Kelly Shackelford is the president, CEO, and chief counsel at First Liberty Institute. Shackelford is a constitutional scholar who has argued before the United States Supreme Court, testified before the U.S. House and Senate, and has won a number of landmark First Amendment and religious liberty cases. Follow him on Twitter at @_KShackelford.
Woke progressives have corrupted classical liberalism, the one-time bulwark of religious liberty and free speech. Were he alive today, the late Sen. Ted Kennedy, the liberal “Lion of the Senate” and chief advocate for the 1993 Religious Freedom Restoration Act, would likely be driven into exile by today’s woke mob for simply giving religious liberty a reasonable defense.
The conversion to woke progressivism as the dominant strain within political liberalism has been rapid, if subtle. Among other things, 2020 provided a useful political laboratory, laying bare the woke hijacking of classical liberalism and its resulting impact on religious freedom.
At best, governors, claiming emergency powers, gave guidance through statewide executive orders. More often, however, governors, mayors, or county government officials issued hastily drafted, unilateral edicts bearing the full force of law, yet without the collective judgment derived from deliberation and the dispersal of power among many rather than vesting authority in one. For example, the mayor of McKinney, Texas, put his city on indefinite lockdown in the early days of the pandemic. None but the most essential workers were permitted to leave their homes.
The mayor of Greenville, Mississippi, sent an entire shift of the city’s police force to King James Bible Baptist Church with a message to the pastor: “Your rights are suspended.” Suspended? Since when did government officials get to unilaterally suspend the civil rights of its citizenry?
In each of these cases, the First Amendment still applied. Both states had a Religious Freedom Restoration Act requiring government officials to assert a compelling justification and act in the least restrictive means possible. In neither case were city councilmen convened for their input; rather, the executive branch bypassed constitutional safeguards and measured legislative policy by taking unilateral action, causing great harm to religious liberty.
Not to be outdone, Gov. J.B. Pritzker tried to bully Illinois churches into submitting to his COVID-19 edicts. Only after members of the Illinois legislature attempted to call themselves into session to correct the governor’s overreach and local churches called the governor’s bluff by safely reopening following CDC guidance did Pritzker change his tune.
Treating an edict by a governor or an order drafted in the mayor’s basement as a legislative enactment is foolish. Neither receive the measured wisdom wrought by the democratic process. Yet woke liberals have too often happily deferred to such pronouncements — even if they openly trample on fundamental constitutional rights. The foolishness of handing government officials such unchecked power, sadly, may only be realized when government officials turn and use that same unchecked power on them.
For now, the wisdom found in the Constitution holds. As Justice Neil Gorsuch observed recently,
“It has never been enough for the State to insist on deference or demand that individual rights give way to collective interests . . . Even in times of crisis — perhaps especially in times of crisis — we have a duty to hold governments to the Constitution.”
In 2020, woke progressives often ignored the wisdom of classical liberalism as shown in our democratic republic’s dispersal of power among many by too often giving sanction to a committee of one government official. Now the woke threaten to pack the Supreme Court, ensuring their ability to trod upon constitutional freedoms like religious liberty unencumbered by legislative gridlock.
If mayors and governors, following the winds of woke liberalism, can push aside civil rights and ignore laws developed after reasoned, legislative debate in the name of public health, what will happen if woke progressives succeed in packing the Court with a bevy of liberal justices?
This article is part of the Standing for Freedom Center’s Spring journal, Equality: A Dream for Patriots, a Mask for Tyranny.