How much longer will courageous courts keep our liberties safe?
"If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned." -- Justice George Sutherland (1862 to 1942)
Late last week, the Supreme Court of Michigan -- the state's highest and final court -- invalidated the pandemic executive orders of Gov. Gretchen Whitmer as well as the statute on which she based those orders. The opinion was a sweeping victory for personal liberty in a free society and was exceptionally gratifying for those of us who believe that the U.S. and state constitutions mean what they say.
Whitmer's orders were the most draconian in the union, and numerous efforts to dislodge them in state courts had failed until three primary care physicians sued the governor in a federal court in Michigan. The federal judge to whom the case was assigned certified questions of law to the Michigan Supreme Court. This is a rarely used procedure that federal judges employ when they need to know how a state court of last resort will rule on a question of state law.
Under our federal system, the state court of last resort -- not the U.S. Supreme Court -- has the final say on the meaning of the state's constitution and the laws written pursuant to it. The Michigan Supreme Court accepted the certification, meaning it agreed to inform the federal judge what the relevant clauses of the Michigan Constitution mean and whether the statute on which the governor relied is constitutional. In so doing, it ruled that the Michigan statute in question was unconstitutional and thus the governor's executive orders are void.
Here is the backstory.
Whitmer made herself a one-woman government when she purported both to write the laws during the early days of the pandemic and to enforce them. She did so in a staggering series of executive orders issued in April and May.
Among other orders, Whitmer required residents to stay home unless their travel was immediately necessary to preserve human life, to wear face masks in all indoor and outdoor public places and to stay six feet away from all other people outside the home.
She closed all restaurants, food courts, cafes, coffeehouses, bars, taverns, brewpubs, breweries, distilleries, wineries, tasting rooms, clubs, hookah bars, cigar bars, vaping lounges, barbershops, hair salons, nail salons, tanning salons, tattoo parlors, schools, churches, theaters, cinemas, libraries, museums, gymnasiums, fitness centers, public swimming pools, recreation centers, indoor sports facilities, indoor exercise facilities, spas, casinos and racetracks.
She also closed arcades, bingo halls, bowling alleys, indoor climbing facilities, skating rinks and trampoline parks. She closed all places of employment not immediately necessary to sustain human life. She banned advertisements for nonessential goods and services. She prohibited visitors at hospitals, nursing facilities and jails. She shut down all veterinary facilities.
In short, the governor of Michigan made up her own laws, reordered human life, displaced nearly all livelihoods and trampled civil liberties on a scale not seen in America since the Civil War; although the governor's orders in New Jersey are a close second.