On April 9, the New Hampshire House voted to pass HB 440, also known as the Civil Liberties Defense Act or CLDA. This bill is a response to the fact that New Hampshire’s emergency powers laws have been interpreted by courts and state attorneys as allowing the governor to suspend constitutional rights during an emergency.
We’d like to thank Ian Huyett, for this Op-Ed. Cross-posted with permission from NH Journal.
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The CLDA would address this problem by clarifying that the legislature never intended these laws to authorize the suspension of constitutional rights.
Around the country, many courts have upheld COVID-19 orders by finding that they do not violate constitutional rights. But a suspension theory goes further. If rights can be suspended by the governor, then—when emergency orders are challenged—courts will not even apply constitutional rights in the first place.
If the CLDA does become law, it will not overturn Gov. Sununu’s current COVID-19 orders. Instead, the bill addresses the danger that a future governor could easily use emergency powers to set aside the enumerated rights of Granite Staters, including the First Amendment, the Second Amendment, and so on.
“We are all enjoying our fundamental rights, including free speech and trial by jury, at the mercy of the current governor,” said state Rep. Michael Sylvia during a floor debate on the CLDA. Sylvia correctly urged that even representatives who support Gov. Sununu’s orders should support the CLDA. Whether or not the governor’s orders are correct, he said, “has nothing to do with whether state law should give the governor absolute power.”
Although the CLDA passed the House with 192 votes last week, Democrats voted overwhelmingly against the bill. Five Democrats voted for the CLDA, including former House Speaker Steve Shurtleff, with 165 Democrats voting against it.
Democratic state Representative Rebecca McBeath gave remarks criticizing the bill, suggesting it elevated rights above responsibilities. “Democracy has some similarities with [the two sides of] a 45 vinyl record,” she argued. “Democracy’s two sides would be, one: individual freedom, and the other: responsibility to community and country.”
By itself, McBeath’s statement is correct: courts must strike a balance between rights and responsibilities. Yet, throughout U.S. legal history, courts have been able to strike this balance using traditional constitutional scrutiny. They do not need to suspend constitutional rights to do so.
It is true the legal system must sometimes allow rights to be outweighed. But it should never allow our rights to be temporarily canceled so that they become weightless air on the scales of justice.
What’s more, the importance of balancing responsibilities and rights is exactly why our Constitution enumerates specific rights. The Framers sought to ensure that these rights would not be obliterated by the kinds of “responsibilities” that too many majorities have imposed upon minorities throughout history.
Other Democrats have suggested the CLDA is overly broad. They emphasize the definition of “civil liberties” in the bill refers to “any guarantee against… an imposition, intrusion, fine, punishment, or penalty.” But this reading is incomplete. The rest of the definition makes clear that it only includes guarantees provided by “the New Hampshire bill of rights [or] the United States Constitution” under binding law.
If Democrats think protecting all civil liberties is excessively broad, they must believe there are certain rights that a governor must be able to suspend. But which rights are these?
Look over the Bill of Rights and decide for yourself: which rights are essential in times of emergency and which should we deem expendable? For example, should we protect freedom of speech, but allow future governors to suspend the right to “public trial, by an impartial jury?”
And don’t forget about the New Hampshire Constitution. Should we protect the Article 22 right to “Liberty of the press,” but let governors suspend the requirement that “All elections are to be free”? Critics of HB 440 have not told us which rights should be off-limits to suspension and which rights are optional.
Less than two decades ago, a large faction of Democrats stood with libertarians in defending civil liberties. Now that Democrats have an increasingly firm grip on the federal government, this faction has fallen conveniently silent. Last week’s vote is an important reminder that—even at the state level—many Democrats are rapidly becoming reflexive and brazen supporters of authoritarian power.
State Rep. Matthew Simon, who gave a floor speech in favor of the CLDA, called upon the House to think about the future. “We don’t know what the future holds, or what kind of person will wield emergency powers,” he said. “I ask that you shore up our constitutional defenses during a state of emergency so that the responsibility for any potential future abuses will not rest upon our shoulders.”
The CLDA is now before the New Hampshire Senate. Call your state Senator and ask him or her to support HB 440 as passed by the House.
Ian Huyett, Esq. is the General Counsel & Director of Policy for Cornerstone