Aug. 24, 2021 Op-Ed By: Patrick O’Brien
I feel compelled to respond to the Op-Ed written by Marvin Jeffcoat on Aug. 18, titled “Why I Oppose Unconstitutional Mandates.”
I read it several times and concluded that it is not an Op-Ed piece at all but rather a thinly veiled advertisement in support of his quest to represent District 26 in the City Council.
As I read it, I was struck by the fear that he may have been overindulging in the toxic (and addictive for some) Kool-Aid that has been distributed by our former president, and virtually all current Republican elected officials in Washington, for far too long.
This was very disappointing as I know him to be a very good man. But, to me, his editorial does not appear to reflect any independent thinking, or any accurate, insightful knowledge of the U.S. Constitution. Rather it seems to parrot the inaccurate, uninformed, divisive, anarchistic, and decidedly un-American rhetoric and incitement that our former president conceived, cultivated, and seeks to perpetuate, and that virtually all elected Republicans in Washington and elsewhere lack the courage, decency, and common sense to condemn.
It is replete with tortured and insupportable constructions of our Constitution and our rights under it. Sadly, it seems more intended to appeal to a similarly misguided constituency, Republican or otherwise, than to the informed voting populace of District 26.
To suggest that individual rights should outweigh the need to take action against the serious and pervasive public health emergency that the Covid-19 pandemic presents smacks of the kind of political pandering that far too many seeking elected office stoop to these days. Marvin’s service in the military and to our veterans, and his service to our community in many ways, is admirable and worthy of praise. However, his interpretation of our Constitution could very well leave a blemish on that distinguished record that no political expediency can justify or remove.
The statement that “No emergency ever justifies a suspension of the US Constitution and our Rights!” lacks in accuracy what he intended it to provide in drama. This has been done many times in our history when dire circumstances require it. I think most rational people would consider this pandemic a dire circumstance (as did even our former President when he declared a national state of emergency last March). Examples of this include previous governmental responses to influenza, small pox, polio, mumps, and measles.
The authority for those responses, and any such current responses by the federal or state governments, is well grounded and long-established in constitutional, case, and statutory law. When it comes to public health and safety, both the Constitution and rulings of the U.S. Supreme Court going back almost 200 years give broad powers to both the federal and state governments to impose emergency measures to prevent the spread of dangerous diseases. This authority can be found in the 10th Amendment to our Constitution, which, among other things, grants the federal government broad authority to do so to prevent the spread of diseases from outside the U.S. and as a result of interstate travel. It also grants state governments similar authority to do so within their jurisdictions. In addition, there is statutory authority for the federal government to take such action by authorizing the Department of Health and Human Services to coordinate federal public emergency health and medical responses.
This authority has extended to such dramatic measures as shelter-in-place directives, isolation, quarantine, the seizure of private property, and even more stringent measures, that limit personal liberties in furtherance of a public effort to control emergency situations, such as the Covid-19 pandemic, and protect our health and welfare. Each has withstood constitutional and other legal challenges. Under the extant circumstances and the new dangers posed by the rapid spread of the Delta variant, I daresay that the imposition of masking and vaccination mandates is not only a constitutionally permissible exercise of governmental power but a commonsense measure that his arguments just do not stand up to.
In the desire to make his points, he seems to have equated his personal objections and that of others (to which each of them have an absolute right) with a violation of the Constitution and their rights under it. This is deeply flawed thinking, even if it was not motivated in whole or in part by political gain. He has confused those objections to putting these mandates in place with true transgressions against our Constitution. He has done so, in part, by posing a string of questions, most rhetorical, that he either answers incorrectly, without support, or not at all.
Moreover, while the foregoing is greatly problematic, the most difficult part of his editorial to understand or accept is the way it cloaks its assertions in constitutional terms seemingly as if as if the volume of such a rallying cry will drown out the voice of fact, law, reason, and a proper interpretation of our Constitution. However, I think equity and fairness would have required, at a minimum, he point out that, in addition to whatever personal opinions he has the right to express, both the federal and state governments have the authority to impose health measures to prevent the epidemic spread of deadly diseases such as Covid-19.
To be sure, many questions remain about this pandemic and how to defeat it. But, his editorial offers no constructive guidance or ideas as to how we can work, on either or both sides of the political aisle or otherwise, toward that end. Rather, to use his words, it raises “more questions than answers”, not about the pandemic, but about his fitness to represent District 26 in the City Council.
PS – I am neither a registered Democrat nor a registered Republican, and have no skin the in the political game. I am only motivated in writing this by a desire to save my skin and that of everyone else who could be affected by this pandemic and should not have that risk increased because of the opinions of a misguided few.
Patrick O’Brien is a practicing attorney and a life-long resident of District 26. He is a former chair of Community Board 2.