The Governor, the COVID-19 Pandemic, and the Constitution

In the struggle against COVID-19, policymakers are balancing the health of the people they serve against other important things: work, family life, education, social gatherings, religious worship, and liberty. These things, while they are not life itself, are, to most, at least part of what gives life its joy and flavor. They are the things that liberty, which was at the heart of the Revolution that gave us the Commonwealth of Virginia, serve and make possible.

On Tuesday of last week, Virginia Governor Ralph Northam issued Executive Order 53, which he augmented with Executive Order 55 on Monday of this week. Together these efforts represent his Administration’s balance between liberty and the spread of a communicable disease.

His orders ban both public and private gatherings of more than ten people and ban leaving the house except for certain approved purposes. He makes violations of these orders punishable by fines and jail time. In doing so, he exempts some gatherings from the decrees, declaring them “essential.” While his list of “essential” activities includes the operations of the media and the government, it does not include religious services.

Virginia is now living in a strange reality where, by two strokes of his pen, the governor has essentially criminalized the everyday life of Virginians. Work, family gatherings, education, graduations, and the worship of Almighty God, could get you fined or thrown in jail. Virginians should think long and hard about that.

One thing that most Virginians will be quick to realize is that such threats are overkill. The vast majority of people (including me) have accepted that the pandemic has made social distancing a prudent course of action for a time, until conditions are more favorable to combat the disease, and are willing to accept the guidance of experts on the matter. Most religious congregations, including my own, are strictly following these guidelines and have canceled public in-person gatherings. Even the smallest and most vulnerable businesses are heeding the advice of public health experts and are closing, with their owners and employees remaining at home.

Most Virginians, however, will sense that something more than just overkill is in play, and they would be correct. In Virginia, which was founded on the idea of popular sovereignty, and is governed according to a Constitution that protects our personal liberty, the Governor cannot go as far as he has. It is not possible to reconcile these Orders with the text of the Constitution they invoke, which protects the right to peaceably assemble (Virginia Bill of Rights, Section 12) and the free exercise of religion (Virginia Bill of Rights, Section 16).

The most a government that respects its constitutional limitations can do is offer a strong recommendation, back it up with compelling arguments grounded in the best learning on the topic, and repeat it. It crosses a bright ontological line—one that people have died to draw—to go from offering a recommendation to issuing an order, one that the Executive will enforce with fines and jail time. This is especially the case when there is no need for imposing such measures on people who are behaving this way anyway.

Instead, with these orders, the Governor has needlessly complicated his response to the pandemic by taking reasonable, life-saving health guidance and turning it into a crusade against civil society. He has heaped both a constitutional and moral crisis on top of the existing health and economic crises. He has created a necessity for vigilant citizens to work to defend the constitution while trying to stay healthy and financially solvent.

When our forefathers enshrined in the Constitution the freedom to peaceably assemble and the right to the Free Exercise of religion, they did so knowing that these freedoms would come under attack, and had wisdom deep enough to know that this was most likely to occur during a crisis. Where there is tension between measures intended to protect life and the liberty to enjoy it, our Constitution has already struck a clear balance. It does not guarantee us perfect health or freedom from disease; it guarantees us liberty. If that is unsatisfactory to some, they must change the Constitution.

Hopefully reason will prevail with the Governor, and he will revise his approach. If he does not, the people will have an obligation to work to reverse his decrees.

A health crisis, however severe, is no excuse to trample the Constitution. In some respects, the willingness of Virginians to take the measures necessary to protect their health makes this an easy case. If the Governor does not readjust his approach, however, the situation will escalate, causing unnecessary controversy and risk. The Governor has an obligation to work harder to strike a balance that heeds the Constitution.

Scott Lloyd is an attorney from Front Royal, Virginia.