What is the state’s duty — and ability — to protect its people?
Constitutional scholar Meg Mott, shown moderating the Putney Annual Town Meeting in 2016.

What is the state’s duty — and ability — to protect its people?

As the COVID-19 pandemic unfolds, can states’ efforts to respond, despite issues with federal policy, lead to improved public health? One local Constitutional scholar believes that states taking charge is, in itself, a healthy illustration that the U.S. is engineered to ‘never come up with a solution.’

BRATTLEBORO — Starting in March, Governor Phil Scott has held regular briefings on how Vermont's government is responding to the COVID-19 pandemic.

Scott isn't alone. Watching their governors step up to a podium to share information, enumerate action steps, and explain the latest emergency executive order has become a daily event for many Americans.

A debate has ensued about the role of the federal government in fighting the coronavirus, with President Donald Trump and his administration resolutely claiming that the states have the responsibility for their respective approaches to the global pandemic.

Meg Mott believes that embedded in this debate is an opportunity for states, as they scramble to address their own needs, to better protect people, their health, and their welfare.

A professor of politics emerita at Marlboro College, Mott serves as the town moderator for Putney. She also hosts discussions and workshops on civics and the U.S. Constitution.

“This is a time when people could demand from their states you need to fulfill your first obligation, which is to protect us,” she said.

In Mott's view, this opportunity to protect isn't new.

She said that early political philosophers such as John Locke (1632–1704) said that the first job of the states is to protect their people.

Today, most Americans think of the 14th Amendment's equal protection clause in conjunction with discrimination cases, she said.

After the Civil War, however, when the amendment was passed, Mott said, “The real emphasis was on protection - that the states needed to protect their people.”

“And somehow that obligation has fallen by the wayside,” she added.

Instead, Mott said, the idea of “protection” has been replaced by the notion that government exists not to protect people, their health, and their families, but to protect “property and the accumulation of wealth.”

According to Mott, traditionally in the United States, Americans tend to look to the president to “solve big problems” more than they look to state governors to do so.

She thinks this sentiment has evolved in response to the times. The Civil War left many at the time feeling suspicious about state governments, a feeling that was cemented during the New Deal era of the 1930s, when the federal government took over the response to the country's economic and environmental devastation during the Great Depression, Mott said.

Under COVID-19, however, some of this sentiment may be shifting, she said.

A matter of trust

According to a March poll by the Pew Research Center, in general people displayed more trust in the information coming from their state and local governments about COVID-19 than they did from President Donald Trump.

Usually when people talk about the Constitution, they classify its amendments into two groups: those ratified before the Civil War and the Reconstruction amendments, and those that became part of the document after that era, Mott said.

Mott pointed out the Congressional power of enforcement, which appears in many amendments in the form of a phrase like “Congress shall have the appropriate power to enforce this amendment.” Many who study the Constitution feel that those sentences mark the end of states' rights because the document explicitly affirms Congress's role in making laws to that end.

Right now, however, there is an absence of power in Washington, D.C., she said.

Mott also has noticed a number of governors - Vermont's Phil Scott, New York's Andrew Cuomo, and Washington State's Jay Inslee among them - stepping into the spotlight on behalf of their residents and addressing the pandemic with authority and strength.

As a result, people are turning to their state governments rather than to Congress for help during COVID-19, she said.

“When I first saw that happening, I thought, 'Great - the states are building up their power, then it's going to be more of a concurrent power,'” balanced between state and federal governments, she said.

“But as many of the governors have been saying, if every state is having to compete with one another for these limited resources, the personal protective equipment, then that's not working out well, either,” Mott added.

The federal government has forced states to fend for themselves in purchasing essential medical equipment to respond to the pandemic, which has created bidding wars among desperate states and federal government agencies in the private marketplace.

Ideally, Mott said, the Congress should be looking at how to produce and distribute resources equitably across all the states, while the states figure out the localized methods that protect public health.

She said that, traditionally, states have had responsibility for what are called the “police powers.”

According to Cornell Law School's Legal Information Institute, these state-level police powers come from the Constitution's 10th Amendment, which gives states the rights and powers “not delegated to the United States.”

“States are thus granted the power to establish and enforce laws protecting the welfare, safety, and health of the public,” the Cornell website notes.

Mott adds, “When those were identified, they were about quarantines, inspections.”

Mott explained that in the era when the Bill of Rights was written, representatives of states might have boarded a ship “and say, 'No, no, I think you've got a disease. You can't come into my city.'” Representatives of cities definitely did so, she said.

In Mott's opinion, the response to COVID-19 squarely falls under a state's power to respond to a public health crisis.

Local motion

Mott adds that in general, more change happens at the state level than at the federal level.

“The states can get very corrupt,” she added. “So I don't want to be naive. But even corrupt states - when the people start saying, 'This is not right' - get more done on the state level than on the federal level.”

Mott pointed to Louisiana as an example.

For several years, the state government has prioritized industry over people, she said, and noted that recently, residents have started to push back over issues such as water quality and public health.

“And if there's something that has concerned me about progressive politics in the United States in the last 40 years, it's that it has operated more on the national level and less on the state level,” she said.

In Mott's view, the progressive movement has sought to spur “massive change” at the federal level and then have that change imposed on the states.

“And I totally get why that pathway was chosen,” she said. “A lot of Civil Rights changes happened through Congress and then were imposed on the states.”

“But that's not the way we work best,” Mott continued. “I guess I believe still that human beings do better in smaller groups than enormous groups, and that you can get your state to respond to your needs better than you can the federal government.”

In Mott's opinion, the division of power between the federal government and state governments is one of the country's strengths, despite the rhetoric of political theorists since Aristotle who have said stable polity exists only when there is one “sovereign power,” she said.

“Somehow in the United States, we came up with one plus... well, right now it's 50,” she said. “So that's a recipe for disaster, according to any classic political theory.”

Mott is not sure if the division of power in this country came about by design or as a result of the architects of U.S. government doing the best with what they had, but she does think the power striation contains some “amazing wisdom.”

“By separating the powers into so many - like 50 states and one federal government - it means that there's going to be a lot of arguments all the time,” she said. “We never come up with a solution.”

Some might think so many seats of power is a horrible way to operate a country, she said. Mott sees it as a way of forcing the body politic to keep talking things through.

“Maybe I've drunk the Kool-Aid,” Mott continued. “But I actually think, given how, when human beings are the most assured that they're right, it seems we are at our most dangerous.”

In the case of COVID-19, states can learn from others' responses and create programs that meet their own population's needs.

As the COVID-19 pandemic unfolds, Mott hopes that what feels as a scary time now could result in the states developing a larger voice in the protection of their respective residents. After COVID-19, states might even pass stronger protections such as health care or paid family medical leave, she said.

These changes could, perhaps, filter up to the federal government, she said.

“I'm not a public health official,” she said. “But politically, that's not necessarily a bad thing for that kind of experimentation to take place.”

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