by James C. Sherlock
Sic Semper Tyrannis
Kerry Daugherty, as is her want, posted a particularly compelling essay today. The most important thing Kerry wrote was: “Please let there be another lawsuit. And let it get to the Supreme Court…. Seems only the courts can save us from these tyrants.”
She is absolutely right.
Article IV of the United States Constitution
SECTION 4. The United States shall guarantee to every State in this Union a Republican Form of Government
From contemporaneous notes from James Madison:
“Resd. that a Republican government . . . ought to be guaranteed by the United States to each state.” 1 M. Farrand, The Records Of The Federal Convention Of 1787 22 (rev. ed. 1937).
In a letter in April, 1787, to Randolph, who formally presented the Virginia Plan to the Convention, Madison had suggested that “an article ought to be inserted expressly guaranteeing the tranquility of the states against internal as well as external danger. . . . Unless the Union be organized efficiently on republican principles innovations of a much more objectionable form may be obtruded.”
Edmund Jennings Randolph of Virginia, supporting Madison’s version pending then, said that
“a republican government must be the basis of our national union; and no state in it ought to have it in their power to change its government into a monarchy.”
Madison and Randolph were prescient. Governors love kingly authority.
It is an ironic twist of fate that this was part of the Virginia Plan that survived into our current constitution. The sentiment also made it into the Seal of the Commonwealth.
Welcome to an “innovation of a much more objectionable form,” Under current Virginia law the Governor activates for himself the emergency authorities contained in state law by declaring an emergency. Those authorities are effectively unlimited either in scope and time, and the law does not require him ever to consult the General Assembly on exercising them.
For those who think Governor Northam’s rule-by-decree authority must surely run out at some time soon, you are wrong. This current emergency declaration runs out in May of next year, but he can under Virginia law immediately declare a new one and proceed under that declaration for the rest of his term.
State laws like Virginia’s that give the Governor unlimited authority for an unlimited period of time without participation of the legislature are, to me, clearly violations of United States Constitution clauses that guarantee each state a republican form of government.
They also permit violations of constitutionally guaranteed freedoms, which can be acceptable for a limited period of time for a specific time-limited emergency, like a flood or a riot, but cannot be open ended and capricious, like we are seeing here.
In many states, State Supreme Courts have intervened to require legislative participation and/or to reverse orders that were restrictive of personal freedoms in capricious ways.
Virginia’s Supreme Court, as we saw in its intervention to do the Governor’s specific bidding in denying commercial landlords access to Virginia courts, itself an unconstitutional act, is part of the problem, not part of the solution.
The General Assembly, to its shame, has shown no appetite for changing the current law and reclaiming its constitutional authority.
We need a clear ruling by the United States Supreme Court:
- finding unconstitutional a state law, like Virginia’s, that grants unlimited emergency authority to the Governor alone for an unlimited period of time; and
- finding unconstitutional actions by Governors, legislatures or state courts that use emergency authorities capriciously to violate constitutional rights of citizens
Only such a ruling will settle this issue in Virginia and nationally.
May it happen soon.
