Nope. There is NOTHING in any constitution about shutting down the liberties and freedoms of the people.
Posted on 05/09/2020 6:08:21 AM PDT by NobleFree
Fox News contributor Andrew Napolitano, a former judge, recently penned an article with the provocative title “Coronavirus fear lets government assault our freedom in violation of Constitution.”
Although Napolitano is right to be concerned, President Donald Trump and other federal, state, and local officials appear to be acting within the bounds of the Constitution in responding to the severe threat posed by spread of the new coronavirus disease, which health officials call COVID-19.
Napolitano first quotes from the Supreme Court’s 1866 opinion in Ex parte Milligan (“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.”).
Then he accuses government officials—federal, state, and local—of “totalitarian impulses” and argues that “no matter the state of difficulties—whether war or pestilence—the Constitution protects our natural rights, and its provisions are to be upheld when they pinch, as well as when they comfort.”
Citing various constitutional provisions that protect individual liberty, Napolitano ends his article by asking: “If liberty can be taken away in times of crisis, then is it really liberty; or is it just a license, via a temporary government permission slip, subject to the whims of politicians in power?”
In that same vein, Benjamin Franklin once famously said, “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”
Although some have argued that Franklin was actually supporting the right of the government to act to protect the collective security of Americans, the quote clearly has a different connotation to modern ears.
Napolitano is certainly correct that during stressful times, such as we are experiencing now, it is vitally important that we adhere to the “supreme law of the land”; namely, the Constitution.
He is also correct that a few local officials may be infringing on our constitutional rights through some of the measures they have announced. But if that’s so, it’s only a small handful.
Let’s start with the basics.
As Supreme Court Justice Robert Jackson trenchantly noted in 1949 in his dissenting opinion in Terminiello v. Chicago, the Constitution is not a “suicide pact.”
In the Federalist Papers, Alexander Hamilton cited the need for an energetic executive who could act with “decision, activity, … and dispatch.” Those are the very qualities needed in a time of crisis, and the Constitution vests the president with many of the powers he needs to do just that.
The Constitution provides, among other things, that the president shall be the commander in chief of the military and of the National Guard, and has the duty to “take care that the laws be faithfully executed.”
The Constitution also vests Congress with the power to “regulate commerce with foreign nations, and among the several states.”
Pursuant to these authorities, Congress has passed several laws that Trump is using in a valiant effort to stop the spread of this disease.
Trump has invoked the Stafford Act, enabling him to tap into a $50 billion emergency fund for disaster relief. He has invoked the Public Health Service Act, enabling the government “to make and enforce such regulations as … are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the states or … from one state … into any other state.”
The president also has invoked the Defense Production Act, which will enable the president to direct private industry to allocate raw materials and prioritize the production of medical supplies, such as protective gear, ventilators, and other much-needed equipment and to direct the military to tap into its strategic reserves to accomplish these goals.
These authorities have been used in other, less dire circumstances. For example, in 2000, President Bill Clinton invoked the Stafford Act to respond to an outbreak of the West Nile virus in New York and New Jersey, and in 2019, Trump invoked that act to respond to flooding in Nebraska and Iowa.
For decades, federal health inspectors have relied upon the Public Health Service Act to inspect people, animals, plants, goods, and cargo entering our country.
The 10th Amendment reserves to the states broad police power to regulate behavior and enforce order within their territory in order to protect the health, safety, and general welfare of their inhabitants.
Significantly, the Supreme Court has held that states can invoke such authority—within reason—to respond to a health crisis.
In response to an outbreak of smallpox more than a century ago, the Massachusetts Legislature passed a mandatory vaccination law for adults, imposing hefty fines and potential imprisonment for those who refused.
Proclaiming the law to be an invasion of his liberty, Henning Jacobson, a pastor and community leader, refused to be vaccinated, was prosecuted and fined, and subsequently filed a lawsuit challenging the constitutionality of this edict.
Writing for the 7-2 majority in Jacobson v. Massachusetts (1905), Justice John Marshall Harlan rejected Jacobson’s argument, upholding the state’s right to vaccinate Jacobson against his will.
Citing precedent in which the court had upheld the authority of states “to enact quarantine laws and health laws of every description,” Harlan wrote that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”
He continued:
Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
Adding that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” the court held that in response to a potential epidemic of a life-threatening disease, a state can subject its inhabitants “to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
Just a few years later, in 1918, in Arver v. United States (better known as the Selective Draft Law Cases), Chief Justice Edward White, writing for a unanimous Supreme Court, upheld the constitutionality of the Selective Service Act, which imposed compulsory military service for adult males to address an “existing emergency”—the shortage of military personnel needed to fight the “war then and now flagrant.”
The court rejected the challenge to the law, even though conscription clearly had a dramatic effect on the liberty of those who were marched off to war against their will, many of whom ultimately died on the field of battle from wounds they suffered or from diseases to which they were subjected.
So, when governors, using the police power under their respective state constitutions, restrict large public gatherings, enact quarantines, and take other prophylactic measures to suppress the transmission of the virus, they are not, under the circumstances, acting to satisfy their “totalitarian impulses,” but rather to defeat a public health crisis that is, unfortunately, very real.
Napolitano is right to highlight the importance of adhering to the Constitution, which has often been sorely tested and sometimes dishonored during stressful periods throughout our nation’s history.
While we should be ever-vigilant to safeguard our liberties, Trump and the overwhelming majority of state and local officials have, thus far, not transgressed their constitutional authority.
Absolutely untrue, our constitutional rights have been trampled at every level.
For instance allowing socially distanced outdoor recreation, except for a certain set of arbitrarily chosen activities that offend the sensitivities of the Michigan governor or the global warming crowd are not resting a rational basis. Fishing in the middle of a lake is not more prone to spreading a virus than jogging in the park.
Then there is the issue of balancing public health against the right to contract out one's labor to earn a living to feed one's family. Clearly this isn't bubonic plague where we are all going to die.
WTF is the Heritage Foundation thinking. Defense of transparent tyranny is not fidelity to the Constitution. Citing Supreme Court decisions as the true meaning of the Constitution seems to neglect decisions like Dredd Scott, Roe v Wade, and Obergefell v Hodges which show that the Supreme Court often takes the side of tyrants and destroyers.
I’m glad that I had not mailed them my 2020 contribution yet.
Mostly untrue...there are no absolutes in life. Strike that. I guess if you live entirely off the grid, then there are absolutes.
The 10th Amendment needs to be updated for life in the 21st Century and beyond.
So explain how some businesses can open but others cannot.
Also explain that if the determining factor is a business ability to maintain 'Social Distancing' how are airlines allowed to fly?
This is one just example of States and local governments violating Constitution.
Don't forget the 1st Amendment and what States have done to Church Services!
Governor Inslee (WA) is using emergency powers to reward his political friends and punish his foes.
According to inside sources.
That’s what I like about Freepers. You made me look up Obergefell.
** Significantly, the Supreme Court has held that states can invoke such authority—within reason—to respond to a health crisis. **
“Within-reason”? I think we’ve gotten well passed that point when governors are shutting down gun & ammunition sales, emptying prisons, suspending arrests for certain crimes and arbitrarily declaring which business are and are not essential thus crashing the national economy.
The Pennsylvania legislature has repeatedly failed to override Gov. Wolf’s veto’s. To be fair he has moved to ease a few specific restrictions in order to maintain his vetos. But he still fits the textbook definition of a tyrant.
You are free to challenge those edicts by the MI governor at any time.
Once the courts reopen.
Which is, of course, the most basic issue. There is little, if any, judicial oversight and executives can do pretty much as they choose until they relinquish these powers or have them removed by the legislature.
It’s just they way it is.
I think that is what I just argued, that a lot of what we see is not standing on a rational basis.
I believe in suspending our Constitutional rights, one must consider the severity of the circumstances. In all prior instances, the country was at war or there was some localized natural disaster. In the case of war, the nation’s existence was at risk. In the case of natural disaster, the rules were for a very short period of time and only impacted the local area. The government’s current suspension of our rights is a total over reaction to this virus. It is estimated that 99.97 percent of people will NOT die from the virus, yet 100% will lose their rights, 20-30 percent will become unemployed, and our economy will be destroyed.
In addition, one must consider which rights have been impacted. In nearly all prior cases, the government ordered people to take action, such as change production. I am not aware of any action where our rights to assemble and exercise religion were suspended. Nor, am I aware where our right to equal protection was totally ignored. Lastly, as previously mentioned, the governors’ orders are arbitrary, which make them unconstitutional.
In the current situation the government’s actions to suspend our rights far exceed the virus’s risk to the nation. Their actions are unconstitutional.
No general, even during a war, ever had complete control over the lives of 40,000,000 people as Gavin (Pelosi) Newsom has in California.
No politician, even during a crisis, ever had complete control over the lives, families and businesses of 20,000,000 people as does Mario Cuomo in New York.
No Leftist, even during the recent upheaval to "fundamentally change the United States of America", ever had the power to suspend the rights protected by the Constitution of 10,000,000 people as does Gretchen Whitmer in Michigan.
These and other primarily Democrat/Leftist politicians (governors) have not only suspended the U.S. Constitution in their states, they have effectively cancelled the formerly "unalienable right" of Liberty, with no intention to restore that God-given right any time soon. And it is clear that this "unalienable right" wiil be restored only when the governor -- nothing more than an elected politician -- says it will be restored.
And all the while -- over the past six weeks when the forced isolation began -- federal officials including the justices on the U.S. Supreme Court and even the President of the United States, officials who have sworn their oath to "preserve, protect and defend the Constitution of the United States of America", have stood mute. These "defenders of the Constitution" (their primary duty above all else) have allowed these governors -- primarily the Democrat/Left governors -- to turn our Constitution into nothing more than a collection of high-sounding words on pieces of aging parchment.
After the disaster at Appomattox the tenth was effectively repealed.
Of course it’s Andrew Cuomo of New York, not Mario Cuomo. Please forgive my error.
Not as single link between these “Acts” and the constitution in the article.
Just a few years later, in 1918, in Arver v. United States (better known as the Selective Draft Law Cases), Chief Justice Edward White, writing for a unanimous Supreme Court, upheld the constitutionality of the Selective Service Act, which imposed compulsory military service for adult males to address an “existing emergency”—the shortage of military personnel needed to fight the “war then and now flagrant.”
The court rejected the challenge to the law, even though conscription clearly had a dramatic effect on the liberty of those who were marched off to war against their will, many of whom ultimately died on the field of battle from wounds they suffered or from diseases to which they were subjected.
Citing Supreme Court decisions as the true meaning of the Constitution seems to neglect [...] that the Supreme Court often takes the side of tyrants and destroyers.
So do you hold that government has no authority to enact restraint to protect against an epidemic of disease - nor to call a military draft? If that's not your point, what is?
I disagree:
'He is also correct that a few local officials may be infringing on our constitutional rights through some of the measures they have announced. [...] when governors, using the police power under their respective state constitutions, restrict large public gatherings, enact quarantines, and take other prophylactic measures to suppress the transmission of the virus, they are not, under the circumstances, acting to satisfy their “totalitarian impulses,” but rather to defeat a public health crisis that is, unfortunately, very real.'
Nope. There is NOTHING in any constitution about shutting down the liberties and freedoms of the people.
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