More and more legal experts are speaking out on the Constitutionality of quarantine efforts to keep the Wuhan Flu in check...
My research indicated as much; the Supreme Court decision in Jacobson v. Massachusetts (1905) pretty much laid it out.
But along comes the Pacific Legal Foundation, a conservative legal group that has repeatedly fought for and won on conservative rights issues.
Here's their take:
The question on many minds during our time of quarantine: How far can state government officials go in curtailing constitutional rights like the freedom of association, free exercise of religion, and right to travel among and between the states, in service to public safety by reducing the spread of the coronavirus?
The courts have been there, done that, and the answer is, “quite far.”
This is not the first time our country has faced a life-threatening epidemic. Our Founding Fathers saw mass death due to the mosquito-borne Yellow Fever on a nearly year-in, year-out basis in the 1790s and the decades that followed.
They did not know that the fever was mosquito-borne, and that their efforts to quarantine would not “flatten the curve.” They simply knew the fever took lives indiscriminately. And so they quarantined. In 1798 conditions became so bad that the governor of Pennsylvania banned travel between Philadelphia and New York.
The most significant early decision from the U.S. Supreme Court to mention the state power to quarantine occurs in an 1824 case known as Gibbons v. Ogden. Considered a landmark decision on the federal power to regulate commerce on the interstate waters, Chief Justice John Marshall — our greatest chief justice; the competition is only for second — explained that one of the powers the state possessed was the power to quarantine.
This was not controversial; as Marshall put it, the power to quarantine was seen as a power “flowing from the acknowledged power of a State to provide for the health of its citizens.”
The Supreme Court’s most direct comment on the power to quarantine arose in Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, a case from Louisiana, when the court considered a broad quarantine order, not unlike some of the quarantine orders our state leaders have considered over the last few weeks. Louisiana had faced outbreaks of Yellow Fever two out of every three summers throughout the 19th century, leading to a very aggressive state stance on the power to quarantine. The order the court considered read: “hereafter in the case of any town, city, or parish of Louisiana being declared in quarantine, no body or bodies of people, immigrants, soldiers, or others shall be allowed to enter said town, city, or parish so long as said quarantine shall exist.”
The Supreme Court, by a vote of 7-2, approved that order as constitutional when it was challenged by individuals who attempted to enter the state on a ship from Italy. Even though there was no evidence of symptoms of the fever or other disease on board, the court held that a state was justified to keep people out in order to protect the citizens of the state; that to do so did not violate the Constitution.
The broadest of the statewide shelter-in-place orders in California, New York or Pennsylvania go further than past precedent — controlling economic activity and populations over vastly more territory. But assuming courts are likely to approve today’s quarantine measures, what should we look for as Americans to make sure the government is not taking advantage of this otherwise unconstitutional power to restrict constitutional rights during this emergency?
First, these powers are by their nature temporary. They are justified by the extraordinary circumstance of a pandemic, in which a highly communicable and frequently lethal disease can be spread by infected people merely interacting with others. The government is acting legitimately if the purpose and scope of its actions is to prevent infected people from harming others. Do we know when the virus will subside? Of course not. But when the pandemic ends, the justification for the extraordinary assertion of government powers ends, too.
Often our government has used real emergencies — like the 9/11 terrorist attack — or manufactured emergencies — like the so-called drug war of the 1970s and ’80s — to take on additional powers and then refuse to relinquish those powers when the crisis subsides. Americans should watch their government officials carefully to make sure they do not exploit this emergency after it ends.
Vigilant Americans should also monitor the government to make sure it does not abuse the quarantine power during the pandemic. Is the government quarantining an individual as a pretext for some other improper reason to hold that individual? Officials who would exploit their powers in this manner must be dealt with severely, and there is precedent of courts ending quarantines when this power is abused.
Or are the officials privileging some politically favored activities and curtailing others under the guise of the pandemic? If we are in a quarantine, then the government should not play favorites. Protecting the public must be paramount; if the government appears to allow some violations of quarantine orders but arbitrarily prohibits others, the people will lose faith in their leaders and fail to heed otherwise justified quarantine orders. That will jeopardize lives and is an abuse of power.
One should not assume the governors and other officials who have issued these orders are seeking to violate the Constitution. But it’s up to us as Americans to not accept our government’s actions without question. The law provides broad authority to our elected officials to respond to an emergency, but when our leaders violate the limits of that power, Americans must call them on it.
This article was originally published by InsideSources.com.
_______________________________________________________
This is a summation that lays bare the incorrect idea that these efforts are unconstitutional.
I have stated more than once that the Constitution was never meant to be a death warrant.
Getting people who believe what they want to believe, not because it's true but because it fits their meme... to actually step back, take a deep breadth and dig deeper than their preconceived, but unsupported and factually incorrect notions has been as difficult as finding a hardcore leftist to vote for Donald Trump.
Those who oppose these efforts do so in large part because it hasn't impacted them.
I was struck by a man in Seattle a month or so back who, in a two week period, lost his mother and two sisters to this disease.
I have yet to read or hear of anyone who has lost a family member who opposes these steps.
He was no exception.
Bring these issues and the evidence of Constitutionality to the attention of a denier and they literally lose their collective minds.
One just tonight wrote, "I don't care if it is constitutional."
Seriously.
I do.
And just because you don't agree with a law, an ordinance, an executive order given under an emergency situation... that doesn't make it wrong, illegal OR unconstitutional.
I say this without any rancor. MY position is based on the singular question of constitutionality as our government and history defines the word.
This is completely separate from my "feelings" on the matter. I never supported gay marriage, for example, but the people of this state, given the opportunity, voted it in. And I DO support that.
I'm also intrigued by the obvious hypocrisy of the deniers, who demand that the will of the people as expressed last November in the issue I-976 ($30 car tabs) by the vote of the people of this state be implemented immediately instead of allowing the courts to tie it up... But when it comes to the matter of Senate Joint Resolution 8200, ALSO on last November's ballot, which gave the governor broad powers in the event of a declared emergency, THAT particular will of the people (That passed by a 2: 1 margin) should be ignored.
So, the determining factor for whether or not a law should be followed boils down to this:
If I don't LIKE the law.... we should ignore it. And anyone who disagrees with that should be publicly vilified in every imaginable way, under Rule 5 of Alinski's Rules for Radicals:
In many cases, they want what they want when they want it, Constitution be damned.
Imagine where we'd be as a society if a rule like that was actually in effect.
For me, it's simple: you don't like or agree with the law? Then change the Law.
You don't like or agree with Supreme Court decisions? Then get the Supreme Court to overturn themselves. It HAS happened.
Make it happen again.
You don't like the governor's executive orders? (and let's face it, some of them were stuPENDOUSLY moronic; private construction is bad, public construction is OK; no hunting or fishing, etc.) then get him to change them or get the Legislature to overturn them.
You don't like the articles or amendments to the Constitution that make all this possible?
Then change the Constitution. But you have zero credibility if you believe you can simply ignore the legal reality confronting us and just do whatever the hell you want, when you want, merely because YOU want to.
That's not how this works. That's not how any of this works.
But then, you knew that.... right?
My research indicated as much; the Supreme Court decision in Jacobson v. Massachusetts (1905) pretty much laid it out.
But along comes the Pacific Legal Foundation, a conservative legal group that has repeatedly fought for and won on conservative rights issues.
Here's their take:
Are quarantine orders constitutional?
The question on many minds during our time of quarantine: How far can state government officials go in curtailing constitutional rights like the freedom of association, free exercise of religion, and right to travel among and between the states, in service to public safety by reducing the spread of the coronavirus?
The courts have been there, done that, and the answer is, “quite far.”
This is not the first time our country has faced a life-threatening epidemic. Our Founding Fathers saw mass death due to the mosquito-borne Yellow Fever on a nearly year-in, year-out basis in the 1790s and the decades that followed.
They did not know that the fever was mosquito-borne, and that their efforts to quarantine would not “flatten the curve.” They simply knew the fever took lives indiscriminately. And so they quarantined. In 1798 conditions became so bad that the governor of Pennsylvania banned travel between Philadelphia and New York.
The most significant early decision from the U.S. Supreme Court to mention the state power to quarantine occurs in an 1824 case known as Gibbons v. Ogden. Considered a landmark decision on the federal power to regulate commerce on the interstate waters, Chief Justice John Marshall — our greatest chief justice; the competition is only for second — explained that one of the powers the state possessed was the power to quarantine.
This was not controversial; as Marshall put it, the power to quarantine was seen as a power “flowing from the acknowledged power of a State to provide for the health of its citizens.”
The Supreme Court’s most direct comment on the power to quarantine arose in Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, a case from Louisiana, when the court considered a broad quarantine order, not unlike some of the quarantine orders our state leaders have considered over the last few weeks. Louisiana had faced outbreaks of Yellow Fever two out of every three summers throughout the 19th century, leading to a very aggressive state stance on the power to quarantine. The order the court considered read: “hereafter in the case of any town, city, or parish of Louisiana being declared in quarantine, no body or bodies of people, immigrants, soldiers, or others shall be allowed to enter said town, city, or parish so long as said quarantine shall exist.”
The Supreme Court, by a vote of 7-2, approved that order as constitutional when it was challenged by individuals who attempted to enter the state on a ship from Italy. Even though there was no evidence of symptoms of the fever or other disease on board, the court held that a state was justified to keep people out in order to protect the citizens of the state; that to do so did not violate the Constitution.
The broadest of the statewide shelter-in-place orders in California, New York or Pennsylvania go further than past precedent — controlling economic activity and populations over vastly more territory. But assuming courts are likely to approve today’s quarantine measures, what should we look for as Americans to make sure the government is not taking advantage of this otherwise unconstitutional power to restrict constitutional rights during this emergency?
First, these powers are by their nature temporary. They are justified by the extraordinary circumstance of a pandemic, in which a highly communicable and frequently lethal disease can be spread by infected people merely interacting with others. The government is acting legitimately if the purpose and scope of its actions is to prevent infected people from harming others. Do we know when the virus will subside? Of course not. But when the pandemic ends, the justification for the extraordinary assertion of government powers ends, too.
Often our government has used real emergencies — like the 9/11 terrorist attack — or manufactured emergencies — like the so-called drug war of the 1970s and ’80s — to take on additional powers and then refuse to relinquish those powers when the crisis subsides. Americans should watch their government officials carefully to make sure they do not exploit this emergency after it ends.
Vigilant Americans should also monitor the government to make sure it does not abuse the quarantine power during the pandemic. Is the government quarantining an individual as a pretext for some other improper reason to hold that individual? Officials who would exploit their powers in this manner must be dealt with severely, and there is precedent of courts ending quarantines when this power is abused.
Or are the officials privileging some politically favored activities and curtailing others under the guise of the pandemic? If we are in a quarantine, then the government should not play favorites. Protecting the public must be paramount; if the government appears to allow some violations of quarantine orders but arbitrarily prohibits others, the people will lose faith in their leaders and fail to heed otherwise justified quarantine orders. That will jeopardize lives and is an abuse of power.
One should not assume the governors and other officials who have issued these orders are seeking to violate the Constitution. But it’s up to us as Americans to not accept our government’s actions without question. The law provides broad authority to our elected officials to respond to an emergency, but when our leaders violate the limits of that power, Americans must call them on it.
This article was originally published by InsideSources.com.
_______________________________________________________
This is a summation that lays bare the incorrect idea that these efforts are unconstitutional.
I have stated more than once that the Constitution was never meant to be a death warrant.
Getting people who believe what they want to believe, not because it's true but because it fits their meme... to actually step back, take a deep breadth and dig deeper than their preconceived, but unsupported and factually incorrect notions has been as difficult as finding a hardcore leftist to vote for Donald Trump.
Those who oppose these efforts do so in large part because it hasn't impacted them.
I was struck by a man in Seattle a month or so back who, in a two week period, lost his mother and two sisters to this disease.
I have yet to read or hear of anyone who has lost a family member who opposes these steps.
He was no exception.
Bring these issues and the evidence of Constitutionality to the attention of a denier and they literally lose their collective minds.
One just tonight wrote, "I don't care if it is constitutional."
Seriously.
I do.
And just because you don't agree with a law, an ordinance, an executive order given under an emergency situation... that doesn't make it wrong, illegal OR unconstitutional.
I say this without any rancor. MY position is based on the singular question of constitutionality as our government and history defines the word.
This is completely separate from my "feelings" on the matter. I never supported gay marriage, for example, but the people of this state, given the opportunity, voted it in. And I DO support that.
I'm also intrigued by the obvious hypocrisy of the deniers, who demand that the will of the people as expressed last November in the issue I-976 ($30 car tabs) by the vote of the people of this state be implemented immediately instead of allowing the courts to tie it up... But when it comes to the matter of Senate Joint Resolution 8200, ALSO on last November's ballot, which gave the governor broad powers in the event of a declared emergency, THAT particular will of the people (That passed by a 2: 1 margin) should be ignored.
So, the determining factor for whether or not a law should be followed boils down to this:
If I don't LIKE the law.... we should ignore it. And anyone who disagrees with that should be publicly vilified in every imaginable way, under Rule 5 of Alinski's Rules for Radicals:
Ridicule is man's most potent weapon. It's hard to counterattack ridicule, and it infuriates the opposition, which then reacts to your advantage.Those opposed to these measures simply don't care about the issue of Constitutionality.
In many cases, they want what they want when they want it, Constitution be damned.
Imagine where we'd be as a society if a rule like that was actually in effect.
For me, it's simple: you don't like or agree with the law? Then change the Law.
You don't like or agree with Supreme Court decisions? Then get the Supreme Court to overturn themselves. It HAS happened.
Make it happen again.
You don't like the governor's executive orders? (and let's face it, some of them were stuPENDOUSLY moronic; private construction is bad, public construction is OK; no hunting or fishing, etc.) then get him to change them or get the Legislature to overturn them.
You don't like the articles or amendments to the Constitution that make all this possible?
Then change the Constitution. But you have zero credibility if you believe you can simply ignore the legal reality confronting us and just do whatever the hell you want, when you want, merely because YOU want to.
That's not how this works. That's not how any of this works.
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