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 right! If anyone wants to convince me otherwise they'll have to show the part of the Constitution that says other parts of the Constitution can be overridden by Comrade Mayors, Comrade Governors, or even the President.
That's not how the federal Constitution works; until the 14th Amendment the Constitution placed no restrictions on state governments (apart from the explicitly enumerated reserved federal powers, e.g., coining money).
“There is NOTHING in any constitution about shutting down the liberties and freedoms of the people.”
False. From the Illinois constitution:
SECTION 6. POWERS OF HOME RULE UNITS
(a) A County which has a chief executive officer elected
by the electors of the county and any municipality which has
a population of more than 25,000 are home rule units. Other
municipalities may elect by referendum to become home rule
units. Except as limited by this Section, a home rule unit
may exercise any power and perform any function pertaining to
its government and affairs including, but not limited to, the
power to regulate for the protection of the public health,
safety, morals and welfare; to license; to tax; and to incur
debt.
IMO, this thread, especially the comments of you and Andy, should be read by every sheriff in the nation that publicly resists or refuses to enforce a governor's restraints. One clear likely alternative is chaos.
The "community" selected its governor and the working assumption is that the governor generally reflects the will and mindset of the community.
There is a legal remedy in the event of an overreach and the sheriff may have standing to bring an action in a court, but until the matter is resolved the sheriff has a sworn duty to enforce the law.
My point is that the Supreme Court undermines the plain meaning of the Constitution as often as it defends it. Supreme Courts have erred in the past and slavish devotion to courts as the ultimate arbiter of our rights is dangerous in a free republic. I do tend in the direction that court decisions that explicitly or implicitly asserts that the state owns individuals are repugnant to the spirit of the American founding. Such decisions support a concept that could be reasonably described as “contingent slavery’.
"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."
Fair point. But I think the folks marching around with "LIBERATE <state name>" signs are making a broader claim.
Are you defending the unprecedented curtailment of constitutional liberties and the damage inflicted on the least privileged in the US as a legitimate exercise of state power? Based on what justification? A pandemic less severe than at least 5 since 1950 (with no stay at home orders or economic shutdowns). I categorically disagree with any court decision which attempts to justify “community” ownership of the lives of individuals.
OK then, lead me by the hand and explain why The Bill of Rights is not valid if a mayor or governor doesn’t want it to be.
Those who argue that there is nothing to mitigate against because this is nothing, and the my constitutional rights - you can't do anything. And as a subgroup of the first - the idiotic unfounded we already have herd immunity crowd
Want to argue that an idiotic set of measures is unreasonable? Go for it. I am all in and right behind you.
There is nothing in there about shutting down commerce or completely restricting the rights of the people. No dictator ship clause in there at all.
Are you defending the unprecedented curtailment of constitutional liberties and the damage inflicted on the least privileged in the US as a legitimate exercise of state power?
No. Are you propping up straw men to do battle with because you have nothing with which to rebut what I have said?
The Bill of Rights restricts the federal government, not the states - "Congress shall make no law" etc.
Never happened - I live in Illinois and engaged in commerce just this morning.
I think that your position does not need to be rebutted. You support Supreme Court decisions that assert that the “community” owns the lives of individuals. I do not support decisions of that sort, because the idea of communities owning individuals is incompatible with our founding values. I suspect that we have irreconcilable opinions which will not be swayed by argument. I have been quite clear in my position. You disagree. I accept that. I hope you are never placed in a situation where the “community” decides that it owns your life.
State Constitutions cannot veto the Bill of Rights.
What? I didn’t get the memo!
Oh barf.
This panic over a virus has certainly allowed us to see individual elected politicians overstepping our constitutional bounds.
Example #1: I ORDER YOU NOT TO GO FISHING BECAUSE YOU MIGHT CATCH A VIRUS INSTEAD OF A FISH!!!
Example #2: YOU CAN’T WORSHIP IN A CHURCH BECAUSE YOU SIT TOO CLOSE TOGETHER! HOWEVER, YOU CAN MINGLE ASSHOLE-TO-BELLY-BUTTON AT WALMART TO BUY A FISHING POLE!!!
This is a marvelous opportunity to rewrite emergency declarations on the state level so this crap never happens again. It will be up to patriots to get involved in local and state politics to rewrite the rules. Get to work.
In your opinion at what mortality rate and hospitalization rate should such measures as are currently implemented be used?
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