“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Justice Brandeis in dissent, New Ice Co. v. Liebmann (1932).
What Justice Brandeis is talking about is that part of the structure of our Constitutional system called Federalism. Federalism has been thought on life-support since the days of the New Deal that eviscerated this important philosophic pillar of our Republic. As Federal Appeals Court Judge Jerre Williams notes, “Since President Franklin D. Roosevelt and his Congress and his Supreme Court reconfigured the Constitutional landscape during the 1930s, governmental power has flowed from the state capitals to Washington, DC, as a river flows to the sea.”
Ninety years of continuous usurpation by federal Executive Branches has rendered the US Constitution but a weak version of its former self and little but an historic relic in the National Archives. Add to this the creation of Woke and Cancel Culture and the victory of those whose ideology includes replacing our Constitutional Republic with national authoritarianism seems complete.
The mistake of hubris, however, has been made and We the People are fighting back. The last straw.
is not the open invitation by the current federal Executive Branch to the Mexican drug cartels
is not the secret sexualizing of children in our public schools
is not the needless inflation most injurious to the poor
is not the vicious crime wave that is devastating our society
is not the pointless energy dependence when America produces the cleanest and most abundant energy in the world
is not the dishonorable Afghanistan military withdrawal
is not the corrupt and conflicted Swamp
The last straw is COVID-19. . .
Federal authorities admit they helped fund “gain of function” research with China and are therefore complicit in either the accidental or deliberate unleashing of an artificially created bio-weapon on the American people. The question why need not be answered to note that federal authorities have an inherent conflict of interest regarding this issue.
What would be the correct Constitutional response to this medical emergency?
The basic feature of our Constitutional system is the concept that two sovereigns govern the same people at the same time. The ultimate sovereign is We the People, who grant governing authority to both national and state bodies that pledge to use their power within certain limits. It is a unique concept in the world, but its purpose is to prevent an accumulation of power in one governing atom that would have the effect of limiting or destroying the unalienable right to Liberty possessed by every American citizen, regardless of any emergency, medical or otherwise. We call this concept Federalism.
Each state in the union has general or plenary power, also called “police power”, regarding the health, welfare, and morals of its residents. The national government has the larger powers of nationhood regarding war, foreign policy, and taxing and spending for the general welfare. There are many shared powers and interconnections, and the proper response to COVID-19 is an example of how this works:
Once it is known that a bio-weapon has been released into the United States the national government has the responsibility to do whatever is necessary to prevent further contamination. If a military response is required the national government would respond, with Congress’s permission, and the President as Commander-in-Chief. The national government would also mobilize the whole scientific community for agreed-upon medical recommendations and mobilize the private sector for any associated needs and product development.
The federal government may also develop a public relations campaign to strongly urge citizens regarding prevention and treatment. Congress may want to provide states extra funds to handle the crisis. “Strongly urge” is not coercion.
At this point, the response shifts to the states through their Governors:
Vaccines and therapeutics developed by the federal government would be distributed to private physicians, health care facilities, nursing homes, or other appropriate delivery systems in each state. Each state would develop a response protocol based on its unique features that might include emergency measures as determined by the Governor and state legislatures. The federal and state governments would continue to share scientific data, research, and studies.
This is what our Constitutional Republic requires. The federal government has no authority to mandate COVID-19 emergency measures that rightly belong to local governing authority and to the individual person.
The states as laboratories, as Justice Brandeis tells us, but with ultimate decision-making left to each person, as a Liberty interest guaranteed by the Constitution, is the American system. Should one or more of the states abuse their coercive power, citizens can move to a different state. When all power is in the hands of the national government, physically moving would not make a difference.
COVID-19 has created a reality that most concerned our Founders. They developed an answer to Tyranny, called Federalism, that we would do well to demand be restored.