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Opinion: Absent martial law, state must follow constitution in coronavirus response

Dennis Lennox

It is time for Michigan’s governor to declare martial law. 

After all, Gov. Gretchen Whitmer refused to rule out such a declaration during a recent radio interview.

Martial law would at least give some element of certainty to the wide-ranging actions taken by Whitmer in response to the pandemic caused by the novel coronavirus, also known as COVID-19.

Right now, many Michigan residents, including business owners targeted by restrictions or closures, are living or doing business in a de facto state of marital law. 

The only thing that is missing is the formal declaration itself. Without martial law, the Democratic governor’s actions have been seen by some as legally suspect at best and deeply unconstitutional at worst.

Gov. Gretchen Whitmer speaks at a press conference on Thursday, March 12, 2020, and announces the closure of schools in Michigan from March 16, 2020, through April 5, 2020.

As state Rep. Beau LaFave, an Upper Peninsula Republican, said: “I will always be the first person to agree with Gov. Whitmer that the state should take pro-active, sound measures to prevent the spread of any illness. In situations like this, everyone has the responsibility to wash their hands and avoid unnecessary close contact with others, but the government cannot violate the Constitution — even to a good end.”

Just look at the number of churches that canceled after state authorities made it a crime for 250 or more Michiganians to assemble together. Of course, the restriction was arbitrary. It was and is absurd to claim that 249 people are somehow safer than 251.

The fact that spiritual authorities closed churches out of deference to the orders of temporal authorities is also troubling, especially when you consider that houses of worship stayed open during the Black Death and countless other plagues, wars, conflicts, eras of tumult and times of pandemics. The fact that some bishops, priests, ministers, pastors and other clergymen of several denominations have been complicit is even more outrageous.

The last time I checked both the state and federal constitutions guaranteed the free exercise of religion. In fact, the bill of rights contained within the Michigan Constitution is in many respects superior to its federal counterpart.

Will Whitmer or Attorney General Dana Nessel, who herself has threatened criminal charges against those who defy the state’s orders, send the State Police to close the few churches that dare provide the means of grace to the faithful? Moreover, what steps have been taken to ensure that local authorities don’t overact and abuse their authority by reading the riot act? As of now, the state has refused to take this kind of draconian response off the table.

Where are the civil libertarians, particularly the American Civil Liberties Union? If there were ever a time to affirm the rights and liberties of Michigan residents, it's now. 

To be clear, everyone has a responsibility to take reasonable care and precautions to minimize the risk to themselves and others from COVID-19. Now isn’t the time to take reckless actions that endanger the public health and order. 

At the same time, state authorities must realize they are essentially pouring fuel on the fire as the kind of actions that Whitmer has taken only contribute to public hysteria. 

If the pandemic is as gravely serious as apolitical public health experts suggest, then a declaration of martial law may be in order. Otherwise, the exercise of the state’s wide-ranging authority — in legal parlance, its police powers — without such a declaration could result in a dangerous erosion of constitutional rights and liberties. 

Dennis Lennox is a political commentator and public affairs consultant.