Exactly. The Oklahoma Constitution is ridiculously specific and broad. For example, the freedom of speech in Oklahoma is actually broader than the federal version. You can say whatever you want, but someone can sue you for defamation/ slander, too. I’ve had those cases.
During and after reconstruction, state legislatures started trying to regulate more industries and health. One issue was the 14th amendment, which discusses equal protection, due process, and privileges and immunities at the state level. The other amendments (well other than arguably 10) don’t really require anything of the states. The 14th amendment all of a sudden puts restrictions on them.
I have referenced Lochner a time or two recently, which is a case about NY implementing regulations on bakeries to promote health. It was ruled unconstitutional because it violated the “economic due process rights,” like the right to contract. So, for the next 40-50 years, the federal courts would strike down state legislation at such things promoting health.
Great Depression hits about the same time the federal government is expanding powers, like IRS and prohibition (which is a completely insane separate discussion for another day). FDR gets elected and starts trying to push through more and more regulation as part of New Deal. Supreme Court keeps striking it down. So he initiated the process to expand the number of justices on Supreme Court. All of a sudden they change course and start letting these things go forward, often under the rubric of “interstate commerce.” So FDR drops it. This is often referred to as the “switch in time that saved nine.”
The federal government then pushes through more and more legislation over the decades and has increasing involvement in people’s lives. During this post-war era, the modern concepts of “due process” and “equal protection” are developed and used for all sorts of civil rights issues, like school desegregation, reproductive rights (people always talk about Roe v. Wade, but it also included the right to use contraception which is mostly and rightfully taken for granted now), gender discrimination, and later, sexual orientation. (It was also cited by majority in Bush v. Gore, but that’s another story for yet another day).
William Rehnquist gets appointed in 1972 (he was one of two dissenters in Roe) and becomes Chief Justice in 1986. He eventually starts pushing this somewhat whacky federalism theory to challenge federal legislation in areas commonly reserved to states. One famous example is a case called Lopez, where the federal government tried to ban the possession of guns in school zones. Without getting into all the specifics, some of what they did was very appropriate and some of it was very inappropriate. By the end of his life, I would argue they were almost like the Lochner court, using this nutty doctrine to strike down legislation they just didn’t like politically. Whatever you feel about this politically, so much of the debate often revolves around the use of judicial review and there is no debate that the Rehnquist court used it way more than conservative commentators (who always whine about judicial review) care to admit.
I think what you are seeing right now is the intersection of decades of confused doctrines. Most people expect their government to intervene on this in multiple ways. But you have all these leaders who were raised on Reagan type doctrines about small government. Trump has broad powers to act here, but depending on the day, the federal government is the backup or not responsible or the greatest government ever.
At the state level, you have a bunch of people who didn’t go to law school and have very little practical government experience. Even Oklahoma has a century plus of complex laws and regulations. It takes a decade to even understand what you are looking at. (Look at the Corporation Commission sometime.). There isn’t a debate the government has a lot of authority to act here, but you have these “pro business” guys who don’t necessary get it or don’t care. Our Lt. Gov. (former National RNC hack) is promoting state tourism today on Twitter. It’s all quite strange if you understand what all these laws say and permit. You might die from Covid, but by gawd, the government saved your chance to eat sirloin at Outback (before they run out of meat).
Some would call this conservatism, but I generally think it mostly reflects ignorance, especially given Mr. Kouplen’s recent comments. And if you ask these guys about testing, they will say there is plenty. I’m not sure they understand the antibody tests or the apparent issues with it.
