I’m surprised that Rich Elfers, an adjunct professor and former high school teacher of civics would make such an elementary mistake in his 5/27/20 article (“It’s tough to balance individual rights with the greater good”) regarding pushback against COVID-19 regulations. Elfers claims that a governor derives his authority to impose social distancing and business shutdown rules from the role of the government as stated in the preamble to the U.S. Constitution. First, the preamble is an introduction to the law of the land; it is not the law. It does not define government powers or individual rights. Second, the Constitution is the foundation of powers granted to the federal government and the establishment of the executive, legislative, and judicial branches. Our state’s preamble reads as follows: “We the people of the State of Washington, grateful to the Supreme Ruler of the Universe for our liberties, do ordain this constitution.”
Governors derive their powers from their own state constitutions. And, like the federal constitution, preambles do not confer power or authority – they simply introduce the rationale behind their establishment. The authority by which governors impose oppressive restrictions on individuals and businesses is through laws granting special powers pursuant to a declaration of a state of emergency. Yet, even Governor Inslee realizes that emergency powers are limited by the federal constitution’s Bill of Rights and state equivalents. Inslee recognized this in his recent order allowing places of worship to reopen by stating, “Religion is constitutionally protected. So we think it deserves an extra degree of acuity in figuring out what is in the realm of the possible.”
Elfers seemed particularly annoyed at the Wisconsin Supreme Court’s interpretation of their state constitution. In that case the Legislature pushed back against their governor’s orders because he didn’t follow the rule-making process which requires legislative input. As Justice Kelly wrote in the ruling, “This comprehensive claim to control virtually every aspect of a person’s life is something we normally associate with a prison, not a free society governed by the rule of law.” Yet Elfers mysteriously chides the Wisconsin Court for not abiding by four words from the U.S. Constitution’s preamble, “promote the general welfare.”
Are we to believe that a governor’s dictatorial edict which bypassed input from the state’s elected legislative body is protected from review by those four words? By that logic, any order for any reason that purports to promote the general welfare should be free from scrutiny. Not yet through ranting, Elfers rails against citizens protesting impacts from lockdown orders by analogizing them to high school boys who proclaim, “You can’t tell me what to do.”
Perhaps Mr. Elfers didn’t get past the Constitution’s preamble and failed to read the well-known First Amendment. It grants “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This right applies even when demonstrators have different opinions than governors or editorialists on how to design rules that best save lives.