Achorn and the Constitution


Readers who miss Ed Achorn’s voice in the Providence Journal should know that he’s been writing regularly on his own website.  Last week he reminded us that the U.S. Constitution does, in fact, still apply:

Many Americans today seem utterly unaware of their system of self-government, and why it exists. We have employed a complex structure over the centuries for the specific purpose of dividing and frustrating power. The idea is to keep power in the hands of the people, protecting their interests against authorities who, being human, have a natural lust for power.

Beyond their narrow emergency powers, governors may act constitutionally only under the cloak of laws that were passed by the people’s representatives in the legislature, often after intensive scrutiny and public debate.

Orders to shut down all summer activities in a state whose businesses are heavily dependent on tourism, for example, should not be made arbitrarily by a single person. Rather, under our system, such decisions should be made by the community and its representatives, arrived at after discussion and, one hopes, a serious analysis of the cost vs. the benefit.

Achorn opens that essay with a reminder that “constitutional rights have no force unless the people get behind them.”  Indeed, we’re seeing way too many casual assumptions that we can discard the Constitution — which can be reframed as taking away the rights of people who disagree with us — as long as we’re scared enough or can claim that doing so will save lives.

That’s a tricky business.  On this site, commenter Mario has been offering well-considered points as we’ve traced and attempted to predict the trends of COVID-19 in Rhode Island, and he continued that practice in a comment to Mike Stenhouse’s latest In the Dugout video.  In addition to offering his own believe about the percentage of the population that has actually had the disease without being tested (probably 3-4% and “8% at best”), he notes that a strategy of seeking “herd immunity” would result in “thousands of extra, preventable deaths.”  And so… lockdowns, whether you, as an American, want to be locked down or not.

As I reply in those comments, it isn’t clear that one should label deaths as “preventable” when preventing them requires sacrificing others — to suicide, to overdoses, to other harmful and deadly effects of stress, and to the non-death harms we’re inflicting on ourselves, especially our young.  I’m not attributing this view to Mario, but in a broader context, disregarding the Constitution is not even about saving lives in an absolute sense, but deciding to save some citizens’ lives in exchange for other citizens’ lives, which brings us right back to the reason for restraining each other via a Constitution in the first place.

Personally, along with Ed Achorn, I don’t trust our governor — or any individual politician — to be able to adequately understand all of the possible consequences of her actions and then parse them without bias for an optimal outcome.  If they really thought about it, I’d wager most Rhode Islanders wouldn’t find that their idea of an optimal outcome matches Governor Raimondo’s.

As I wrote on Dust in the Light earlier this week, a peculiarly evil attribute of COVID-19 is that it forces us to display our beliefs.  Sadly, too many Americans (especially in Rhode Island) apparently believe that they can use government to impose their own beliefs on others.

  • Mario

    I don’t know if the governor’s actions are unconstitutional or not, but I
    do consider state power to be more or less unlimited compared to the
    power of the Federal government. And a legislature that refuses to stand up for itself tacitly endorses whatever comes, which is enough to satisfy my democratic impulses. For the record, I will always come down on the side of the law over the best policy, I just consider them to be separate questions. I also support people working outside the law when they think it’s for a good reason, as long as they are willing to accept the judgement or sanctions against them. I side with justice, but I’m okay with it if it takes a while sometimes.