As the nation prepares to reopen, the response to the COVID-19 crisis has taught us many lessons, not the least of which is that politicians and judges are willing to run roughshod over the Constitution if it suits their purposes.
Nowhere is that more true than in California.
Recently, a panel of 9th Circuit judges based in California, in a split opinion, upheld a ban on church services. Two judges who are sworn to uphold the law suspended the Constitution and wrote that if a “court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
In plain terms, our Founding Fathers would be horrified. But then again, they never imagined government spending topping 50 percent of the economy either—and that is just where we are headed with the response to COVID-19.
We would do well to remember that one of the main reasons we have a Constitution was the reaction of the post-Revolution politicians to a depression. After the Revolution, the colonies were deeply in debt and taxes were far higher than those imposed by England. Combined with lost trade and private debt, a deep recession ensued.
Debtors were suffering during those bad economic times and politicians came to their rescue by enacting various laws that permitted them to repay their debts in installments, shut down courts to prevent judgments, and printed paper money so that debtors who took out their loans in gold could pay it back with paper of lesser value.
The states were enacting laws at such a fast and furious pace that our founders saw the economic uncertainly and damage the reaction to the crisis was causing to trade across state lines and internationally. Alexander Hamilton thought Americans were “growing tired of an excess of democracy.” Others identified the problem as “a headstrong democracy,” a “prevailing rage of excess democracy,” or “democratical tyranny.”
The solution the founders fashioned, and again, a central reason we have a Constitution, was the famed contract clause. Article 1, Section 10, Clause 1 states: “No State shall . . . coin Money . . . or Law impairing the Obligation of Contracts . . .”
Keep in mind that our founders were often short and blunt with their words. They needed few words to convey that the states wouldn’t change the terms of the existing contracts by “impairing” them.
They enshrined that law in the Constitution precisely because states were passing laws that permitted debtors to get out from their debts, delay payments, or pay their debts with dubious paper money.
Who among us today thinks a state court would cite that history or that language?
As for not allowing church services, it must be said that judges sworn to uphold the Constitution can’t do so by suspending the Constitution. It is also worth remembering that the Revolutionary War was fought amid the deadly smallpox epidemic.
At the time, and to this day, there is no known cure. The mortality rate for those who contracted smallpox was 30 percent overall and 80 percent among children. Nevertheless, the founders fashioned the First Amendment that says, quite bluntly: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...”
According to the two liberal judges who backed Newsom’s dubious restrictions on churches, “We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure.” The court opinion, of course, cites no evidence to back its “scientific” conclusion.
Of course, COVID-19 is nowhere near as dangerous as small pox, which was estimated to have killed somewhere between 300 and 500 million people. Such perspective, however, is lost today.
The legendary historian Will Durant once said, “History is an excellent teacher with few pupils.” It appears that many politicians and judges have missed class, too, and we are all the worse for it.
