Have you noticed all the new “constitutional scholars” protesting stay at home orders with signs demanding their rights? Many of them have carried signs in public streets while refusing to wear masks and disobeying social distancing directives. I can’t help but wonder how many of them will get sick, die and not be able to vote, not even by absentee ballot? Isn’t voting a right?
But the people in the streets are not the only ones promoting the view that stay at home orders illegally impinge on their “constitutional rights.” We are aware of business owners, city councilmen, state representatives, governors, congressional members, and talking heads on radio, television and blogs spewing anger, hubris and ignorance about the law. Americans believe them.
These “scholars” tend to prove Mark Twain’s statement that “It’s better to keep your mouth shut and appear stupid than open it and remove all doubt.”
Some of those protest signs include the following: “Give Me Liberty or Give Me COVID-19.” “Born Free, Die Free.” “Liberate Michigan.” “End Tyranny.” “Honk For Your Rights.” “Heil Witmer.” “My Body My Choice.” “Tyranny Becomes Rebellion Becomes Duty.” “God Protects Me.” “Don’t Cancel My Golf Season.”
I’ll get to the legal issues soon but I can’t resist commenting on the ludicrous ironies presented by the protesters. As you gaze at these people protesting “Tyranny,” you see Confederate flags. Alexander Stephens, the Vice-President of the Confederate States of America said in his infamous “Cornerstone Speech,” that the cornerstone of the rebel states was the idea that blacks were inferior to whites. Those states committed treason against the USA to promote their racist views and to preserve their slave supported economy.
Their present day believers now complain of tyranny against them because they are ordered to stay home and watch television.
We see signs promoting the Ku Klux Klan. A national museum in Montgomery, Alabama, memorializes the consequences of American racism, including the more than 4400 African American men, women and children who were “hanged, burned alive, shot, drowned and beaten to death by white mobs between 1877 and 1950.” Millions of other black Americans became southern refugees of white terrorism.
The KKK’s present day believers now complain of tyranny against them because they are ordered to stay home and be safe.
We see signs and symbols of the Nazi Party in the protests. The Nazis killed millions of Jews, people of color and disabled Europeans in order to create a “pure white race.”
Their present day believers now complain of tyranny against them because they are ordered to stay home and be healthy.
And, of course, proudly marching with these monsters of history are people wearing Trump MAGA hats, carrying Trump re-election signs, and repeating Trump tweets.
The law regarding constitutional rights and public health emergencies is easy to find. You have to spend at least two minutes to type a query such as “What are my constitutional rights in the face of a public health emergency”? into your computer browser. I did. It does take longer to read responses that pop up almost immediately. But you don’t have to be a constitutional scholar to understand what is written.
If you fancy yourself as conservative and want to read only one article, then I recommend ”A Constitutional Guide to Emergency Powers” on The Heritage Foundation website. The Heritage Foundation says its mission “is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values and a strong national defense.”
The Heritage Foundation describes the state stay at home orders and business closures as extraordinary restraints on American liberty related to the COVID-19 pandemic, the possible need for even more draconian measures that restrain our freedom and constitutional rights depending on the epidemic’s progress, and the ample constitutional and legal authority of the government to impose such emergency steps.
It lists what powers are possessed by the federal government in dealing with a national health emergency. Most of those powers are not being used by the Trump administration in my view. And they won’t be because Trump, after ignoring the pandemic for weeks, is now trying to sweep the virus under the rug in order to reopen the economy as he runs for re-election.
The conservative authors describe the powers of state governments in dealing with pandemics. Those states rights are supported by our history, our federal constitution and opinions written by the United States Supreme Court. The article emphasizes the crucial need for the federal government to provide leadership, data, guidelines, and resources in support of the state attempts to contain the virus. The authors tell us that it is important for the federal government to reassure the public that what the states are doing to fight the virus and protect our citizens is necessary to secure the health, safety and general welfare of Americans.
President Trump, Attorney General Barr and House Minority Leader McClintock apparently did not get the memo.
There is also a helpful legal article on the website of the National Constitution Center (NCC). The center was created by congressional legislation signed by President Reagan in order to disseminate information about our constitution on a nonpartisan basis so as to increase American awareness and understanding of our constitution. It’s in Philadelphia. Their COVID-19 and Constitutional law article traces the history of government responses from the early days of public control of yellow fever, typhoid, smallpox and cholera. Quarantines, draining swamps, closing ports, preventing people from crossing colonial borders, and isolation were the historical weapons of choice.
Local authorities in the American Colonies drained the swamps themselves because they couldn’t depend on King George to do it anymore than we can depend on King Donald. That hands-on, local American, can-do spirit became a consistent and reliable legal foundation in the new United States of America.
The NCC article presents the legal authority of the states in making and enforcing reasonable laws limiting free speech, the free exercise of religion, freedom of assembly, privacy, and property related issues. The NCBI, the US National Library of Medicines, National Institutes of Health also has a well written discussion of laws related to health emergencies.
Our history and our laws remind us that we as a people should and do care about each other. Successful individuals who pull themselves up by their bootstraps in pursuit of the American Dream are idolized. We also have empathy for those who suffer. America gives its citizens (and quite often non-citizens) individual rights in recognition that the actions of the ruling majority can be destructive of powerless minorities. But, and this is not only the law, it’s common sense, individuals do not get to ignore or challenge the law in a manner that quite likely will infect and kill others, including those who agree with them.
There were times when I served as a judge when people in court would tell me that “I have rights.” My typical response was “Yes, you do. And you also have obligations.”
Privately and publicly owned buildings were knocked down without court orders to impede the spread of gas explosion fires following the 1906 San Francisco earthquake. Americans who refused to wear publicly mandated masks during the 1918 Spanish flu were ridiculed as slackers, arrested, fined and jailed. Others were quarantined, especially children, to slow down the spread of polio in the 1940s and 1950s.
Our history demonstrates that a majority of us throughout the worst of times have understood that in order to get to the best of times that we have to do some things that we do not want to do. We have understood that “we are all in this together” is an expression of the common good.
The bottom line, interestingly enough, fits on a bumper sticker and/or a red baseball cap: PUBLIC HEALTH TRUMPS INDIVIDUAL RIGHTS.
— Charles A. Wieland,
retired Madera County Superior Court judge