David Lias

“Individual behavior totally free of rational governmental regulation is best defined as anarchy.”

What do you think of when you read that statement? Is such a thought un-American? Or does it make perfect sense?

I’ll go with the latter, mainly because that sentence was part of recent testimony offered by Bob Burns of Brookings, a distinguished professor emeritus of political science at South Dakota State University.

Tuesday night, while listening to the Vermillion City Council on Zoom, I also was keeping track of the goings-on of the Brookings City Council as it tackled a controversial measure that city leaders hoped would slow the spread of COVID-19 in their community.

You likely heard about an earlier Brookings City Council meeting held last week. Hundreds of people who oppose the measure wore red shirts and filled the meeting chamber in Brookings City Hall. They expressed themselves loudly, raucously and sometimes rudely.

Despite that, regulations that would require masks at city-sanctioned events when a minimum of six feet in social distancing couldn’t occur, and in all indoor businesses and public spaces for that same reason survived last week’s meeting in Brookings and was on the agenda again Tuesday night for its second reading.

To avoid the circus-like atmosphere in that occurred a week earlier, and to allow those who actually believe in social distancing to be able to do just that, the Brookings City Council held its Tuesday meeting in the community’s Swiftel Center instead of city hall.

When the Vermillion City Council meeting was dealing with boring, routine business Tuesday night, I’d tune into the Brookings meeting on my other computer. Many of the same arguments that the Brookings City Council heard a week ago from concerned citizens were repeated when it came to mask wearing and many of them had this common theme of “freedom,” as in the “freedom to not wear a mask.” Even, it seems, if wearing a mask would help protect you and others from a virus that could make others very ill or perhaps kill them.

I had the privilege to be one of Burns’ students for four of his classes during my time at SDSU. He taught Constitutional Law and Civil Rights and Liberties at the university for 38 years before his retirement. I found the man to be fascinating. His lectures were stimulating and his tests were brutal.

Instinctively, when I heard his voice once again Tuesday night, I began taking notes.

“I’m here to comment on the legality or the Constitutionality of the proposed ordinance. One of the primary powers reserved to state governments under the United States Constitution is the police power, or the power to legislate directly for the health, safety, welfare and morals of its inhabitants,” he said. “States, in turn, may empower local governments to assert similar powers over local inhabitants. In addition, cities like Brookings with Home Rule Charter may exercise certain police powers over inhabitants unless otherwise prohibited by the state government or the U.S. Constitution."

He told the crowd at the Swiftel Center that “there are no state governmental prohibitions to the assertion of power proposed by our (Brookings) city council during this time of the COVID-19 pandemic and with evidence of a worrisome high rate of community spread.”

Burns noted that opponents to the new Brookings regulation that would require masks “have argued that individual freedoms secured by the United States Constitution prohibit the city council from ordering the wearing of face masks and social distancing. Obviously, there is no mention of the protection of the wearing of a face mask or practicing social distancing in the text of the U.S. Constitution.”

He also stated that the “the contested restriction on individual or business behavior” being considered by the Brookings City Council Tuesday might be found invalid by a court if those restrictions were not rationally related to a legitimate governmental end or purpose.

“We have already established that the protection of public health and safety is a legitimate end of state and local governments. In addition, ample evidence exists to demonstrate that mask wearing and social distancing are effective measures in reducing the community spread of the virus,” Burns said. “The proposed restrictions are like prohibitions on smoking in public places, wearing a helmet while operating a motorcycle or wearing a seat belt while driving or riding in a vehicle.”

Such regulations do restrict individual behavior, he said, but they are rationally related to a legitimate end of government.

“Individual behavior totally free of rational governmental regulation is best defined as anarchy,” Burns said. “An ordered scheme of liberty does require all of us to accept rational limitations on our behavior.”

I can’t help but wonder if much of Brookings’ troubles with this issue are related to statements Gov. Kristi Noem has repeatedly said as the pandemic reached South Dakota last spring. When the Smithfield Plant in Sioux Falls became a hot spot back then and COVID-19 numbers were soaring, she refused to really do much of anything at all government-wise.

She followed up on that inaction by going on Fox News and saying “I believe in our freedoms and liberties. What I’ve seen across the country is so many people give up their liberties for just a little bit of security and they don’t have to do that.”

For months now, we’ve watched the governor create a dichotomy as she convinces her followers that freedom and government are polar opposites. They’re not, of course. Society can’t function without government and we’re lucky enough to live in a country that has the best form of government in the world – one that guarantees and protects the freedoms we so cherish.

The inaction that Noem is so proud of is her passing the buck to the city councils of Brookings and Vermillion and other municipalities across the state to make the very difficult decisions that she won’t.

The painful decisions that the Vermillion City Council made last March to close down much of the community and its action a few weeks ago regarding signage in front of businesses are examples of those difficult tasks that our governor won’t take. The furor in Brookings during the last week or so can be traced directly to its source – the governor’s office in Pierre.

The tough decisions made by the Vermillion City Council and the action taken Tuesday night by the Brookings City Council are decisions that MUST be made. The reason such actions are necessary is this:

“Individual behavior totally free of rational governmental regulation is best defined as anarchy.”

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