Beshear’s order on mass gatherings well-intentioned, but violates the U.S. Constitution

Justice Thurgood Marshall’s dissent in Skinner v Railway Labor Executive’s Association in 1989 should be an ominous warning to us in these uncertain times. In his dissenting opinion, he stated “History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”

Governor Beshear is clearly using urgency to undermine the US Constitution.

The supremacy clause in Article VI of the U.S. Constitution clearly states “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”

We cannot forget to mention section 2 of the Bill of Rights, Kentucky Constitution: Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority and Section 26: General powers subordinate to the Bill of Rights - laws contrary there to our belief. Banning of mass gatherings while keeping Walmart open appears to be arbitrary to say the least.

What this means is there is simply an order to which laws supersede each other. It is pretty simple, constitutional law trumps statutory law. The U.S. Constitution is the supreme law of the land and the Constitution of the Commonwealth and any law passed in the Commonwealth must be made pursuant to the US Constitution and federal law. This would also mean that any power delegated to the states through the 10th amendment must be subject to the U.S. Constitution and federal law.

The formal letter issued on March 19, 2020 by acting secretary of the Kentucky Cabinet for Health and Family Services Eric Friedlander and Stephen J. Stack, Commissioner of Public Health, banning mass gatherings is a clear violation of the First Amendment’s right to peaceable assembly. While restrictions can be made during a state of emergency as defined in KRS 39A.100 and KRS 214.020, suspension of the Constitution is not one of them, as that can only be done by Congress as defined in Article 1 Section 9 of the U.S. Constitution.

There will be many naysayers who disagree with this article. The disagreement is a familiar one between constitutional originalists and those who believe the Constitution to be a living document. As an originalist myself, the Constitution means exactly what it says and should be interpreted with the original meaning and intent of the framers who wrote it. No one writes a document and hopes it is interpreted differently in 200 years. Even liberal justice Elena Kagan stated during her confirmation hearings that “We are all originalist.”

Before anyone misunderstands me, I want to state that we are in a crisis with this pandemic. You should not go to any mass gathering and should be adhering to advice from the CDC and Gov. Beshear’s executive orders that do not violate the constitution. Keeping your distance, staying at home, and wearing a mask, are all good pieces of advice.

While I believe that the governor is well-intentioned, and has taken many good precautions through executive orders, a ban on mass gatherings of healthy people is an egregious violation of the Constitution. As the Nobel prize-winning economist Milton Friedman said “One of the great mistakes is to judge policies and programs by their intentions rather than their results.”

The result here is violation of the Constitution.

Calen Studler is a Certified Residential Appraiser who resides in Frankfort and a Republican Candidate for Kentucky State Senate District 7 for Franklin, Anderson, Owen, Woodford, and Gallatin Counties.