By Zach Alsobrook
Special to the Observer
“That was when they suspended the Constitution. They said it would be temporary. There wasn’t even any rioting in the streets. People stayed home at night, watching television, looking for some direction. There wasn’t even an enemy you could put your finger on.” – Margaret Atwood, The Handmaid’s Tale
Audemus jura nostra defendere. One would be hard pressed to walk amongst the many statues and memorials found in Montgomery, Alabama and not find those words carved in stone. Since our inception into statehood in 1819, audemus jura nostra defendere or “we dare defend our rights” has operated as our state motto. Defending our “rights” has been a calling for Alabamians throughout our 200 year history. We were at the center of history’s largest rebellion which was fought in the name of defending our rights. A century later, Alabama was again ground zero as black Alabamians took these words and made them applicable to all of us. Time and again, we have lived our motto. We have defended our rights, our liberties and our very freedom with a passionate belief that we, the free people of Alabama, determine our own course.
COVID-19 has changed everything.
On March 27, 2020, Gov. Kay Ivey, through the pen of Scott Harris, M.D. State Health Officer, issued a business closure order shutting down all “non-essential” private businesses. Without doubt, the majority of Alabamians applauded this move as necessary. After all, COVID-19 is spreading like wildfire according to all news reports and our medical system is stressed like never before. As of March 27, only four deaths and 627 positive tests for the virus were reported in Alabama, which has a population of 4.888 million.
Mainstream news coverage though has consistently reported the dire straits in New York and on the West Coast. It was clearly the imperative of Ivey to not let Alabama become the next New York. The obvious mission behind the order: to stop the spread of COVID-19 thus relieving pressure from our medical centers and saving lives.
Seldom will one find any governmental action not bearing a motive of good intentions. Whether you agree with the actions of Ivey or not, everyone certainly should agree on two points: she acted with good intentions; and her actions served as the greatest affront to individual liberty and freedom in our collective lifetime.
The Alabama Code section cited as “authorizing” Ivey’s draconian measures specifically grants the State Board of Health the authority “[t]o inspect [essentially all buildings] whenever insanitary conditions in any of these places…or conditions prejudicial to health, or likely to become so, are found, proper steps shall be taken by the proper authorities to have such conditions corrected.” The clear intent of this code section was to allow the State Board of Health the authority to enter specific establishments where conditions had become unsanitary and have those conditions corrected.
Did the Board of Health inspect any of the buildings that it arbitrarily closed the doors upon? The answer is, of course, no. As such, the Governor’s dictate cites no lawful basis in our Constitution or our Alabama Code authorizing such action.
It is nothing new for government to intervene and expand its power in times of crisis. Political historians often speak of “historical path-dependence” when addressing the rise of governmental scope. In essence, crises create larger government, which will thereafter permanently entrench itself. “A genuine ‘return to normalcy’ [is] unlikely after a crisis ha[s] provoked an expansion of the scope of governmental powers” writes historian Robert Higgs. “[T]he underlying behavioral structure [can] not revert to its prior condition because the events of the crisis create[s] new understandings of and new attitudes toward governmental action.”
In almost every such expansion, the executive/administrative growth is enabled by our representative legislators through an enabling statute. No reasonable interpretation of the aforesaid Code section can be that our State Legislature intended for our governor and State Board of Health to have the power to shut down all “non-essential” private business due to a novel virus.
The consequences of idly sitting by and even applauding Ivey’s dictate with no basis in law will be economic destruction for all of our communities. Families who rely upon their small businesses to feed their families and pay their bills will be forced upon governmental assistance just to survive. Bankruptcies will overwhelm the bankruptcy courts. Deaths will occur through suicide and sickness as it is the free economy that allows people to chase their American dream.
Sucharit Bhakdi, a specialist in microbiology and one of the most cited research scientists in German history said: “[Government’s anti-COVID19 measures have been] grotesque, absurd and very dangerous…The life expectancy of millions is being shortened. The horrifying impact on the world economy threatens the existence of countless people. The consequences on medical care are profound. Already services to patients in need are reduced, operations cancelled, practices emptying, hospital personnel dwindling. All this will permanently impact our whole society for decades.”
We all should follow the advice of doctors particularly during viral/flu season. We should all wash our hands and practice reasonable social distancing. But living in panic and seeking security through unlawful governmental expansion is not for the betterment of any of us no matter if there did exist some metric showing that shutting down private business actually would save lives.
Freedom entails risk. We experience risk every day with or without a foreign virus invading us. We lose 1,000 Alabamians to vehicle deaths every year. As of this writing, COVID-19 is responsible for fewer than 10 deaths statewide. This number will tragically rise before this is done. It changes not that government has no business or legal basis for shutting down private businesses without evidence of specific contamination.
Protecting and defending our rights has been the way of Alabama for 200 years. Our rights were trampled upon on March 27, 2020. We made no protest. We applauded in the name of greater security in a time of panic.
“Any society that willingly relinquishes its freedom and liberty for greater security deserves neither and will lose both.” – Benjamin Franklin