COVID Chaos: Lockdowns and Liberty Revisited

Sat, Aug 5 at 9:55 AM

As every American child learns (or should have learned) the American Revolution was a unique historical event because of its emphasis on liberty, the value of human freedom. While other rebellions, such as the communist variety, whether Russian or Chinese, sought to undermine, or really destroy liberty, the American Revolution affirmed the freedom of the individual and the centrality of reason and natural rights. These values were elucidated in the Founding documents such as the Declaration, the Constitution and the Bill of Rights. But as one Thomas Jefferson argued, to assume these values were inevitable or to be held in perpetuity is foolhardy. In his Notes on the State of Virginia, The Sage of Monticello himself, Thomas Jefferson looks briefly at the history of religion in colonial America. He argues at their origins most of the colonies had adopted some sort of established church but in embracing such laws and practices, the colonial legislatures had been impinging upon the individual freedoms of its subjects. In the latter part of the 18th century, as the revolutionary fervor encompassed the newly created nation, all state established churches would eventually be dismantled and replaced by competing confessionals. For Jefferson, one such culmination of this manifestation was his own Virginia Statute for Establishing Religious Freedom (1785) which dismantled the established church and created religious freedom in the state of Virginia. This statute allowed free and reasonable people the opportunity to pursue religious liberty without an omnipotent state church lurking in the foreground. Such legislation would be a blueprint for the nation and instrumental in developing both the Establishment and Free Exercise Clauses of the First Amendment. In spite of these great triumphs, Jefferson was not under the illusion that these precepts would lead to some kind of end of history. On the contrary, Jefferson is pessimistic because again in his Notes on the State of Virginia, he makes a foreboding warning. He argues such liberties will always face threats from officials and citizens who do not recognize the universality of these freedoms and may attempt to undermine these tenets. Most Americans would be aghast to hear such a prediction because there is a sense American mores would not tolerate such a turn towards tyranny but Jefferson, the Sage from Monticello was certainly prophetic in this warning. In 2020, at the beginning of the COVID crisis, the Governor of California Gavin Newsom issued a stay at home order to combat the spread of this disease. At the time, it was not clear what kind of epidemic the nation was being confronted with but even if you accepted the premise that Newsom’s order was an attempt at controlling the contagion there was an apparent undercurrent of tyranny. His edict commanded essential functions to be maintained but all other non-essential activities, including in person church service to be halted. This meant that Wal-Mart could remain open to provide food and supplies to the public if this enterprise followed particular public health guidelines. But churches did not have such a privilege extended to them whether they were conforming to government guidelines or not. Large or small churches could certainly abide by the edict pertaining to social distancing and masks but no remedy was given. Essentially, the Governor’s directive undermined the spirit and substance of the Free Exercise Clause of the 1st Amendment which does not allow the government to infringe on the individual’s right to practice their religion. The courts have ruled no freedom is absolute in its application but does the state have the power to shut down an individual liberty absolutely? When the directive was challenged in the judiciary, the appeals court upheld Newsom’s directive in South Bay United Pentecostal Church v. Newsom. In a sense of irony, the authors of the majority opinion, Judges Barry Silverman and Jacqueline Nguyen appointed by Presidents Clinton and Obama quoted Justice Robert Jackson. Jackson argued “if a court does not temper its doctrinaire logic with a practical wisdom it will convert the constitutional Bill of Rights into a suicide pact.” Ironically, Silvermen and Nguyen were arguing that practical wisdom is the government suspending liberty in a state of emergency and the court affirming this practice. Huh? I don’t understand the practicality of this “wisdom!” If this is the practical approach, I am afraid to ask what the “suicide” result would be. And Jefferson continues to opine, people be on guard!