“You can’t handle the truth!”
With that exclamatory pronouncement, Jack Nicholson launched into the soliloquy which earned him an Academy Award nomination for Best Supporting Actor in the film "A Few Good Men."
As millions of Americans from California to New York and all points in between find their freedom to attend a worship service, sing praises to God, or go into a restaurant to eat after church on Sunday is contingent upon the whims of one man or woman in the governor’s mansion, many are demanding to know how so much power has been centralized in the executive. The real question is, can we handle the truth?
The petty tyrants we live under today are of our own making.
For decades, too many of the legislators we elected to state and federal office have abdicated their lawmaking responsibility and by action or inaction have acquiesced to the growth of the administrative state and government by executive order. The COVID-19 pandemic provided a perfect opportunity for these mini-tyrants to exert their power. Now, we’re paying the piper.
Like others, Gov. Gavin Newsom in California rules by fiat as the result of a poorly crafted emergency services law which enables him to essentially make law as he sees fit. The state legislature, dominated by his own party, has apparently prioritized partisan fealty above constitutional government and representative democracy.
Clearly, neither political party holds a monopoly on feckless politicians.
The Constitutionally apocryphal response to COVID-19 of Virginia Gov. Ralph Northam, a Democrat, has inflicted untold damage on churches and businesses. Yet again, the authority to do so stems from emergency powers granted the state executive at least in part by Republicans.
Of course, one need look no further than the abuse of executive power through executive orders unleashed from the Oval Office under presidents of both parties to see the example has often been set by the top.
Regardless of which party is in control, each time Congress or a state legislature outsources their work to executive branch regulatory agencies, the power of the unelected bureaucracy grows. But it’s not just the bureaucrats that have gratefully accepted the power abandoned by the legislative branch. Legislators we elected have also meekly assumed the role of bewildered bystanders while black-robed demi-gods make social policy from their lifetime perch upon unaccountable benches within the marble-columned pantheon of the judicial branch.
When the U.S. Supreme Court blatantly re-wrote Title VII of the Civil Rights Act to include sexual orientation and gender identity with its recent Bostock decision, leftists in the House and Senate cheered them on since the Court accomplished what they couldn’t through the proper legislative process.
Many conservatives said little to nothing; some decried the brazen violation of separation of powers but took no action.
To paraphrase Jack Nicholson’s character, because deep down in places they don’t talk about at parties, politicians want the Court to make controversial social policy; they need the Court making controversial social policy because they don’t have the courage to vote on controversial social policy.
There was a time when legislators of both parties set aside partisan politics to act against flawed decisions from the Supreme Court. In 1993, the very same year Nicholson earned his Oscar nomination for "A Few Good Men," then-Rep. Chuck Schumer of NY and Sen. Ted Kennedy of Massachusetts introduced the Religious Freedom Restoration Act. The law, which passed nearly unanimously and was signed by President Bill Clinton, was a direct rebuke of the Supreme Court’s ruling in Employment Division v. Smith. That decision lowered the bar of scrutiny toward government infringement upon religious liberty and Congress restored it.
Federalism divides powers of the federal government between three separate and co-equal branches with the assumption that each branch will zealously guard against overreach of either or both of the other two. Moreover, the federal government is limited to the enumerated powers in the Constitution with all others reserved for the individual states or the people via the Ninth and Tenth Amendments. But what happens when one branch willfully neglects its duty?
When politicians are content to permanently campaign and play "gotcha" games with soundbites instead of solutions, when being a legislator is more important than doing the work of a legislator, when those elected to represent us place a higher value on defending members of their party than defending their proper role in government, and when we the people don’t hold them accountable, the federalist bulwark against concentrated power and tyrannical rule by the few over the many collapses.
In "The Abolition of Man," C.S. Lewis wrote:
“…such is the tragi-comedy of our situation—we continue to clamour for those very qualities we are rendering impossible… In a sort of ghastly simplicity, we remove the organ and demand the function. We make men without chests and expect of them virtue and enterprise. We laugh at honour and are shocked to find traitors in our midst.”
Perhaps Aaron Sorkin, the writer of "A Few Good Men," was channeling C.S. Lewis with the lines “we use words like honor, code, loyalty…you use them as a punchline.” Perhaps not. No matter, the result is the same.
Executive overreach during the COVID-19 pandemic seems to be creating some new converts to federalism. Welcome. Federalism alone won’t save our republic; only “we the people” can do that by taking responsibility for placing the right kind of people in office. Men with chests. It’s a sacred duty and hard truth. Can we handle it?
Lathan Watts is Director of Public Affairs for First Liberty Institute, a non-profit law firm and think tank exclusively dedicated to defending religious liberty for all Americans.