September 8, 2021
Headlines continue to swirl in Utah about how government should respond to the surge in COVID-19 cases and subsequent hospitalizations, including those of school-age children. What should state government do? Should local government act? Should the private sector take the lead on its own and deal with the subsequent criticism?
The debate has bogged down in power politics and ideological grassroots activism – which does not promise a resolution anytime soon. However, increased civics knowledge could be the basis for rising above politics and ideology to arrive at consensus and a genuine solution.
For instance, Article VI, Section 1, of the Utah Constitution vests legislative power in the Utah Legislature. This legislative power has been determined by the Utah Supreme Court to be a “plenary” power – meaning absolute or unqualified – except where it is specifically limited by the state or federal constitutions.
However, Article XI, Section 5, of the Utah Constitution also grants cities “the authority to exercise all powers relating to municipal affairs … and no enumeration of powers in this constitution or any law shall be deemed to limit or restrict the general grant of authority hereby conferred.” It also states that this constitutional grant of authority to cities shall not be “deemed to limit or restrict the power of the Legislature in matters relating to State affairs, to enact general laws applicable alike to all cities of the State.”
The Utah Legislature’s lawmaking power is absolute, even when it comes to laws governing local government entities. The Legislature clearly has authority to enact laws creating a specific process for things like local government mask mandates, which it did earlier this year. However, the principle articulated in the Utah Constitution is that cities should oversee all “municipal affairs.”
Additional considerations come from civic resources such as The Federalist Papers. In Federalist No. 10, James Madison illustrates the dangers of what he calls the “violence of faction”: “a number of citizens … who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community” (a fitting description of much of today’s party or partisan politics).
Madison highlights how the influence of factions tends to be greater at more local levels of government. This is due to the likelihood that the diversity of potential interests among the people (the main check on the power of a faction grounded in a particular interest) narrows and becomes less numerous the more local you go (i.e., the more local you go, the greater the similarities among the people, and the higher likelihood that a majority of people could be swayed by the influence of a faction against the interests of a minority, especially an unpopular minority).
Grounded in the civics understanding imparted by the Utah Constitution and Federalist No. 10, the debate on managing the current stage of the pandemic would likely look and feel different. It would rise above naked political questions such as: “Who in state or local government has sufficient power to get their way?” or “Is the threat of grassroots retribution in a primary strong enough to sway lawmakers’ votes?”
Instead, front and center would be questions of civic principle, reason and facts. Are policies like mask mandates a “municipal affair” in the lens of the Utah Constitution or are they a statewide concern? Is the influence of faction – as understood by Madison – strong enough at the state or local levels to merit a policy process to counter it for the protection of minority interests? Utah’s statewide mask mandate in 2020 generated opposition in favor of local control among people and groups – but these same people did not voice concern about a statewide law restricting ways to put local mask mandates in place. Is that a reasoned thinking grounded in the principles of the Utah Constitution and differences of fact in different scenarios, or an abuse of reason lacking factual justification for opposition to mask wearing or mask mandates of any kind?
Of course, the civics resources of the Utah Constitution and Federalist No. 10 do not offer definitive answers to these questions. The point is not to end debate, but rather to ground it in a shared civics knowledge and understanding that is accepted by the vast majority of political actors as a source of authority in the debate. This common starting point offers a foundation for building consensus around a genuine solution, rather than seeing which side can “get the win” by flexing political muscle.
The example of the debate around the response to the current stage of the COVID-19 pandemic clearly illustrates the need to restore the civic mission of public schools, as envisioned by both the framers of the U.S. Constitution as well as the founders of our system of free public schools. Increasing numbers of citizens and elected leaders have not received a rigorous, sequential education in American civics and history. With that reality as background, it should come as little surprise that our political and policymaking processes seem to have lost the ability to focus on much beyond questions of who has political power, how the current debate can change or maintain whoever has political power, and how the current debate will resonate with the grassroots voting base.
If we are to do better in the future and maintain the American experiment in self-governance, it will be at least partly due to improved civics education. So the next time you read a news story about the political controversy swirling around the surge in COVID cases, ask yourself: Are our elected leaders and political news media even asking the right questions? Are they looking to the right civics resources for answers? If enough of us do so, politicians will follow, and we may finally arrive at genuine solutions to the problems of pandemic response.
Even though the Supreme Court does not resolve a large proportion of the cases that are presented to it, the decisions it does issue reverberate to affect many other disputes through the principle of precedent. Its decisions on a handful of cases can, over time, expand and contract the rights of the entire nation.
For many voters, 2020 may have been their first experience with voting by mail. However, VBM in both the United States and Utah specifically is not new. In America, VBM has a history that spans centuries.
The judiciary branch is designed as a responsive, not proactive, branch of government. The court can’t tell Congress not to pass an unconstitutional law or tell the president not to issue a legally invalid order. It must wait until after those actions take effect and someone challenges them.