King Patrick the tyrannical

Governor Patrick issued an executive order on Friday that banned vehicular traffic in the state after 4:00 during a major snowstorm.  Cue the overreaction. 

In the Globe, Evan Kenney declared the Governor’s action “tyrannical.”

In a twitter exchange, Rob Eno, always on the lookout for evidence of a greater Nanny State, asked:

Also on twitter, GOP state rep Jim Lyons declared

The criticism continued today with an opinion piece in the Boston Business Journal by George Donnelly, who updated his piece by declaring “I had never before had my personal liberty as an adult stripped from me, and the feeling was very uncomfortable.”  Donnelly objected, in part, to the fines and threat of jail time for anyone violating the ban.

Of course, the repercussions of violating the ban are embedded in the legislation the Governor used as the basis of his Executive Order.  He did not impose them arbitrarily.  Nor did he send out orders to the State Police or local policy to rigidly enforce the ban.  And as far as I can tell, no one has gone to jail as a result.  King Patrick the tyrannical is off to a rather uninspiring start.

I’m actually a fan of those who cast a critical eye on the powers of Chief Executives, those officials who retain enormous power, because crises can bring about an abuse of that power which ought to very clearly be monitored and exposed.  But a travel ban during a storm that stranded hundreds on Long Island who did not get off the road is not tyranny.  It is hardly a violation of one’s rights.

The idea that people are always rational enough to understand how the risks they might take can result in significant costs to the rest of society is refuted not only by the actions of our friends in New York during the storm, but also by the theories that underlay the basis of our government.

In defending the complicated system of federalism and checks and balances, James Madison wrote in Federalist 51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Government is necessary because people are not always reasonable or rational.  The Governor’s Executive Order was a temporary restraint on our movement designed to ensure public safety during a storm that has left tens of thousands (including this author) without power three days later.  And it reflected the long understood reality that people do not always act in their own best interests or in the best interest of their community.

The legislature can change the law (an auxiliary precaution) if they find that the Governor acted arbitrarily and voters can ask any candidate for high office if they support Governor’s action and vote accordingly.

But the great swath of citizens fill find the Governor’s action to be the stuff of common sense, a limited ban designed to protect public safety during a dangerous storm.  Comparisons to tyranny and segregation as well as the over-hyped rhetoric that cast the Governor as a dictator who decides what’s best for his subjects are, to put it mildly, wrong and misleading.

And I imagine those who live under real tyranny or segregation might not well appreciate the comparison.

About Peter Ubertaccio

Peter Ubertaccio is the Director of Joseph Martin Institute for Law & Society at Stonehill College in Easton and Associate Professor and Chair of the Department of Political Science & International Studies. His work focuses on political parties, marketing and institutions. He received his Ph.D. in Politics from Brandeis University in Waltham, MA. Professor Ubertaccio and his family live on Cape Cod where he is on the Board of Directors of the OpenCape Corporation and the Sandwich Economic Initiative Corporation.
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9 Responses to King Patrick the tyrannical

  1. NoahC says:

    In my American Political History class, we recently read from the case Commonwealth v. Alger. This 1851 case involved the legislature limiting the length of wharfs in Boston Harbor. SJC Chief Justice Lemuel Shaw, one of the greatest legal minds of the era, wrote, “We think it is a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious… to the rights of the community.”

    Certainly, the right to limit road access durring a weather emergency passes the police power test.

  2. Andrea Lance says:

    Overreacting = criticism of the Governor’s Executive Order allowing warrantless seizure of vehicles and drivers without individualized suspicion, nor the safeguards required for constitutional reasonability in OUI roadblocks (ensuring selection of motor vehicles to be stopped is not arbitrary, safety is assured, and procedures are pursuant to a plan devised by law enforcement supervisory personnel), in violation of the 4th Amendment of the United States Constitution and Article 14 of the Massachusetts Constitution?

    Because SNOW and LONG ISLAND and LENGTH OF WHARFS (…huh?).

    Also implicated:
    1st Amendment – freedom of assembly
    5th Amendment – liberty of movement
    8th Amendment – cruel and unusual punishment
    14th Amendment – Equal Protections (arbitrary exemptions)
    14th Amendment – Due Process (unless everyone was served with notice to prove violation)

    No one has gone to jail as a result? Have you read all of the police reports from the weekend to see how many arrests for other crimes began as a seizure justified only by the Governor’s Executive Order?

    Pointing out that the restriction of the right to travel was the same means employed to enforce segregation is not the same as comparing the Governor’s executive order to segregation, it is emphasizing that such means can be used to extremely unjust ends.

    Some of us were just having a little fun tweeting pictures of “travel ban drones”, as there was a legitimate safety concern. But there are extremely valid reasons to object to the order and criticism serves to hold the government to constitutional standards. The ignorance expressed here as to the constitutional implications of the Governor’s executive order and mockery of those who point them out invites such orders without justification.

  3. Hi Noah–I agree. The Governor’s order was limited to the weather emergency at hand, was based firmly on a statute passed by the Legislature, and will pass any constitutional challenge to it. It was not the assault on all constitutional protections that others suggest.

    • Andrea Lance says:

      Evan – I am not that articulate, I was referencing Fourth Amendment case law. The professor speaks with a rare certainty that the Executive Order will pass *any* constitutional challenge regardless of the law enforcement actions claimed to be justified by the Order. I will have to look into citing the Federalist Papers in support of motions to suppress evidence or dismiss charges due to an unconstitutional stop. I’ve never seen it done before, but I’m sure they are very helpful in protecting against racial profiling, endruns around the warrant requirement, and ensuring the rights of all citizens. Usually case law addresses the possibility for abuse, which seems to be entirely unnecessary with the authority of the Federalist Papers and its argument that people are unreasonable, snow, and let’s not forget the case about the length of wharfs.

      Then again, he managed to write this entire post without mentioning the Fourth Amendment, which is obviously implicated, and failed to respond to Fourth Amendment concerns when raised.

      • Nancy Frank says:

        The emergency order the Governor signed was specific — it required people to refrain from driving vehicles on public ways until the order was rescinded.

        MA Gov Patrick, RI Gov Chafee and CT Gov Malloy all issued similar orders — refrain from driving on public ways for safety reasons (the safety of drivers and their passengers, the safety of DPW, and the safety of 1st responders ) during nemo, the frankenstorm thundersnow blizzard with hurricane force winds.

        Gov Malloy announced on Saturday that the biggest problem his state faced in the post-storm cleanup effort was stranded vehicles that had been abandoned during the storm, his driving ban order notwithstanding.

        The order Gov Patrick issued had no bearing on 4th amendment rights of search and seizure or any other right. If you violated his order by driving and you were stopped, your rights were the same as if you were stopped for running a stop sign.

        Moreover, at his press conference on Friday, a spokesman for the Gov announced that the Gov’s plan was not to dole out harsh consequences for violating the driving ban but to gain maximum compliance for public safety reasons.

        If you contend the order was an infringment on civil righs, please sight some examples of how the driving ban affected the civil rights of individuals who did not comply with it, and were stopped, and were treated differently from how they would have been treated at another time for a valid moving violation.

        Finally, as Mass. Republicans sound more and more like national Republicans over issues such as whether a valid and rare public safety order, which is authorized under the law, constitutes TYRANNY or civil rights violations, the less and less voters will think they’re fit to govern.

        • Andrea Lance says:

          To the contrary, I think this is an example of the political spectrum coming full circle and an example to show atypical Republican voters how Democrat policy is not always in their interests. A proposal for advance planning for procedures to be employed in future safety emergencies to ensure that the danger of undue law enforcement discretion is avoided, as in OUI roadblocks, would be likely to go over well in some neighborhoods that Republicans never capture.

          Example of infringement of civil rights: the person suspected of unrelated crime where the evidence is insufficient for a warrant, and due to the Order, law enforcement could sit on the target’s street and wait for him to get in his car – and *not* wait for him to commit a traffic infraction in order to conduct a pretextual stop, which is constitutionally permissible.

          Concluding that anyone driving was doing so due to intentional violation of the Order assumes they had notice of it, which depended largely on access to the internet or cable. This disproportionately impacts the poor. Considering there was a $500 fine and a year in jail threatened, this is another concern.

          Executive Orders allowing warrantless seizures of vehicles and drivers impact the Fourth Amendment (impact, not necessarily violate). In order not to violate, they should be supported by advance planning to safeguard against racial profiling and endruns around warrant requirements. There should be a law enforcement procedure guide similar to those required for constitutional reasonability of OUI roadblocks including data to support location of law enforcement, assurances of safety, minimally invasive non-threatening greeting, and confirmation that (this is particular to the Order) stops pursuant to the Order were not pretextually directed at those under law enforcement investigation for unrelated suspicion of criminal activity.

          Law enforcement officers had the authority to subject anyone in a car to an investigative stop merely because they were in a car. This is an example of “where you stand is based on where you sit” – it may not seem serious to those unconcerned with police interactions, but very serious to those who live in neighborhoods where police harassment is common and the Order effectively abrogated the Fourth Amendment entirely for the weekend.

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  5. William Binder says:

    “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

    Madison’s reference to “auxiliary precautions” is in reference to further limitations on government power, not on further limitations on the individual.

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