• Christopher Heaps

Practically Speechless

I haven't posted here on Inter Alia since before the pandemic began. The term inter alia means "among others," as I have always viewed the law and the practice of law ultimately as regulating the interactions we have with one another. The abrupt and fundamental change in how we relate to each other over the past few months has left me practically speechless. Hence my lack of posts.

The issues America is facing right now, specifically the coronavirus pandemic and the social revolution in our views of how we treat Black Americans and other people of color, are both deeply personal for me. Both directly implicate the US legal system, and hence me, in my capacity as "an officer of the court" (the court being any state or federal court in Oregon). I am mindful of and agree with the sentiment that white silence furthers injustice. Hence my desire to address these issues now.

First, it should be obvious to everyone that the federal government's response to the pandemic has been a total failure. The nature of this failure cannot be overstated. From a legal perspective, protecting the health of Americans is a role traditionally assumed by state governments, but in a country where there is a constitutional prohibition (generally) on barriers to interstate travel and commerce, the federal government must assume a coordinating role in any communicable disease outbreak that is (or threatens to become) interstate in nature. The modern federal government has created a taxation structure that places the vast majority of resources for dealing with disasters at the federal level, reflecting this primary role in coordinating a response to problems that affect us nation-wide. Only the federal government is ultimately in position to prevent the spread of disease across this vast nation. The buck stops at the White House.

Billions and billions of our tax dollars have gone into funding vast governmental infrastructures for planning for and responding to an infectious disease outbreak. Tens of thousands of people are employed at all levels of government to deal with the current situation. So-called leaders are elected to mobilize our response and wisely deploy our vast resources. And we are the richest nation in the world. And yet the disease rages out of control, and there is no hope of any end in sight. How can this be happening?

Normally, this sort of thing would be a political issue, one I would not want to comment on because I find partisanship and the contemporary political discourse in the US dysfunctional and essentially meaningless in many respects. But this issue -- this fundamental failure of government -- has killed many of my fellow citizens, and will kill many more. It has and will continue to cause untold suffering, physically, emotionally, and economically. It must be commented-upon, and here is my comment:

The federal government has just shown you that it cannot do its job. The most basic function of a government is to keep its people safe, and they cannot do it. Federal leaders are telling you that they think their wealth is more important than your life, sometimes literally, but mostly with their criminal inaction on taking the steps necessary to protect your life. Yet they have their hands in your pockets and their knees on your neck. It's time for you to ask yourself, just as our national forefathers asked of their tyrant king, What am I getting out of this relationship?

Lastly, I want to address the apparently-widespread belief among Americans that restrictions on otherwise constitutionally-protected activities (such as assembly) imposed to stop the spread of coronavirus are unconstitutional. There is an old saying in conservative political circles: "The Constitution is not a suicide pact." That saying is used to justify the Executive's sweeping national security powers, which abrogate nearly every American's constitutional right to privacy in a daily basis.

That saying, behind conservatives' view of the constitution, reflects federal courts' jurisprudence on constitutional rights since the beginning of the Republic. Our rights, even those fundamental rights enumerated in the Bill of Rights, are not absolute. Courts examining constitutional rights issues always balance the rights of the individual with the need for the government to do its job. There are many laws that restrict the exercise of civil rights in "reasonable" ways under the US Constitution.

So let me explain it to you plainly: The government's job is to keep us safe, and sometime that means a temporary restriction of your rights to the extent necessary to deal with the threat.

An actual violation of your constitutionally-protected rights would be something like law enforcement officers firing teargas at you while you are peacefully protesting or reporting on a protest. Those are rights we have not given away to the government. Yet?

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