COVID-19 and the U. S. Constitution (Guest Post)



Dave Wills is my friend, but he also has a unique perspective as the Executive Director of the Association of County Commissioners of Georgia (www.accg.org). This is a post that he shared and I thought it was worth your thoughts and consideration.


COVID-19 and the U. S. Constitution


Elected officials at the federal, state and local levels are being criticized from every quarter for actions, or inaction, related to the current pandemic. Only in retrospect will we fully understand what should have been done to minimize the loss of life while preserving as much economic activity as possible (the amount of financial suffering resulting from layoffs is horrendous and is falling disproportionately on low-income earners). But if you were President, Governor, or chief elected official in a county or city, what decisions would you make now? Consider the question in the context framed below.


When the Constitution of the United States was drafted in 1787 and sent to the states for ratification, it was by no means assured of being passed and adopted. The nation that would be formed lay in the balance. With the very real prospect of states refusing to ratify the Constitution, particularly because of the opposition by George Clinton, Governor of New York, Alexander Hamilton, James Madison and John Jay published a series of essays, which collectively became known as The Federalist Papers, which advocated for ratification.


In Federalist 51 Madison wrote, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”


In Georgia and many other states across the country, wide-ranging restrictions on our liberties have recently been imposed in an effort to mitigate the spread of COVID-19, primarily to allow the medical system to accommodate the volume of people expected to fall ill from the virus. Nearly every restrictive order includes a requirement that “non-essential” businesses close, while allowing “essential” businesses to remain open. In Georgia, churches are advised not to convene in person (if they do meet in person, physical distancing of non-cohabitating persons must be observed), while in some states churches have been forbidden to convene congregational meetings. Hardware and liquor stores are open, but beauty salons and barbers are closed.


The determinations made by governments of what businesses are essential or non-essential, which organizations may or may not meet, etc., raises a host of questions, some related to due process requirements and other constitutional protections, in the minds of some people, including me. All such decisions have the practical effect of picking “winners and losers” economically.


Referring again to Madison’s comment, men are not angels. If you were President, Governor, or chief elected official of a county or city, using your experience and knowledge, what would you order as the “right” amount of control to protect public health during this pandemic, while preserving economic opportunities and respecting constitutional safeguards of individual rights?

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