Part I: Legalese
Ladies and gentlemen, we have been had.
Seventy (70) days ago, on March 10, 2020, Governor Charlie Baker of Massachusetts publicly declared that the Commonwealth was under a State of Emergency with regards to the novel coronavirus, SARS-CoV-2, more commonly referred to as COVID-19 or simply “coronavirus”. The following Sunday, March 15, the order was extended to prohibit gatherings of more than 25 persons, and forced the closure of all dine-in services at restaurants and bars, effective March 17. Fifty-eight (58) days ago, on March 23 and under the direction of the Massachusetts Department of Pubic Health, Gov. Baker issued a two-week “stay at home” order, closing all businesses not deemed “essential” and effectively halting all medical care unrelated to COVID-19 in anticipation of an onslaught of critically ill patients.
The onslaught never materialized. And today, on May 20, 2020, that “stay-at-home” order has been extended six weeks past its initial expiration date, and Massachusetts citizens are being fined for having the audacity to reopen their businesses in ways Not Approved by the governor.
Boston, we have a problem. Sam Adams, John Hancock, and Paul Revere are probably turning in their graves to see us lay down and accept this blatant violation of our God-given rights.
Before I even attempt to get into the problem of mandating closures and masks and plexiglass at registers, I need to point out something very, very important that I’m willing to stake my livelihood and good name that most citizens of the Commonwealth are unaware of:
Once a state of emergency is declared in Massachusetts, there is virtually no limit on the governor’s power, including his ability to “temporarily” suspend our Constitutional rights of assemblage and travel. I put “temporarily” in quotation because there is also no expiration date on a declared state of emergency in the Commonwealth of Massachusetts.
The powers of the governor during a state of emergency are enumerated in the “Civil Defense Act”, Acts of 1950, Chapter 639. This includes:
…for the protection of the public, take possession (1) of any land or building, machinery or equipment; (2) of any horses, vehicles, motor vehicles, aircraft, ships, boats or any other means of conveyance, rolling stock of steam, diesel, electric railroads or of street railways; (3) of any cattle, poultry and any provisions for man or beast, and any fuel, gasoline or other means of propulsion which may be necessary or convenient for the use of the military or naval forces of the commonwealth or of the United States, or for the better protection or welfare of the commonwealth or its inhabitants as intended under this act.
Translated into 2020 terms, the Commonwealth can seize both the means of productions and the goods and services produced, including things like UPS trucks and the contents of the local Wal-Mart. The provision does include “reasonable compensation” for said seizures, but we all know what you and I think is reasonable differs from what Beacon Hill considers reasonable.
Further:
Whoever violates any provision of any such executive order or general regualtion issued or promulgated by the governor, for the violation of which no other penalty is provided by law, shall be punished by imprisonment of not more than one year, or by a fine of not more than five hundred dollars, or both
The (only) good news in all this is that according to MGL Part I, Title II, Chapter 17, Section 2a, “Upon declaration by the governor that such emergency has terminated, all powers granted to and exercised by the commissioner under this section shall terminate.” Presumably this means that when the governor does get around to ending the State of Emergency, all orders issued during that time (such as mandatory masks and social distancing) are also null and void.*
Why do I take the time to spell all this out, when I usually limit myself to my open personal opinions, based on established fact? Because up until about three weeks ago, when I found a Facebook post by a local lawyer explaining some of what I have written above, I was woefully ignorant regarding the ways my own elected officials could control my life and liberty without my explicit consent, to the point of bypassing the negative-rights enshrined in the Constitution. Then-State Senator Barak Obama was correct when he explained in a 2001 interview that, “generally the Constitution is a charter of negative liberties – it says what the states can’t do to you. It says what the federal government can’t do to you. But it doesn’t say what the federal government. ..must do on your behalf. And that hasn’t shifted.”
I am not okay with the steps the state has taken to suppress our civil liberties in light of the threat of the Chinese coronavirus. I think in the coming weeks and months, We The People are going to need to stand up and loudly remind the likes of Baker, Brown, Whitmer, Cuomo, and Newsom that they are not without limits and that we citizens are not without recourse.
*I’m not a lawyer, nor have I verified this presumption with a lawyer. This is my understanding of the law as written.
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