Is Gov. Beshear violating the Constitution?

By Heather Walton

Sadly, though I’ve lived here for most of my life, I hadn’t read Kentucky’s Constitution until this week. I suspect I wasn’t alone when it comes to constitutional illiteracy, but I have begun to be enlightened. I would encourage everyone to become familiar with their state constitution, and with the U.S. Constitution, because these are the highest laws of our land, and when our governing officials break the laws that give them their authority, we should consider whether it’s wise to submit.

While I’m not a constitutional law expert, an ordinary citizen should be able to analyze officials’ actions in light of national and state foundational documents. Therefore, I’ve evaluated recent executive orders by Gov. Andy Beshear in light of the Constitution of the Commonwealth of Kentucky, as well as Kentucky Revised Statute 39A, which gives him the authority to declare a state of emergency and outlines his functions.

According to Ky. Rev. Stat. § 39A.090, “The Governor may make, amend, and rescind any executive orders as deemed necessary to carry out the provisions of KRS Chapters 39A to 39F.” I do not think this gives the state’s chief executive carte blanche. Ky. Rev. Stat. § 39A.100 states, “Except as prohibited by this section or other law, to perform and exercise other functions, powers, and duties deemed necessary to promote and secure the safety and protection of the civilian population.” Since the Constitution of the Commonwealth of Kentucky is the highest law of our Commonwealth, it serves as the highest law in our state, and is in keeping with and subordinate to the United States Constitution.

Section 1 of Kentucky’s Constitution guarantees rights of life, liberty, worship, pursuit of safety and happiness, free speech, acquiring and protecting property, peaceable assembly, redress of grievances, bearing arms. All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

First: The right of enjoying and defending their lives and liberties. The Governor’s edicts have kept and continue to keep many from being able to work, and thereby enjoying their lives and liberties. We do not have the freedom to live our lives and to practice liberty of movement or fulfillment of our God-given calling to provide for our families, move about freely, attend church, sing and participate in sacraments, decide how many people to have in our homes, go places without a mask or temperature check, or keep our associations with others private. At first, these precautions seemed necessary, but they still would have violated the Constitution; now that the curve has been flattened, our rights certainly should be returned to us.

Second: The right of worshipping Almighty God according to the dictates of their consciences. We have not been able to worship according to the dictates of our consciences. While I’m glad we have been able to use online worship services, we have not been able to meet, and now that we are, we still are not able to do so according to our consciences. We are told not to get too close to one another, not to sing corporately, and not to participate in Sacraments. These things go against Scripture. If a person is sick, he should stay home from church, but that’s common sense and should be exercised at all times, but if he is well, there is not a substantial reason to comply. (He also should theoretically be able to be anointed and prayed over by the elders of the church.) If a person is at-risk, she also should consider staying home, but also should have the freedom to make that choice. For those who are healthy, there is no compelling reason to celebrate faith differently than at any other time.

Third: The right of seeking and pursuing their safety and happiness. This is an individual right of each Kentuckian to seek and pursue safety and happiness, not a mandate for the government to impose corporate safety on all citizenry. Our governor and other authorities have decided to potentially compromise financial, religious, and informational safety for supposed health safety. And many have been forced to trade happiness for a supposed safety.

Fourth: The right of freely communicating their thoughts and opinions. While I can’t specifically fault the government for this, I see the media inhibiting and overruling the right to free speech and communication.

Fifth: The right of acquiring and protecting property. How can people acquire and protect property when commerce is mostly shut down and nearly half of the state population is unemployed? Granted, many are receiving unemployment, but not all, and there will likely be a future price to pay for today’s temporary provision.

Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance. People have been allowed to protest; yet they have been demonized for doing so. Have their petitions been acknowledged or addressed? It doesn’t appear so.

So far, we have only looked at Section 1. In Section 2, absolute and arbitrary power is denied.

Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority. It seems to me that there has been much absolute and arbitrary power in the republic and in the commonwealth. Gov. Beshear made many executive orders which were presented as law and did so while the legislature was out of session. He was partially checked by the courts, but many of his edicts have been made without anyone being able to do anything about it. Not only has he exercised absolute power, but his decisions have appeared arbitrary. A large store could be open and lots of people could be inside, while a small business had to be closed. People couldn’t get cancer screenings and “elective” surgeries, but they could get an abortion. People could pack the hardware store or go to a liquor store, but could not go to church. Kids can now participate in contact sports, but nobody can go to a public pool.

Section 15 says that the General Assembly is the only one with the right to suspend laws, but it seems that the governor has done so time after time during this “crisis.”

Section 26 sums it all up well by stating, To guard against transgression of the high powers which we have delegated, We Declare that every thing in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void. I understand this to mean that several of Gov. Beshear’s executive orders are essentially void.

This brings me to my last point, in Section 4, which states that power is inherent in the people. Right to alter, reform, or abolish government. All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper.

We have a governor whom I believe to be well-intentioned, yet in many ways wrong. He may be a nice guy, but nice is not a leadership qualification. Gov. Beshear has, in the name of saving “the most vulnerable,” neglected many vulnerable taxpayers, small business owners, people with health conditions other than COVID-19, school children, unborn children, and newly born children. Our Constitution gives us the right to alter, reform, or abolish our government as we deem proper. Is it time to exercise this right? We have petitioned Gov. Beshear. He has refused to listen, and in many cases, even to acknowledge our grievances; perhaps it is time we consider requiring him to step down from leadership, and restructure the government to provide greater checks and balances, that we may not be subject to absolute and arbitrary leadership from any future governor.

Author’s Note: I am not condoning violence in any way. Those who have threatened the Governor do not represent the best interests of Kentuckians, and should be held accountable for their actions.

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