Nine Maine businesses, including one in Franklin County, are asking a United States District Court to overturn Gov. Janet Mills executive orders restricting business activities and forbid her from issuing such orders in the future. Their argument is that the governor has no authority for her orders under the United States Constitution.

Attorney General Aaron Frey, representing the governor, has responded with a vow to “vigorously defend the constitutionality” of his client’s actions and authority. He asserts that the governor’s orders were carefully crafted in order to protect Mainers’ health in the face of the COVID-19 pandemic.

Mr. Frey did not tell us where he finds the constitutional power of the government to shut down thousands of enterprises and suspend or destroy tens of thousands of jobs. He did not, because he cannot. The arguments in support of this blizzard of edicts, rules, restrictions and requirement have been, and will be, almost entirely on grounds of necessity. The question of constitutional power has only come up because nine Maine businesses have brought it before the court.

I’ve been following the news pretty carefully and I have no recollection of a reference to the constitutional authority to effectively confiscate private property, destroy businesses, impede interstate trade, or forbid free movement across state borders. There are serious pragmatic arguments for the governmental intervention here and elsewhere. There are equally serious pragmatic arguments in opposition. These can be reviewed in other columns by other writers. The question in this column is why those enacting these sweeping measures have not bothered to explain their authority under the nation’s foundational law.

The powers granted to the national government by ratification are all found in Article I, Section 8 of the U.S. Constitution. It’s true that ingenious ‘progressive’ jurists have found numerous pretexts for expanding many of these powers by implication, but in Maine it has been left to nine small business owners to demand an explanation.

We must concede that the United States Constitution is not a operator’s manual. The needs and emergencies of a nation or state are too various and unpredictable to allow such a manual. Let’s concede that arguments can be made for broad and irregular expansions of government authority that will take place and have been recognized in the past.

One example is the British Parliament’s Riot Act of 1714 which empowered local authorities to declare any group of 12 or more people to be unlawfully assembled and to disperse or face punitive action. The British repealed it in 1967, but similar acts were passed in Australia, Canada and America. It’s easy to see how such a law might be stretched to control the lives of citizens not engaged in anything resembling a riot. I’m thinking here of the report of a woman so fat that an English sheriff read her the riot act and ordered her to disperse. I suspect this was a joke.

Martial law, recently spoken of with dread by left-lurchers whose nights are haunted by nightmares of a Trump dictatorship, is another power that all governments may exercise in place of constitutional authority. All governments which have armies have this power, even if not written down. It is invoked when public disorder has overwhelmed civil law.

The police are outnumbered and overwhelmed, the courts are suffocated by an unmanageable mass of business, the penal machinery has broken down. The army must step in to restore order. If the breakdown in civil authority is complete a mere infantry lieutenant may be called upon to exercise the authority of judge, jury and executioner on the spot. In these circumstances will be reckoned that nobody has any rights except the rioters with weapons. Order replaces justice as a government’s principle mission.

Even if we recognize that government always has the potential to break free of constitutional limitations under pressure of necessity, albeit temporarily (so it says, so we hope) we should get a little concerned when it doesn’t feel it needs to explain itself. The growing opposition in Maine and other states to these huge expansions in governmental powers might be a little less militant if the resisters and protesters knew where their governments acquired the sudden right to exercise seemingly unrestricted power over its citizens’ lives.

John Frary of Farmington, the GOP candidate for U.S. Congress in 2008, is a retired history professor, an emeritus Board Member of Maine Taxpayers United, a Maine Citizen’s Coalition Board member, and publisher of FraryHomeCompanion.com. He can be reached at [email protected]

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