is facing a entirely different and unique dilemma. State and local governments have taken the responsibility of an individual’s health upon themselves by choosing to close private businesses and tell private individuals how to conduct their daily lives. In doing so, they now bear the weight of responsibility should they “allow” these same private individuals and companies to re-engage in society.


For example, I received an email from Longhorns steakhouse today saying that they will be re-opening their dine-in section for customers now that North Carolina has entered Phase 2. Here’s the thing about liberty and responsibility. Liberty entails responsibility. Dictatorship does not.

So, in this example, Longhorns does not feel the weight of the responsibility of their decision to re-open because they can lay any blame for sickness on the state government should anyone claim that they fell ill due to Longhorns opening.

Right?

Let’s take this a step further. The person who went to eat at Longhorns, instead of taking responsibility for their own choices to go eat there, finds its easier to blame Longhorns or the government. Listen friends, tyranny and control has its perks, especially if you’d rather take no responsibility for your actions and the consequences they entail. But such perks are at the cost of liberty. Again, liberty is not cheap! It demands responsibility. What if, instead of the government’s dictating how we handled the “crisis”, every company and every individual handled it privately and took responsibility for each company’s or individual’s choices and subsequent consequences. It’s as if our mindset is so dependent upon government now, this, real liberty, is the oddity.

So, America is facing a unique dilemma. The state governments have taken upon themselves the responsibility for an individual’s personal health decisions, thereby rendering themselves responsible should they “open” up the economy and people look for someone to blame if sickness spreads. Had they never become involved in the first place, they would not be in this pickle. But they are and they are now struggling to appease two arguments.

One, open and sickness spikes or two, refuse to open and the economy continues to tank—both areas that the government was never responsible for in the first place. 

The Courts: America’s Fail-safe

The court’s existence here is very interesting. They are not going to be playing the blame game (or they shouldn’t be anyway) but rather looking at the Constitutional legality of certain government executive orders/mandates. They are not the branch that will be held responsible should sickness spread or the economy continue to tank, making their rulings far more constitutionally objective.


“As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny,” Texas Supreme Court Justice James Blacklock wrote.

More companies, businesses and churches are filing lawsuits against the government claiming that unfettered police power and complete domination by the state is violating their rights. And here’s the thing, such claims are entirely valid and reasonable and have solid legal footing. The only reason that Americans have been allowing such a show of government force so far is because of fear.

But let’s be realistic. If this sickness had been wiping out people and killing millions upon millions, we might be in a different boat. However, as much scientific research and evidence about the virus shows, it is not much more lethal than the average flu, making extreme government overreach begin to feel dramatically violating.

So, we’ve allowed government the opportunity to overreach out of extreme caution. And when I say Americans are allowing such government overreach, I mean that literally and figuratively. We allow, very literally, the government to have the power it has. If we all shrugged and said no, there’s not much the government could do. Sheer numbers (and arms) determine that.

But we also have various areas of recourse we can take. We can go to the polls and vote differently. Or we can take our complaints to the courts.

I’m intrigued by this avenue. How will the courts handle the various law suits that inevitably will continue to hit their desks? They are not held responsible for “opening” or “closing” the state so they should be able to say whether or not government mandates and the like are a violation of American rights.

An Ohio state judge recently came out and said that the Health Department’s director “has acted in an impermissible arbitrary, unreasonable, and oppressive manner and without any procedural safeguards,” regarding Ohio’s stay-at-home order.

Recently pastors in North Carolina, my state, filed a law suit against the NC government for unlawful and unfair treatment of churches.

And this list of law suits is apparently growing. Bonnie Kristian explains, in her article, that “these cases tend to concern allegations of inconsistent or discriminatory applications of that power (as in Oregon and California), disregard for clear legal definitions and limits (as in Ohio), executive branch overreach (as in Michigan, Wisconsin, and Illinois), or undue prioritization of public health orders above constitutional rights (as in Kentucky).”


The courts are an important and vital resource for Americans who feel their rights are being violated and don’t have anywhere else to turn. How the courts respond and handle this particular coronavirus situation will tell us a lot about how our courts view our Constitution and our rights.

Conclusion

Coming from a theoretical perspective, I’m curious to see how many governments (by that I mean the legislative and executive portions of the government) actually respect court rulings. Truly, courts have no enforcement agents as they were never intended to be a lawmaking institution (only lawmaking institutions need an executive branch to make sure the laws are enforced). Therefore, the courts’ power stems from the legitimacy they wield. How much respect do we the people give them, because the more we respect them the more pressure the rest of the government will feel to acquiesce to their rulings.

We have yet to see what will happen or how all of this will play out but the courts are a unique and potentially very important fail-safe for our country’s liberties. We the people must be proactive in fighting for those liberties where they are being unjustly limited—by taking such issues to the courts. At least we have such an option. Better to use it than not. We may be watching our liberties be violated daily but at least we have a fail-safe.

Because friends, a fail-safe is better than no fail-safe.

The Liberty Belle

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