The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. -- Tenth Amendment, United States Constitution
As of May 6, 43 states are locked down by order of their governors. In not a single case was the Legislature convened by a governor in order to authorize the lockdowns. The lockdowns have been unilateral actions.
No legislature has complained.
There has been no systematic filing of lawsuits by public interest law firms either on the Right or the Left.
We are living in a period of American history that is unique. The secession of the South in 1860 and 1861 was declared illegal by the national government, and it resulted in the Civil War. But this is completely different from secession. This is consistent with the 10th amendment.
The secession of the South in late 1860 and early 1861 was fundamentally different from what we see today. That was an organized movement. It was the attempt to create a separate nation. The South had its own constitution. The South collected tariff taxes in the name of the Confederacy. What we're seeing today is completely different. This is the first truly decentralized tyranny in American history.
Across the nation, governors have acted independently. They have locked down their states. They have placed two-thirds of the American population under the equivalent of house arrest. Yet, according to the 10th amendment, there is nothing that the government in Washington can do about this.
The only way for Washington to intervene constitutionally would be by invoking the 14th amendment, which was passed in 1868 after the Civil War. It was part of Reconstruction. Only by way of the 14th amendment are the freedoms lodged in the national government legally enforced on state and local governments. This power to intervene has overturned much of the 10th amendment. It is not quite a dead letter, but it is in the intensive care unit.
Conservatives say they are in favor of original intent. They want the Constitution interpreted by judges in terms of the language and political concepts prevalent in 1787. Liberals have opposed this interpretation. They want the judges to adopt some form of linguistic and judicial evolutionism.
Donald Trump could issue an executive order that would overturn the lockdowns. He has refrained from doing so. Whether an executive order would be enforceable in the courts is a legitimate judicial question. But the issue has not arisen because Trump has remained on the sidelines.
The Framers of the Constitution lodged no power in the federal government that would enable the federal government to reverse decisions made at the state level. This is the situation in which we find ourselves today. Tyranny on a scale not previously seen in the United States is now the law of 43 states.
In the past, conservatives and libertarians have placed their faith in political decentralization. The lockdowns are the greatest historical challenge to such faith in decentralization in American history.
The immensity of the damage economically that is being imposed on the American people is unprecedented in peacetime. I would go further. I think it is unprecedented in American history. Even during World War II, there was nothing comparable to putting over 33 million people (so far) out of work. But that is what has been done in the last two months.
In principle, America has now crossed the Rubicon. Yet it has not crossed it as a result of direct intervention by the national government. This system has been imposed on a completely decentralized basis by means of executive orders in 43 states. There is no coordination. I have not seen a single conspiracy theory that would point to some secret meeting of the 43 governors to implement this program. This is exactly what it appears to be. It is a shutdown of most of the American small business economy as a result of what appear to be well-intentioned governors, who are acting as tyrants. We should call them tyrants. This is tyranny. There is nothing comparable to this in the history of the country. Yet the people are accepting it.
I hope that nothing like this again takes place. I hope this does not establish a political precedent. But, should the country ever be faced with a pandemic again, I think we can expect to see a replay of this scenario. The one hope is that this pandemic turns out to be a dud, so governors in the future will not have the courage to imitate the governors of 2020.
Conservatives had better come to grips with this fact: the 10th amendment did not protect us. On the contrary, the 10th amendment left them at the mercy of 43 tyrants who decided they had the authority, the moral obligation, and the power to shut down their state's share of the national employment base.
The possible good news is that the fiscal effects of the shutdowns, when coupled with the fiscal effects of unemployment insurance payments to 33+ million extra Americans, will bankrupt some of the states. Then we will see an appeal by the governors for the federal government to intervene and bail out all of the states. So, we may get the worst of both possible worlds: economic tyranny on a decentralized basis, and the added costs of bailouts at the national level.
A bill for a $500 billion bailout of the states has been introduced in the Senate. I hope that the Senate will refuse to pass it or anything like it. I have little confidence that it will.
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