Comment: Their constitutions put states in charge for reason
Published 1:30 am Tuesday, April 21, 2020
By Liz Covart / The Washington Post
Forty-two states, three counties, nine cities, the District of Columbia and Puerto Rico have ordered residents to close physical locations for nonessential businesses and to stay at home to combat the Covid-19 pandemic. These orders disrupt lives and threaten livelihoods; and have stirred conservative protests.
On Friday, President Donald Trump’s tweets to “LIBERATE MINNESOTA,” LIBERATE MICHIGAN” and “LIBERATE VIRGINIA,” further fueled discontent with these orders.
In many ways, Trump is invoking a key characteristic of American identity: weariness of strong government. But there is another equally important American tradition that he is disregarding: the revolutionary idea that governance of the nation should come from the states. Known as antifederalists by the late 1780s, these Americans believed the best response to too much government power was to vest more power in state governments. They considered state governments as governments of the people, the type of governments where the people are most heard and the form of government best thought to enact measures for the public good.
The fate of our Covid-19 response seems to depend on whether this early constitutional tradition can keep enough Americans at home to sufficiently slow the spread of the coronavirus; and calm the partisan flames the president is attempting to stir.
American wariness of strong government dates to the 17th century. In 1620, a group of Church of England separatists crossed the Atlantic Ocean and settled in Plymouth, Mass., to be free from government oversight in their practice of religion. But for most American communities, fears of strong government solidified during the American Revolution.
When the Seven Years’ War ended in 1763, the British Parliament devised measures to fund its war debt and to better regulate and control the governance of its colonies. These measures included the Sugar Act (1774), the Quartering Act (1765), the Stamp Act (1765), the Declaratory Act (1766), the Townshend Duties (1767), the Tea Act (1773) and the Coercive Acts (1774).
Parliament designed the Coercive Acts in 1774 as punitive measures against Massachusetts for the Boston Tea Party. These acts closed the Port of Boston, replaced the civilian-led government of Massachusetts with a military government, required British officials charged with capital offenses to be tried outside of Massachusetts and expanded the Quartering Act.
These forceful measures reverberated across the colonies and prompted many colonists to consider how the British government might execute similarly intrusive and disruptive acts in their own communities and colonies. As Edward Shippen of Pennsylvania wrote in June 1774, everyone knew Boston had not stood alone in protesting against the Tea Act, that Parliament had “written with lime juice” (an ingredient of invisible ink) the names of the other colonies on the acts. Richard Henry Lee of Virginia noted that everyone saw through the Coercive Acts “instantly, and every one declared it the commencement of a most wicked System for destroying the liberty of America.”
American fears of Britain’s strong government actions culminated in the War for American Independence; an eight-year struggle for the freedom to create new state and national governments that would be responsive to the people and remedy the intrusive and oppressive nature of the British government in their lives.
The nation’s first constitution demonstrated Americans’ wariness of strong government and anti-Federalist ideas about government. The Articles of Confederation detailed “a league of friendship” between 13 sovereign states. The states agreed the Confederation government could conduct war, make peace, enter into foreign alliances and resolve disputes between member states. Otherwise, the states retained the power to raise taxes, regulate trade and govern as their citizens saw fit.
Americans’ suspicion toward government authority also shaped state constitutions, as did regional ideas about the role of government. For example, the Constitution of the Commonwealth of Massachusetts stands as the oldest functioning written constitution in the world. Bay Staters have amended it just 120 times in the past 240 years.
Drafted by John Adams in 1780, the Massachusetts Constitution states that the constitution is a “social compact,” a document in which all citizens agree to be governed by certain laws in an effort to serve and protect “the common good.” From there the document outlines 30 articles and a structure of government, including Article IV which stipulates that “the people of this commonwealth have the sole and exclusive right of governing themselves.” The people of Massachusetts have a cultural and political tradition of holding their government accountable so that it protects their rights and governs in a way that benefits the common good. This is why Gov. Charlie Baker in late March appealed to Bay Staters’ “common sense” and issued a stay-at-home “advisory” instead of an executive order.
Alabama offers a different example, as it has had six constitutions. Drafted in 1901, its present constitution has been amended more than 800 times and is the longest written constitution in the world. Its first section delineates the rights of the people of Alabama in 36 articles. Article Two notes “that all political power is inherent in the people.” The 35 other articles detail restrictions on government action in citizens’ lives. At all times, according to Article 35, “The sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.”
Out of deference to these constitutional limitations, Gov. Kay Ivey delayed issuing a statewide order for residents to stay at home until April, initially viewing it as an act of government “usurpation and oppression.”
Over the past 400 years, Americans have proudly passed on a cultural and political tradition of suspicion and resistance when it comes to strong government. The executive orders and advisories requiring residents to stay home to slow the growth of the Covid-19 pandemic directly challenge this cultural and political tradition of caution and hark back to the anti-Federalist line of thinking that most government power should be located within the states.
But there is another aspect of constitutions on which federal authorities and state governors are relying: the interest of the people. What happens when the interest of the people demands government authority? Americans have almost always grappled with this question and how to answer it through their state governments.
When it became clear in 1787 that the central government provided by the Articles of Confederation proved too weak to handle the problems of the people — postwar problems of debt repayment, foreign relations and trade disputes between the states — the Confederation Congress asked the states to “send forward delegates to meet the proposed [constitutional] convention … for the sole and express purpose of revising the Articles of Confederation.” This left it to the states and their respective people and representatives to debate what they viewed as the Confederation’s problems, how they might fix those problems and to send delegates who would advocate for their state’s views.
Similarly during the Covid-19 pandemic, Americans are also responding to the question of how to meet the interest of the people with government authority through their state governments. Some states have met this challenge by moderating the language they use to issue their stay-at-home orders. For example, New York Gov. Andrew M. Cuomo noted that New Yorkers would not be sheltering in place but “pausing” life as they work to slow the spread of the virus. Other states such as Florida and Kansas allowed county and municipal governments to take the lead with stay-at-home orders before issuing statewide orders. And still other states including Oklahoma, Utah and Wyoming are resisting statewide shelter-in-place orders in favor of allowing county and municipal governments to act.
As Covid-19 grows in each state, Americans may be forced to accept that the tradition of liberty first established in 1620 may not be compatible with 21st century health and security threats or ideas about how they think the national government should act during a crisis. And as they grapple with that reality, Americans will probably continue to turn to state governments, the governments created to be responsive to and protective of the regional people they serve, for leadership.
Liz Covart is a historian and digital projects editor at the Omohundro Institute of Early American History and Culture. She’s also the creator and host of “Ben Franklin’s World: A Podcast About Early American History.”
