So far on this forum, I have laid out the case why the lockdown edicts of the Texas governor, county judges, and mayors are not authorized by Texas law or the Texas Constitution and are more destructive than the good they have done. I have also described the growing resistance movement in Texas to lockdown.
In this piece, I lay out a vision of how we make sure that such destructive, unconstitutional, lockdown actions are never taken again in Texas.
First, let’s sketch the constitutional argument against lockdown once again. As the Texas Supreme Court said just last week in the case, In re Abbott:
“The Constitution is not suspended when government declares a state of disaster.”
And as Justice Don Willett said, “The Texas Constitution – then and today – exists to secure liberty.” Nowhere does the Texas Constitution say that the goal of the government created and defined by it places health and safety or the common good as a purpose of government. The goal is to protect the liberty of Texans to live their lives as they choose.
Texas government clearly does have the police power as part of the ordered liberty it protects to create laws to stop individuals from harming or threatening other citizens. But the limit of the police power is that there must be proven harm or threat by an individual before his or her freedom can be limited.
Lina Hidalgo, Harris County County Judge expressed the rationale of the lockdown orders as well as anyone could last week when she defended her power to force Harris County residents to wear masks in public. She said her justification was that anyone of us might be a danger to others. To restrict liberty without proving a threat or harm is not within the proper police power of the state. It is pre-crime thinking. It is a violation of due course of law, restricting liberty by merely alleging (without proving) that a threat might exist.
So what are citizens to do when all levels of their government are violating fundamental, natural rights, destroying their livelihoods and shredding the Constitutions designed to limit governmental power within proper bounds?
The answer is to take action on many fronts. Some of those important actions are:
1) Urge the Texas judiciary to honor their oaths and strike down the edicts of the governor (and Texas subdivisions) via judicial review using the Texas Constitution. If you are a small business person, think about whether you could be a plaintiff in a lawsuit to declare the edicts unconstitutional. If you are an attorney, be thinking about how you would argue such a case or what other attorneys might if you cannot. We may have to crowd fund such suits. Some are already under way.
2) Mass noncompliance with the null and void edicts of the governor, county judges, and mayors. This will lead to testing the constitutionality of the actions of Texas officials via the criminal justice system, one defendant at a time. This will also require crowd funding of the legal defenses of those targeted by officials for prosecution. And it will need jurors to exercise their power of jury nullification.
3) Engage in a full throated discussion of the illegitimacy of the Texas officials’ edicts in many ways including rallies, calls to talk shows, letters to the editor, comments on online articles, social media, etc.
4) Redress the grievance of these destructive and unconstitutional acts via petitioning (i.e., contacting) legislative officials, urging them to defend the separation of powers provision in Article 2, Section 1 of the Texas Constitution. We are coming up on general election season. Our elected officials are more open to hearing your point of view when seeking your vote than at any other time.
5) Work in your counties to pass resolutions that condemn the unconstitutional acts of the governor. There is already a movement to create “sanctuary” counties for state and federal violations of the natural right to keep and bear arms. We need a Coronavirus Edict Sanctuary movement in Texas counties against the governor’s unconstitutional edicts.
6) Work at the state conventions of the political parties of Texas this summer to pass resolutions and platform planks condemning the unconstitutional acts.
7) Have conversations with your local district attorney and sheriff about the use of the Texas Official Oppression Act (Texas Penal Code 39.03) against unconstitutional action by Texas officials. That act makes it a Class A misdemeanor to knowingly violate the rights of Texans.
8) Be thinking of legislative changes needed to make sure this never happens again. And then start preparing for the Texas legislative session in early 2021. This will be difficult for two reasons. First, changing the law requires the governor to sign off. Second, the Republican legislators in the majority in Texas are VERY deferential to the governor because he has a lot of power to determine whether they get re-elected. But even an effort that ultimately loses because of the governor’s opposition can be worthwhile because of the public debate and the minds that can be changed as a result.
As far as mass noncompliance goes, it is important to describe it as just that. Oliver Ellsworth, a delegate to the Constitutional Convention, and ultimately a U.S. supreme court justice, said in the Connecticut ratifying convention, “If they make a law which the Constitution does not authorize, it is void.”
Alexander Hamilton in Federalist 78 said, “There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.”
Both the Texas Constitution and the U.S. Constitution make it clear that we the people are the sovereigns in our system and that those who serve in government are our servants. It is improper and self-defeating to call resistance to an unconstitutional act “civil disobedience.” When our government servants violate the supreme law of the land (and therefore the people’s will), it is they who are disobedient, not us!
Note that this piece has been focused on Texas – Texas Bill of Rights, Texas elected officials, and the Texas judiciary. That is because it is Texas elected officials that have been the cutting edge of the unconstitutional sword in this situation. And also, the Texas Bill of Rights was implemented as the primary means to restrain Texas governmental officials. Yes, the Fourteenth Amendment of the U.S. Constitution does restrain state officials in some matters, but the Texas Constitution restricts Texas officials more than the U.S. Constitution does and both the U.S. and Texas supreme courts have recognized that the Texas judiciary and the Texas Bill of Rights prevail in their more strict limits on Texas officials when the U.S. Constitution and/or judiciary is more lenient.
This is not a situation where the feds will be (or should be) helpful. If we are going to use judicial review, it must be in the Texas judiciary under the Texas Constitution.
Finally, a word about politics, here. I presume that a number of readers of this piece are (or have been) supporters of Governor Greg Abbott (especially in comparison to any Democrat that might run against him). This initiative to protect liberty is not a personal attack on the governor. It is a principled defense of the Constitution and our liberty. It is an exercise that looks at the objective standard of the Texas Bill of Rights and judges the actions of the Texas governor against that standard. When you enforce any law, including the supreme law, the exercise must be done by applying the letter and principle of the law against the actions of the actor being judged.
At this juncture, we don’t even know whether the governor will run again in 2022. If he does, there will probably be a challenger in the GOP primary, and this issue will definitely be part of the debate within that primary. This effort to make sure that our liberties will not be violated again is one that seeks to protect liberty against future unconstitutional acts by future governors. It is a matter of principle. And it is principle that matters, here.
We indeed are at a critical juncture in the future of liberty in Texas. We Texans are going to have to prove that we are capable of self-government and control of our servants in office. The fate of millions of future Texans depend on the actions we will take over the next year or so in reaction to this unprecedented violation of our fundamental liberties and charters.
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.