Constitutional Confusion Opens Door to Judicial Mischief

By: Mike Maharrey

There’s a fundamental misunderstanding of the constitutional structure that opens the door to all kinds of mischief. I’m talking about the misguided notion that the Constitution “gives us our rights” and empowers the government to “protect our rights.”

A federal judge’s opinion in a recent coronavirus lockdown case serves as a good example.

District Court Judge John Mendez recently held that California Gov. Gavin Newsom had the authority to ban church assemblies in the interest of public health.

Pastor Jonathan Duncan brought suit after police entered his church during a service and warned that the 30 or so worshipers were violating the governor’s order. According to the Los Angeles Times, “Police posted a notice on the building that its nonessential use created a public nuisance. San Joaquin County health officials then warned the church’s landlord, Bethel Open Bible Church, it could face a misdemeanor charge if it allowed assemblies to continue.”

In a cease and desist letter to the city, Duncan’s attorney wrote, “Constitutional rights cannot be suspended by a virus.”

Mendez begs to differ.

The judge held that stay-at-home orders are a valid exercise of emergency police powers and that such measures don’t violate constitutional rights.

“During public health crises, new considerations come to bear, and government officials must ask whether even fundamental rights must give way to a deeper need to control the spread of infectious disease and protect the lives of society’s most vulnerable.”

If we believe the Constitution gives us rights and protects those rights, they become subject to government interpretation. This is exactly the approach Mendez took. He argued that the protection of the right to free religious practice and assembly is negotiable. Another government responsibility – public safety – can trump the government’s role as protector of liberty.

A proper understanding of the constitutional structure eliminates this problem.

The fact is the Constitution and the Bill of Rights don’t give us rights. And they weren’t written so that the government could step in and protect our rights. The Constitution was written to limit federal power. And the Bill of Rights was added as “further declaratory and restrictive clauses” in order to “prevent misconstruction or abuse” of the general government’s powers.

The Constitution only delegated specific powers to the federal government. Search the document and you won’t find “emergency police powers” among them, nor any authority to shut down churches. As for the Bill of Rights, the First Amendment prohibits Congress from passing any law that would infringe on freedom of religion or the right of assembly. It doesn’t give you those rights. It doesn’t say the government must act in some way to protect those rights. It says the government must not act in a way that infringes on those rights even when exercising its constitutionally delegated powers.

Together, the structure of the Constitution and the inclusion of a Bill of Rights create an absolute prohibition on the exercise of government power. Within that framework, Mendez can’t rationalize some mystical authority for the government to shut down churches. The power simply doesn’t exist. There are no constitutionally delegated “police powers,” and even if there were, they couldn’t be used in a way that prohibits the free exercise of religion or the right of the people to peaceably assemble.


End of story.

By turning the Constitution into a mandate for the government to protect your rights, you have unwittingly given the same government that violates your rights to power to define the limits of your rights and to what extent it must go to protect them.

This has not worked out well.


For the sake of this argument, I ignore the fact that this should have never been a federal case to begin with. It should have been litigated under the California state constitution.