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Providence and America

The Threat Emergency Measures Pose to our Constitutional Government

The opinions expressed by columnists are their own and do not necessarily represent the views of
National Archives via AP

Contrary to popular belief, the most serious threat to a democratically-elected republican form of government doesn’t come from dictators and demagogues. The most serious threat is a crisis, because it undermines the checks and balances that would otherwise slake political leaders’ unquenchable thirst for more power and control over those they govern.

The history of the world is littered with the remains of free governments that perished in times of crisis. From the death of the Roman Republic to the horrors of the twentieth-century totalitarians, free people have become enslaved to their governments in the wake of one terrible crisis or another.

Which is why, in the midst of the COVID-19 pandemic, we should be wary of the supposed “solutions” ? like rent and mortgage holidays ? that many public officials are pushing as a response. Even if well-intended, such measures will erode important constitutional liberties.

While the nature of our government has changed since 1791, its basic premise that the government must serve the people, rather than the people the government, has remained intact. We’ve had our share of crises, and with each one, we’ve yielded a bit to the temptation to consolidate more power in the hands of those who govern. But we are no dictatorship and not likely to become one anytime soon.

Still, we must be vigilant. With each new crisis, those who lust for power claim this time it’s different, and we must abandon some long-standing principle to survive. Yet we have largely resisted this call. Through the Civil War, two World Wars, the Great Depression, and other daunting challenges, we’ve held on to our liberty. Should things be any different with a great pandemic?

When debating whether we should adopt our Constitution, the generation of 1791 fiercely questioned whether the instrument did enough to protect our liberties. The bitter taste of tyranny was too fresh for some not to fear a new and powerful central government.

Some of that fear was addressed in the Federalist Papers written by three defenders of the new Constitution: John Jay, Alexander Hamilton and James Madison. They catalogued centuries of unsuccessful governments and tyrannies and explained how this time it would be different. They argued that the federal government’s powers were limited and that our system of checks and balances would keep it confined to just those powers spelled out in the Constitution. That, and their agreement to add a Bill of Rights, won the day.

But an often-forgotten part of the debate touched on the ability of the states to create their mischief and what the new federal government could do about it. That’s why the drafters of the Constitution included important prohibitions on what states could do. For example, Article I, Section 10, the Constitution states that states cannot print paper money or make “any law impairing the obligation of contracts.”

Over time the Supreme Court has held that these prohibitions are not absolute. In 1948, for example, the Court rightly held that contracts forbidding homeowners from selling their homes to minorities could not be enforced because, after the Civil War, the Constitution had been amended to prohibit discrimination.

Fast forward to today’s crisis: The state governments have great power to act in emergencies under their police power. But what are we to make of the COVID-19 orders from various governors to stop evictions and create mortgage holidays for people affected by the stay-in-place orders? While there is much to be commended in the instinct to help people hurt by the shutdown, placing the burden on landlords and banks rather than the government creates, in the words of law professor Richard Epstein, a “police power risk of major proportions.”

As the economy tanks and tenants stop paying rent, what are landlords to do? Tenants are still supposed to pay rent, eventually, but how is a landlord possibly going to collect thousands of dollars in back rent should the tenant decide to move after several more months of COVID-19 orders? Sure, a wise landlord will try to cut a deserving tenant some slack, but a statewide “one-size-fits-all” order from a governor is as destructive as it is unconstitutional.

As the Supreme Court explained in a 1933 decision upholding Minnesota law that permitted homeowners to get judge-approved temporary extensions of the time to pay their mortgages during the Depression, there are limits to a state’s emergency powers. The Court explained that “Emergency does not create power” and noted that the “Constitution was adopted in a period of grave emergency.” Yet, even in the Great Depression, the Justices recognized the importance of contracts: while contracts could be adjusted, they could not simply be thrown out.

When a governor orders a blanket order effectively creating a rent or mortgage holiday, the governor is going beyond anything we’ve tried in the past ? even beyond the state schemes that so agitated the drafters of the Constitution. These measures move us closer to the erosion of liberty that the founders fought to forestall ? which would ultimately be a greater threat to our well-being than any virus.

James Burling is vice president of legal affairs at Pacific Legal Foundation.



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