My Open Letter to the Governor and General Assembly on COVID

Aug 20, 2021 by David Fowler

My Open Letter to the Governor and General Assembly on COVID
When in a state of crisis, one must be able to retreat to and reflect on fundamental principles to develop workable solutions. I believe Governor Lee’s Executive Order 83 and his more recent one about mask mandates in schools have given us an excellent opportunity to recall and apply our fundamental governing principles. People on every side know something is wrong, but without fundamental principles to guide us, anger and frustration, resulting in the disintegration of personal and familial relationships and civil social intercourse, are becoming the norm. Here is my open letter to and request of the Governor and General Assembly.

Dear Governor and Elected Representatives of the Citizens of Tennessee:

What follows is my request for action considering the ongoing issues surrounding the Coronavirus and its mutations. But to merit your consideration that request must be based on the fundamental principles upon which our state government rests. Upon the historical basis of those fundamental principles and the application made of them by our state Constitution, I make this request.

The Foundational Principles

If Tennessee is to have just laws, all citizen and elected officials must recognize that every person has a right from God, not from any judicial or legislative act of civil government, to be secure in their persons, which includes their life, limbs, and reputation; their property; and their liberty to move about.  
However, because we also live in community and society together, we must recognize that no person is an island unto himself or herself. 
Because these three fundamental rights come from God, each person has a duty to God to exercise those rights in love of God and, flowing from love of God, in love toward his or her neighbor according to the eternal principles of righteousness. Consequently, no person has a right to exercise his or her three absolute rights to deny or diminish those same rights belonging to other persons, and no governing civil authority can do so either.
Today, we are faced with nothing less than the question wrestled with by every society throughout history, the tension between unity and diversity. We are faced with the task of translating the application of the fundamental laws that precede human law to our current situation.

General Application of These Fundamental Principles

In recognition of these principles, we established a civil system of government that placed the law and policymaking powers in a representative body and divides those powers between a House and Senate with different representational boundaries, and in the Senate, further divided by staggered terms. The purpose was to diffuse power in light of our human tendency to self-interest, which leads to tyranny. But this also allowed a broad cross-section of persons to evaluate and adopt those laws and policies in a manner that would best balance unity and diversity—the individual and society—across a diverse geographical area.

Application of Fundamental Principles to Unforeseen Emergencies

However, our lawmakers recognized that there could be unanticipated circumstances of great consequences by which this machinery of representation and division of power, with its checks and balances, could not act swiftly enough to protect either individuals or society. And so, in those instances, lawmakers gave the executive branch, which never adjourns or recesses, the power to temporarily suspend the normal policy and law-making process for the sake of adopting those temporary measures thought necessary to protect life, liberty and property.
But the executive branch is designed in a manner and with such apparatus as is consistent with its limited constitutional duties, which is to execute and carry out law already made. It is not designed to evaluate and make policies that can, in the same way as a representative body, best balance unity and diversity based on all relevant data and interests. 
Moreover, we now seem to have arrived at a rather constant situation regarding the Coronavirus and its mutations, with no certain or fixed end in sight. 
Thus, while the possibility of contracting the virus and its variants remain, and its consequences dangerous among certain populations, the situation, in my view, is not an emergency in the sense intended by the law giving the governor law-making power by executive order.  
It is time for the authority given the governor to be given back to the fount from which it came so that the body tasked by our Constitution with making laws can carry out its duties and which, by design of representation, has to consider and respect the full range of unity and diversity within our state.

Request to the Governor

Governor, giving back the authority given for emergencies is not an abdication of your responsibilities, but a recognition of the limited nature of the responsibilities constitutionally given to the executive branch and an appropriate constitutional deference to that branch responsible for making law, leaving you to execute them.
To facilitate a smooth transition to regular constitutional order, I would urge you to notify the members of the legislative branch that you will resign the powers you have previously executed in 30 days (or such shorter period as makes for orderly transition), and thereafter await that branch’s instruction as to what laws they would have you execute.  
If the Legislature shows no inclination to act in the next few days, I would urge you to call for a special session, and I would urge citizens to look to their lawmakers for the laws that should govern our present, ongoing situation. 

Request to the General Assembly

Members of the General Assembly, if the governor does not act in a manner consistent with what I have suggested, I would urge you to call a special session and begin the process of governing again in accordance with your constitutional duties. Rightly seen, this does not cast reproach on the governor, but should be seen as the resumption of your constitutionally assigned responsibilities and recognition of and adherence to the division of powers made by our Constitution.
However, the issues before you are not limited to mask mandates in public schools but encompasses the whole operation of our government in consideration of on-going, prevailing conditions. Please do not constrict yourselves to the one issue of masks in public schools. The breadth of issues that deserve attention cannot easily and fully be considered during the hectic pace of a regular session involving a host of other issues.


Each of us, whether governor, legislator, or citizen must fulfill his or her own constitutional responsibilities under Tennessee’s form of common law government. 
Thank you for your consideration of my effort to fulfill my duty.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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