Category Archives: Kentucky Constitution

Masquerade: Facing Constitutional Facts

By Heather Walton

I recently had the opportunity to testify during a public hearing regarding Kentucky’s mask mandate (902 KAR 2:210E). There were many amazing people on the zoom call, testifying about various reasons the mask mandate is unconstitutional and sharing compelling personal stories and scholarly research to support their positions. (This is not a statement that people shouldn’t wear masks, as that should be an individual choice, but rather that the government should not regulate this decision.) This is the first time I’ve attended such a hearing, and I found it to be a worthwhile way to participate in our democratic process. Here are my comments, taken from the transcript:

“Thank you so much for this opportunity to speak, and I just want to say I appreciate everyone’s comments. I’ve been very impressed with the depth of research and experiences that you all are willing to share.

So, I’m going to start off by saying when I was seventeen years old, I took an oath to uphold the Constitution against enemies foreign and domestic. I don’t feel released from that oath, and I think that our Constitution is being trampled in all sorts of ways today. While my allegiance was specific to the U.S. Constitution and I do believe that Constitution is being trampled, I am going to argue from the Kentucky Constitution, the Constitution of the Commonwealth of Kentucky, which is subordinate to our national Constitution. So, to clarify, the Constitution is the highest law of our Commonwealth and it gives all the branches of government, including the Executive Branch, its power.

And the Preamble of that Constitution says:

“We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution.”

Preamble to the constitution of the commonwealth of Kentucky

So, first, we are entitled to both political and religious liberty and our Constitution was founded on these liberties. The mask issue is highly political, and, for some, it may violate their religious liberty. When we’re looking at a document, an original source, we should define it in terms of the way that it would have been defined at that time. And, so, I want to go to a couple of Websters 1828 Dictionary definitions, the first one being the word political, and political means,

“pertaining to a nation or state, or to nations or states, as distinguished from civil or municipal; as in the phrase, political and civil rights, the former comprehending rights that belong to a nation, or perhaps to a citizen as an individual of a nation; and the latter comprehending the local rights of a corporation or any member of it.

Webster’s 1828 Dictionary

And the definition of liberty civil liberty is,

“the liberty of men in a state of society, or natural liberty so far only abridged and restrained, as is necessary and expedient for the safety and interest of the society, state or nation. A restraint of natural liberty not necessary or expedient for the public is tyranny or oppression. Civil liberty is an exemption from the arbitrary will of others, which exemption is secured by established laws, which restrain every man from injuring or controlling another.” Hence the restraints of law are essential to civil liberty.”

Webster’s 1828 Dictionary

So, moving on to Section 1 of the Bill of Rights of the Kentucky Constitution which addresses the “rights of life, liberty, worship, pursuit of safety and happiness, free speech and acquiring and protecting property, peaceful assembly, redress of grievances and bearing arms, all men are by nature free and equal and have certain inherent and inalienable rights, among which may be reckoned.

First: The right of enjoying and defending their lives and liberties. Second: The right of worshiping Almighty God according to the dictates of their consciences. Third: The right of seeking and pursuing their safety and happiness. And fourth: The right of freely communicating their thoughts and opinions.”

Constitution of the Commonwealth of Kentucky, Bill of Rights, Section 1

So, we should have the freedom to choose, and with no other infectious disease have we gone to these measures. Will we from this time forward have to mask? According to the World Economic Forum, we probably will. Infectious diseases are a part of life and people will die from them at times. The majority of those who have died, though, from Coronavirus-19 have outlived the average life expectancy and, thus, likely may have died of something else within a relatively close time line or effectively could have died of something else with COVID listed as the reason of death but it was merely a complication of the original illness. Now, I’m not minimizing the loss of anyone, but we would be presumptuous to think that we can live forever and that the measures we take will allow us to cheat the inevitable.

For many, we feel neither safe nor happy while wearing masks. Breathing our own carbon dioxide is unnatural and many people feel panicky when wearing them, and free speech is at stake because people are literally muzzled.

There are times when masks are a safety hazard and even discriminatory and I want to give you some examples of that. One example would be the hearing-impaired. So, you have an exemption if you are hearing-impaired, and I understand you have an exemption if you’re talking to someone who is hearing-impaired, but how many of us know who is hearing-impaired just by looking at them? We don’t necessarily know. And, so, that can cause a safety hazard for those who are.

What about people who have English as a second language? I have a coworker who meets that description, and it’s hard enough to understand each other without a mask on. So, if you’re in a position where there is something that really needs to be communicated thoroughly and quickly and you’ve got English-language learners, that could be a problem, a safety hazard but it’s also a social hazard for them.

And, then, children, I want to address children. I am a certified teacher in the State of Kentucky with certifications in elementary and special education. I do teach and I also currently am a daycare director which recently reopened. Now, I think this mandate is a threat to the safety, for the emotional and physical health of children, and it is creating a generation and a society of germaphobes and hypochondriacs. For example, and I am not someone who goes around wearing masks or talking much about the safety of it around my three-year old, but she recently caught a cold and she said to me, it was because she didn’t wear a mask that she has the coronavirus. Now, she does not have coronavirus. She did not have coronavirus but there is a brain-washing that’s permeating our society about this and creating just fear.

So, a year ago, we went about our business with mild symptoms if we had some place to go or something we needed to do, but now we have to over-analyze every symptom, and this is creating in some ways a lack of a work ethic, I think, because we have to forego our work or whatever if we have a sniffle.

But when it comes to religious freedom, it also can be a hindrance to worshiping God freely. And if this is simply an attempt to gain control over people, then, it is religious discrimination as well.

Section 2 of the Bill of Rights says that absolute and arbitrary power is denied. Absolute and arbitrary power over the lives, liberty and property of free men exists nowhere in a Republic and not even in the largest majority. This mandate is absolute and arbitrary because it is a unilateral dictate of the Governor and is not enforced over certain groups of people, namely protesters. The Governor himself was photographed with his mask down shaking both hands of an elderly lady at a rally.

Now, Section 5 goes on to the right of religious freedom and it talks about

“the civil rights and privileges or capacities, that no person shall be taken away, or in any wise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.”

Constitution of the Commonwealth of Kentucky, Bill of Rights, Section 5

So, if I’m told to mask during singing at church, to social distance during church, these things are contrary to biblical teaching. We are told to lay hands on the sick, to greet each other and touch each other with affection and to sing. And if it goes against my religious conscience and beliefs to wear a mask and I have to wear one to receive the goods and services, this is a violation of conscience and my religious freedoms.

Section 26 of the Bill of Rights says,

“the general powers are to subordinate to the Bill of Rights and the laws contrary thereto are void. So, to guard against the transgression of the high powers which we have delegated, we declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.”

Constitution of the Commonwealth of Kentucky, Bill of Rights, Section 2

So, if that is true, if all of the above is true and all of the things that we’ve said today, and I believe they are, these things can’t be changed according to our Bill of Rights and it is not to be altered without abolishing the government.

I would submit to you that the true pandemic we are facing is a pandemic of fear and control.

And while COVID-19 is causing sickness and even death, the death rate is low and the fear rate is astronomical. This is not about true health. It is about control, and we need not to submit to this and we need our Governor, our lawmakers and our Judges to adhere to the Constitution. Thank you. 

Is Gov. Beshear violating the Constitution?

By Heather Walton

Sadly, though I’ve lived here for most of my life, I hadn’t read Kentucky’s Constitution until this week. I suspect I wasn’t alone when it comes to constitutional illiteracy, but I have begun to be enlightened. I would encourage everyone to become familiar with their state constitution, and with the U.S. Constitution, because these are the highest laws of our land, and when our governing officials break the laws that give them their authority, we should consider whether it’s wise to submit.

While I’m not a constitutional law expert, an ordinary citizen should be able to analyze officials’ actions in light of national and state foundational documents. Therefore, I’ve evaluated recent executive orders by Gov. Andy Beshear in light of the Constitution of the Commonwealth of Kentucky, as well as Kentucky Revised Statute 39A, which gives him the authority to declare a state of emergency and outlines his functions.

According to Ky. Rev. Stat. § 39A.090, “The Governor may make, amend, and rescind any executive orders as deemed necessary to carry out the provisions of KRS Chapters 39A to 39F.” I do not think this gives the state’s chief executive carte blanche. Ky. Rev. Stat. § 39A.100 states, “Except as prohibited by this section or other law, to perform and exercise other functions, powers, and duties deemed necessary to promote and secure the safety and protection of the civilian population.” Since the Constitution of the Commonwealth of Kentucky is the highest law of our Commonwealth, it serves as the highest law in our state, and is in keeping with and subordinate to the United States Constitution.

Section 1 of Kentucky’s Constitution guarantees rights of life, liberty, worship, pursuit of safety and happiness, free speech, acquiring and protecting property, peaceable assembly, redress of grievances, bearing arms. All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

First: The right of enjoying and defending their lives and liberties. The Governor’s edicts have kept and continue to keep many from being able to work, and thereby enjoying their lives and liberties. We do not have the freedom to live our lives and to practice liberty of movement or fulfillment of our God-given calling to provide for our families, move about freely, attend church, sing and participate in sacraments, decide how many people to have in our homes, go places without a mask or temperature check, or keep our associations with others private. At first, these precautions seemed necessary, but they still would have violated the Constitution; now that the curve has been flattened, our rights certainly should be returned to us.

Second: The right of worshipping Almighty God according to the dictates of their consciences. We have not been able to worship according to the dictates of our consciences. While I’m glad we have been able to use online worship services, we have not been able to meet, and now that we are, we still are not able to do so according to our consciences. We are told not to get too close to one another, not to sing corporately, and not to participate in Sacraments. These things go against Scripture. If a person is sick, he should stay home from church, but that’s common sense and should be exercised at all times, but if he is well, there is not a substantial reason to comply. (He also should theoretically be able to be anointed and prayed over by the elders of the church.) If a person is at-risk, she also should consider staying home, but also should have the freedom to make that choice. For those who are healthy, there is no compelling reason to celebrate faith differently than at any other time.

Third: The right of seeking and pursuing their safety and happiness. This is an individual right of each Kentuckian to seek and pursue safety and happiness, not a mandate for the government to impose corporate safety on all citizenry. Our governor and other authorities have decided to potentially compromise financial, religious, and informational safety for supposed health safety. And many have been forced to trade happiness for a supposed safety.

Fourth: The right of freely communicating their thoughts and opinions. While I can’t specifically fault the government for this, I see the media inhibiting and overruling the right to free speech and communication.

Fifth: The right of acquiring and protecting property. How can people acquire and protect property when commerce is mostly shut down and nearly half of the state population is unemployed? Granted, many are receiving unemployment, but not all, and there will likely be a future price to pay for today’s temporary provision.

Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance. People have been allowed to protest; yet they have been demonized for doing so. Have their petitions been acknowledged or addressed? It doesn’t appear so.

So far, we have only looked at Section 1. In Section 2, absolute and arbitrary power is denied.

Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority. It seems to me that there has been much absolute and arbitrary power in the republic and in the commonwealth. Gov. Beshear made many executive orders which were presented as law and did so while the legislature was out of session. He was partially checked by the courts, but many of his edicts have been made without anyone being able to do anything about it. Not only has he exercised absolute power, but his decisions have appeared arbitrary. A large store could be open and lots of people could be inside, while a small business had to be closed. People couldn’t get cancer screenings and “elective” surgeries, but they could get an abortion. People could pack the hardware store or go to a liquor store, but could not go to church. Kids can now participate in contact sports, but nobody can go to a public pool.

Section 15 says that the General Assembly is the only one with the right to suspend laws, but it seems that the governor has done so time after time during this “crisis.”

Section 26 sums it all up well by stating, To guard against transgression of the high powers which we have delegated, We Declare that every thing in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void. I understand this to mean that several of Gov. Beshear’s executive orders are essentially void.

This brings me to my last point, in Section 4, which states that power is inherent in the people. Right to alter, reform, or abolish government. All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper.

We have a governor whom I believe to be well-intentioned, yet in many ways wrong. He may be a nice guy, but nice is not a leadership qualification. Gov. Beshear has, in the name of saving “the most vulnerable,” neglected many vulnerable taxpayers, small business owners, people with health conditions other than COVID-19, school children, unborn children, and newly born children. Our Constitution gives us the right to alter, reform, or abolish our government as we deem proper. Is it time to exercise this right? We have petitioned Gov. Beshear. He has refused to listen, and in many cases, even to acknowledge our grievances; perhaps it is time we consider requiring him to step down from leadership, and restructure the government to provide greater checks and balances, that we may not be subject to absolute and arbitrary leadership from any future governor.

Author’s Note: I am not condoning violence in any way. Those who have threatened the Governor do not represent the best interests of Kentuckians, and should be held accountable for their actions.