Word has it that Gov. Ned Lamont is beside himself. The judiciary isn’t doing enough in this crisis, he is said to mutter. He is said to have ordered, or is contemplating ordering, judges to turn up at the courthouses, even if it is only to punch the clock. Courthouses throughout the state have been effectively shuttered for weeks now, handling only “emergency” matters.
I don’t know if this simply a bit of ill-digested liver on the governor’s part. (Okay, okay – read Dostoevsky’s “Notes from Underground” for the reference; it’s brief; you have time now, sitting home, day after day, letting death statistics do the work baseball box scores used to do.)
By what authority does the governor imagine he can order the judiciary to do anything? The Judicial Branch is a separate and equal branch of government. It is supposed to serve as a check and balance on both the Executive Branch – the governor, and the Legislative Branch; it’s where we the people go to assert our rights and privileges.
No one has suspended the Constitution. It can’t be suspended by executive decree.
Of course, these sorts of things go right over the governor’s head.
I’ll never forget years ago picking a jury in an attempted murder case in Norwalk. The prosecutor in the case was none other than current Chief State’s Attorney Richard Colangelo. On the bench was a crusty old veteran, Martin Nigro.
We were questioning potential jurors about their willingness and ability to follow the law.
In walked Ned Lamont, fresh on the heels of a failed race for the United States Senate.
Voir dire can be tedious; it takes days to question folks about such basics as the presumption of innocence. When Lamont walked in, I was sure this would an easy exercise, a break from the tedium. The man had just run for the highest office in the land. Surely, he was committed to the Constitution.
Imagine my surprise when Lamont could not commit to applying the presumption of innocence in the case. He appeared to understand the concept well enough. He just couldn’t follow it. If the defendant was charged, he must have done something. I heard the answer but didn’t trust my ears. I turned him over to the prosecution to question. Same answers.
In the end, Judge Nigro excused the would-be senator, and now governor, for cause because the man could not follow the Constitution.
He appears to have changed but little over the years.
Yes, we are in uncharted territory. I cannot recall a public health crisis of this sort in my lifetime – and that’s 64 years. The governor has been bold in issuing orders shuttering state government. That’s within his purview. But does he really have the right to shutter the state?
We’re getting inquiries from businesses statewide. Some question why they were not placed on the list of essential services. Think about it: In a public-health emergency the governor declares liquor stores an essential service?
Others question whether the governor really possesses the power, under the state constitution, to shutter businesses at all. Yes, the governor can pound the bully pulpit and exhort us to follow doctors’ orders and recommendations. But does the governor even possess the power to transform us into a public-health state?
Where does this power end? Can the governor use it after the next mass shooting? Aren’t guns a public-health crisis in the eyes of some? Or perhaps the governor can take over pharmacies in an effort to police the opiod epidemic? Or maybe do something about highway fatalities? (As many people a year are killed in traffic accidents throughout the United States as are killed in gun violence.)
Federalism allocates power between the state and federal governments along the following fault line, a line often obscured by judicial fiat: the federal government is one of limited powers; the states possess residual police power to regulate the health, education and welfare of their citizens. But residual does not mean unlimited.
We need open courts to check the power of a governor who thinks a virus grants him the power to suspend fundamental rights. It is the courts’ role, not the governor’s, to set the metes and bounds of the Constitution.
Yes, Connecticut was horribly unprepared to meet the requirements of the pandemic. Let’s not waste time bemoaning that. Hindsight is perfect; the future awaits us.
The Judicial Branch should ignore any order or suggestion from the governor that judges head to empty courthouses. That’s a ridiculous suggestion. Stand on principle and remind the governor that his powers are limited.
But don’t sit home reading caselaw. Figure out how to open the courts, and how we will cope with the flotsam and jetsam of litigation once the pandemic passes. The nation survived the Influenza of 1918. Our pandemic is far less severe.
In the end, the COVID-19 pandemic has inspired dread, fear and panic.
I think we all need to take a deep breath and remind ourselves, and the governor, of the following: It’s just a virus, stupid, and no virus can amend the Constitution.