Vander Hart: The Bill of Rights Is Not Above Any Governor’s Pay Grade

Last week, Fox News’ Tucker Carlson had a contentious interview with New Jersey Gov. Phil Murphy, a Democrat, about the state’s COVID-19 mitigation policies and their enforcement.

In early April, 15 men were arrested by police at a synagogue in Ocean County in New Jersey during the funeral of a rabbi as a result of the governor’s restrictions.

“The Bill of Rights, as you well know, protects Americans’ rights — enshrines their right to practice their religion as they see fit and to congregate together to assemble peacefully. By what authority did you nullify the Bill of Rights in issuing this order? How do you have the power to do that?” Carlson asked. 

It’s a reasonable question. One I’ve asked myself while recognizing that there is precedent for governors exercising board emergency powers. Are there limits on those powers? What authority do they have to issue such orders? Where in the U.S. Constitution and state constitutions does a governor have the power to infringe on constitutional rights in such a way?

Governor Murphy’s answer was both insightful and appalling. 

“That’s above my pay grade. I wasn’t thinking of the Bill of Rights when we did this,” he responded. “We looked at all the data and the science, and it says people have to stay away from each other.”

It’s appalling because Governor Murphy and every governor take an oath to “protect and defend the Constitution of the United States,” as well as, the constitution of the state they were elected to serve.

And those rights were not even a consideration.

The Bill of Rights is not above any governor’s pay grade.

Governor Murphy’s answer is insightful because I think many governors if they were honest, would say the same.

Public health officials don’t have to consider the Bill of Rights when they give advice. Elected officials must before they take action. They must balance the Bill of Rights with public safety, and most governors have done a poor job of that.

There is no, “but science says” clause in the Constitution that nullifies inalienable rights. There is no language whatsoever that does that. 

Contrast Governor Murphy with South Dakota Governor Kristi Noem, a Republican, who communicated numerous times her desire to protect citizens’ rights and protect public safety.  

She made that the primary point of statement during a press briefing earlier this month.

“My role with respect to public safety is something I take very seriously. (But its) the people themselves [who] are primarily responsible for their safety. They are the ones entrusted with expansive freedoms – they are free to exercise their rights to work, worship, and play – or to stay at home, or to conduct social distancing,” Governor Noem said.

“The calls to apply a one-size-fits-all approach to this problem in South Dakota is herd mentality, not leadership,” she said.

“My responsibility is to respect the rights of the people who elected me, and to manage our state operations in a way that reflects the realities of what we have here on the ground here. On the foundation of my principles, commonsense conservative values, and the principles we hold dear in America, the facts, the science, and the data will guide our decision-making here in South Dakota,” Governor Noem added.

She understands that the Bill of Rights is not above her pay grade. She understands that while she has to consider public safety, she can not sweep aside individual rights in the process. Her approach to COVID-19 has been measured and focused, even amid a large outbreak of COVID-19 at the Smithfield processing plant in Sioux Falls. To date, 83 percent of the state’s 1685 COVID-19 cases are in Minnehaha County that includes Sioux Falls. A good chunk of those consists of the Smithfield Foods plant employees who reportedly did not provide their employees with PPE and did not disclose COVID-19 infections. 

One should also acknowledge that even with a shelter-in-place order, Smithfield Foods would remain open since it is an essential business that provides for the nation’s food supply.

Governor Noem has resisted calls for a state-wide shelter-in-place order for a state where over one-third of the state’s 66 counties has five cases or less per county, and over one-third have none. She has issued orders (see a summary here) that implement mitigation protocols, but respects individual rights and does not shut the state down.

Most importantly, she recognizes that it is South Dakotans who have the primary responsibility for their safety and health.

Governor Noem understands what her job is. Governor Murphy does not. Perhaps if a Governor says that the Bill of Rights is above his or her paygrade or issues blanket orders that illustrate a lack of understanding, it’s time for that governor to find a different job.