The right of self-determination
COVID-19 has perhaps done more to underscore the concerns that our citizens have about their rights as citizens of the United States.
The unchecked powers of a governor, upon the declaration of an emergency, have raised the specter of fear in the hearts of patriots throughout our great nation. Freedoms previously taken for granted are being challenged by the extraordinary powers given by state legislatures to their governors in years past.
The rebellion against these draconian measures has begun. State legislatures found themselves in a quandary. No one expected the complete abuse of laws meant to protect the public under very unusual circumstances. No one expected that such an abuse of power could rest upon the whim of one executive, a governor, and an unelected secretary of health.
Citizens question the severe limits put on their constitutional rights due to the pandemic. The stay-at-home orders and determination of life-sustaining versus nonessential workers were done without due process.
The Bill of Rights seemed to no longer apply, confusing citizens who felt that such rights were sacred. Their property and right to work were taken without compensation and/or explanation. The right of free assembly was stripped. Freedom of religion was threatened overnight.
Hospitals were shut down for elective surgeries. Unemployment skyrocketed. Stimulus bills in the trillions of dollars were passed, thrusting the nation deeper into debt. Cries and exhortations about our constitutional rights seemed to fall on deaf ears. As time passed, the discontent increased. The public began to realize that the very framework of the government that they thought was there to protect them was in fact denying them the right of self-determination and other basic freedoms.
This debate about individual rights and freedoms has been a struggle since our founding. The Constitution had to be amended for us to have the Bill of Rights.
The Civil War created a climate for additional amendments that amplified whether the Bill of Rights applied to the states as well.
One of the greatest changes in the interpretation of the Constitution came with the passage of the 14th Amendment. It was designed to assist newly freed slaves in the transition to freedom, to protect them from acts of the Southern states and to overturn the Dred Scott decision that ruled people of African descent could not be U.S. citizens even if they were born here. The amendment succeeded legally, if not in reality.
But this sentence has had long-lasting implications on the application of the Bill of Rights to the states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Due Process Clause has been interpreted as applying the Bill of Rights to the states. Known as “incorporation,” the application of the Bill to the states did not come all at once.
Even today, there are some parts of it that have not been incorporated. The process began unsuccessfully in the late 1800s and continued unsuccessfully right up until the 1930s. In 1947, however, in Adamson v California, the Supreme Court began to accept the argument that the 14th Amendment requires the states to follow the protections of the Bill of Rights.
As the pandemic hopefully subsides, the battle over the unchecked emergency powers of governors of the 50 states will begin in earnest. The challenges that will occur as a result of these poorly designed laws giving such powers to one chief executive will see greater definition and clarity because of the abuses seen in many of the states during this pandemic.
The very fabric of our nation and the rights of our people are at stake. The rights enumerated in the Bill of Rights and Constitution should be the highest law in the land. State legislatures, governors and courts need greater clarity on their roles during an emergency. Until then, the Legislature yields the power of the budget to rein in an out-ofcontrol governor.
To have thought that COVID-19 would pinpoint such weaknesses in our rights was once unfathomable, but it will become the rallying cry of our republic until it is fixed.
State Rep. Frank Ryan is a Republican who represents Pennsylvania’s 101st House District in parts of Lebanon County.