We have been told repeatedly here in Texas over the past month that a statute in the Texas Government Code, Chapter 418 entitled Emergency Management authorizes powers to shut down businesses, prohibit assembly, and order people to stay at home except for defined purposes to the governor, county judges and commissioners courts, and mayors and city councils. We are told this is OK because the legislature delegated such powers to violate fundamental, natural rights, specifically identified for protection in the Texas Bill of Rights.
For those who value liberty, there are several questions. Does the Texas Constitution authorize the legislature to delegate such power to the governor and subdivisions of the state? Which was our framework of government designed to protect more – liberty or safety? Are we supposed to have citizen-directed government or government-directed citizens?
Let’s start with this provision in the Texas Bill of Rights:
Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.
Do these words sound like there is any wiggle room? Do they allow any branch or level of state government to say that an emergency justifies violating the fundamental, natural rights listed in the Texas Bill of Rights? I don’t think so.
In his Executive Order (EO-GA-14) issued on March 31, 2020, Governor Abbott said the following:
"WHEREAS, under Section 418.012, the “governor may issue executive orders … hav[ing] the force and effect of law;” and . . .
WHEREAS, under Section 418.173, failure to comply with any executive order issued during the COVID-19 disaster is an offense punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both fine and confinement."
If those orders violate a provision of the Texas Bill of Rights that protect your natural rights to earn a living, assemble, or worship, can the Texas Legislature delegate the power to violate such to the Governor (or to counties or cities)? I don’t think so.
Here are just a few provisions of the Texas Bill of Rights to ponder:
Sec. 27. RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; . . .
Sec. 16. BILLS OF ATTAINDER; EX POST FACTO OR RETROACTIVE LAWS; IMPAIRING OBLIGATION OF CONTRACTS. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.
Do you think that a prohibition on doing business “impair[s] the obligation of contracts?”
The Texas Supreme Court has used Section 19 of the Texas Bill of Rights that says that “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land,” to protect economic liberty and the natural right to earn a living.
Our government was created to protect liberty and establish the rule of law, not to protect us from harsh reality and nature. Ordered liberty does require us not to knowingly endanger others. If you know that you are contagious with a deadly disease, you are a threat to others, and government has the right to use force of law to isolate you to protect others. It can even quarantine you if you have been exposed to the disease, but you show no symptoms.
But the reality of coronavirus is that you might have the disease and be contagious without knowing it. Based on the principle that anyone MIGHT be a danger to someone else, all levels of our government have decided that they can restrict everyone’s liberty. Implementation of that principle is the destruction of liberty. It is Minority Report, pre-crime thinking. And it is fundamentally at odds with our Texas Bill of Rights.
And of course, if you own your life, you get to decide what risks you take with it. Government nannies cannot rightfully decide whether you should take a risk to earn a living or otherwise enjoy life. Ours is a republic of citizen-directed government, not government-directed citizens.
But people are dying some say. First off, if people are given the facts of the dangers, those who are most at risk can take aggressive self-isolation measures if they so choose. South Korea gave people information and choice and lots of testing and voluntary changes in behavior helped them weather the storm. Destruction of people’s liberty and their livelihoods and fortunes is not required to keep those most at risk safe.
Liberty lets us each assess the facts of reality and set an appropriate course based on our values and circumstances. Command and control destroys lives, prosperity, and liberty.
There is not a lot we can do right now during the storm exacerbated by government dictates.
But we need to get ready for a vigorous debate about the limits of governmental response to emergencies in our constitutional republic. We need to get it straight about which takes second fiddle when liberty and safety are presumed to collide. And we need to get it straight about who runs each Texans’ life. Is it government experts, or does each person in Texas own themselves?
We need to ask if we are still committed to the second provision of the Texas Bill of Rights:
Sec. 2. INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government . . .
Tom Glass lives in Northwest Harris County. Click here to reach his email. He is also on Facebook as Tom G Glass. He leads a group called Texas Constitutional Enforcement which can be explored at its website or Facebook group.