With so many Americans suffering not only from the coronavirus contagion but from the closures governors have ordered, John’s frustration is understandable—and, to his credit, he wrote with due modesty that his argument is not “based on the presumption of constitutional expertise.” Rather, it’s based on my contention that under our system of government, freedom comes first, government second, to secure our freedom. I stand by that contention, but properly understood and implemented, it’s perfectly consistent with Wally’s argument. Here’s why, starting with a quick look at the basic theory of the matter.
The Constitution makes federal law supreme in its domain, to be sure, but it divides powers between the federal and state governments, leaving most powers with the states or, as the Tenth Amendment says, with the states or the people. Federal powers are thus limited. You’d never know that today, of course, not since the New Deal Supreme Court misread the Constitution after President Franklin Roosevelt threatened to pack the body with six new members, thus opening the door to today’s federal Leviathan. Still, at least in principle, Congress has only 18 legislative powers or ends, as enumerated in Article I, section 8. Everything else belongs to the states, including, especially here, the general “police power,” which governors wield to protect the rights, health, and safety of their citizens. That’s why most criminal law, for example, is enacted and enforced by the states and state executive agencies. Again, in principle, the federal government, including the president, has limited authority over such matters because there is no general federal police power—Wally’s main point.