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| Montesquieu |
There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice… To become truly great, one has to stand with people, not above them… Power ought to serve as a check to power – Baron de Montesquieu
Some court decisions ring like liberty bells because they touch the very marrow of American democracy. There were two questions, one infinitely more important than the other, presented in a suit brought by The Connecticut Freedom Alliance before Superior Court Judge Thomas Moukawsher, which was summarily decided on March 8. The first issue concerned the wearing of masks.
The second more important issue was: Did Governor Ned Lamont’s edicts imposed during the Coronavirus epidemic in Connecticut violate the constitutional doctrine of the separation of powers, the cornerstone of our American Republic?
In a “Memorandum
of Decision on Summary Judgment”,
Moukawsher ruled that they did.
On the question of mask wearing, the court decided not to decide whether a gubernatorial order requiring children to wear masks in schools recently opened violated state and federal constitutions. The issue, the court said, had not yet judicially matured, and Moukawsher punted the decision to Connecticut’s Supreme Court. All but three justices have been nominated to the state’s high court by progressive Governor Dannel Malloy.
In point of fact, so
called “science” on mask wearing is inconclusive and shifting. Most recently “science
experts” have disclosed, presumably on the basis of reliable “scientific” data,
that three rather than six feet distancing is sufficient to ward off Coronavirus infection, and statistical reporting on infections and deaths from Coronavirus
across the nation illustrates little difference between states that have and
have not closed businesses or forced populations to self-quarantine. Business
closures and self-quarantining present fatal problems of their own. And, of
course, all the scientific data shows that contagion and coronavirus related deaths among school children and adults sixty-five and
older are not at all comparable, which is why schools across the nation are now
opening at a rapid pace.
On the overriding
issue – do governmental edicts that lack legislative assent violate the
separation of powers doctrine? – Moukawsher’s memorandum was robust and
unequivocal. The executive power cannot, he asserted, make laws without the
explicit affirmation of Connecticut’s General Assembly. In addition, the judge cited
a series of authorities on the importance of the separation of powers doctrine
– including John Locke and Montesquieu, two important political philosophers
from whom the founders of the American Republic drew their ideas in forming the
U.S. Constitution and, derivatively, the new nation.
Every significant
political decision affecting the whole polis reduces to two questions: a) What
is to be done? And 2) Who decides what is to be done?
In a representative
and constitutional system of government such as that of the United States, the
answer to the first question is that the people’s representatives are to decide
what is to be done about, to choose but one example among many, the
Coronavirus infestation. On this first question, one always lives and learns
that some legislatures are more astute than others.
But in a
Constitutional frame of government rooted in a division of powers that stands
as a sentinel protecting individual liberties from the ever-present autocratic
temptation that in the past has destroyed functioning republics, there can be
no division of opinion concerning the second question: Who is to decide what
shall be done?
Tossing about in his
courtroom the question – has Governor Ned Lamont exceeded his constitutional
authority in the exercise of his Coronavirus related executive dictates? --
Moukawsher has written a 36-page decision that easily may serve as indispensable primer on the question of the constitutional separations of
powers.
In a recapitulation
of his memorandum,” Moukawsher noted, concerning the exercise of Lamont’s
extraordinary executive powers:
To recap, the court believes it
likely that without legislative action the Governor will have exceeded his
constitutional authority. There are likely defects in the text of the emergency
statutes and in the Governor's use of them.
The key points are:
• The Connecticut Constitution does not
permit the General Assembly -- no matter how willingly -- to grant legislative
power to the Governor without limits on what he can do, how he can do it, and
how long he can do it.
• General Statutes §28-9 must include a way
for the General Assembly to disapprove all orders the Governor issues under the
statute.
• For his orders to date, the Governor must
submit his orders to the General Assembly to be ratified or rejected.
• Orders issued under General Statutes §28-9 are only valid for six months. The statute does not say the Governor may renew them without legislative action. Therefore, the Governor must ask the General Assembly to renew his power to issue further orders. No powers granted under the act may be for unlimited duration.”
Following the
court’s memorandum, the tone changed radically at both the Capitol and the
governor’s office.
Lamont noted curtly,
“I can’t do all this by fiat.” And
Democratic House Speaker Matt Ritter told News 8’s Chief Political
Correspondent Jodi
Latina, “his staff is going
through every document to see which policy will stay and which will go.”
Hopefully, one of the General Assembly policies that will go is virtual government. Considering the availability of the Coronavirus vaccine in Connecticut, there is no longer any reason why General Assembly members and staff cannot be inoculated and meet to discharge their constitutional obligation other than virtually at the state Capitol.
A lone dissenter to
constitutional government is President Pro Tem of the Senate Martin Looney, who
has said he may not be prepared just yet to resume democratic government in
Connecticut, the kind of government in which people in the state are
permitted open rule through their elected representatives rather than virtual autocratic rule by
the leaders of the state House and Senate and the General Assembly’s Democrat
caucus.
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