Never has such enormous power been exercised over so many by such small and mediocre men and women.
The Draconian "rules" recently imposed by the feckless Governor Northam of Virginia -- who only months ago narrowly escaped ignominious removal from office for posing in creepy black-face photos -- are typical of these pullulating coercive atrocities.
The edicts come under the obnoxious rubric of "stay-at-home" orders (hereafter "SAH's"). By mere executive fiat, Northam has decreed that Virginia citizens cannot leave their homes except to purchase food or supplies; go to those designated places of work that are still "allowed" to remain open; or to exercise in permitted areas (e.g., running or bike paths, but not, e.g., soccer fields or basketball courts). The callow mediocrities who pass as governors in most of our states have done essentially the same.
These SAH rules follow other decrees which, among other things, mandate "social distancing" and prohibit gatherings of more than ten (10) people. They at least "permit" families of more than ten to remain together, for now. Mormons must be uttering deep sighs of relief.
Is it necessary for SR to explain that these imperious COVID-based decrees violate precious constitutional rights that our Founding Fathers risked all to establish, and which generations of brave servicemen have risked their lives to preserve?
America's Lawyers: Silent as Lambs in the face of constitutional collapse
Most notably and clearly, the governors' orders violate the First Amendment guarantees of Free Exercise of Religion and Freedom of Peaceable Assembly; the Fifth and Fourteenth Amendment protections against the deprivation of liberty or property without due process of law; and the Fifth Amendment's prohibition against the taking of private property without just compensation.
These state and local edicts violate the Free Exercise Clause, for example, through their ban against gatherings of more than ten people, as well as by other provisions that effectively force churches to close. For example, a simple Catholic mass on Sunday, with one priest, two altar boys, a few attendant nuns, and a tiny congregation of, say, six parishioners would plainly violate the Virginia order and those of many other states, counties, and cities. These innocent religious congregants could be prosecuted and imprisoned for up to a year in prison, simply for attending a mass in compliance with Catholic doctrine and liturgy.
There is no doubt that this result violates the Free Exercise Clause on its face. The only question, discussed below, is whether the violation can be justified under the constitutional standards governing the fairly extensive (but not limitless) leeway given governments to take necessary measures to protect the public health.
(Parenthetically, the fact that many or most religious authorities have slavishly endorsed these government restrictions as fully justified tells us more about the weakness of their own religious convictions than it does about the validity of the restrictions. There was a time when religious ministers and adherents actually considered the observation of their religious tenets more important than merely minimizing the risk of catching a virus or flu. Not so now.)
There is also the prospect that these orders violate Due Process, as recently illustrated by a reported incident in Connecticut. Under various SAH orders, people cannot go out to visit others unless the visitees are family members. In the case of an elderly woman confined to her old age home, with no living relatives to visit her, this is the functional equivalent of state-imposed solitary confinement, without due process. When it was pointed out that the applicable SAH order would prevent the woman's only close friend from visiting her, the governor apparently relented in the face of the friend's argument that the lady's due process rights had been violated by what amounted to de facto solitary confinement.
The comprehensive closures of many thousands of businesses as "non-essential" also present serious due process and takings concerns. Countless companies have been designated for arbitrary closure without the slightest demonstration of the underlying rationale, let alone a due process hearing. Any third-rate official who happens to be a governor can now shut down your business by fiat, and deprive you of your living and the use of your property, without so much as a pretense of rational justification. If this does not raise a genuine constitutional claim, warranting at least a judicial or administrative hearing, we are all in serious trouble.
But Virginia's and other states' rules most explicitly and literally violate the First Amendment right of assembly, which forbids both the federal and state governments (the latter via the 14th Amendment's "incorporation" effect) from "abridging . . . the right of the people peaceably to assemble and to petition the Government for redress of grievances."
There is, again, no question that a government edict broadly forbidding assemblies of more than ten people on its face violates the Assembly Clause. As previously noted by SR, these edicts would have prohibited the gathering of the Founding Fathers in Philadelphia to declare independence. The only question is whether the judicial precedents upholding broad government authority to impose quarantines and similar restrictions to protect the public health are sufficient to sustain the Draconian SAH edicts imposed by governors on the basis of the COVID-19 crisis.
As with other First Amendment rights, restrictions on freedom of assembly can only be justified if they are "narrowly tailored" to further a "compelling government interest" (this principle is so well established by so many cases that citation is unnecessary).
SR will stipulate arguendo that the compelling interest standard is satisfied here, although automatically conceding this point could create dangerous precedent. While the need to combat the troubling expansion of COVID-19 cases and deaths seems obviously compelling -- at least in heavily infected states like New York, if not in low-impact states like Wyoming -- the same can be said with regard to the annual seasonal virus, such as the one that claimed about 61,000 lives in the 2017-18 season. In other words, the fact that there will always be a contagious and dangerous flu or virus for the government to contain means that the government will always be able to invoke a compelling government interest, without more.
But the really critical issue for the sweeping SAH edicts' constitutionality is whether they are narrowly tailored to further the object of containing and defeating the COVID contagion. This is a difficult issue on which reasonable medical, policy, and legal minds can differ.
To SR's thinking, a blanket ban on gatherings (indoors or outside) above ten people is overly broad; regardless, it hardly seems "narrowly tailored." For example, a gathering of 15 healthy high school youngsters to discuss and organize their concerns and opposition regarding the termination of their senior academic year and their last chance to participate in their chosen sports would be banned by the Virginia rules -- even if held in the open air, under social distancing guidelines. Any public health danger posed by such an assembly would be minimal at worse, yet it would constitute a core exercise of First Amendment rights.
Further, the constitutional vulnerability of the 10-person gathering limit and other oppressive SAH restrictions is even more evident in those states that have adopted them on the basis of the more severe problems in other states rather than their own experience. States like Hawaii (3 deaths), Montana (6 deaths), and Idaho (9) have imposed totalitarian SAH's and gathering limits that can only be based on the panic caused by higher death totals in states like New York (2,935) rather than on the magnitude of COVID's impact in their own states.
The death tolls in the named states and others are miniscule in comparison to the routine annual death tolls resulting from the seasonal flu, yet neither those states nor any others found the latter to be a compelling interest justifying Draconian public health restrictions on constitutional rights. The less the magnitude of the COVID-19 impact, the more narrowly the government restrictions should be tailored. The mindless governors' reflexive adoption of "one-size-fits-all" SAH edicts, regardless of extreme variations in the severity of the threat between states, seems patently incompatible with a contention that they are "narrowly tailored."
It cannot be stressed too forcibly: comparison of the virtually non-existent government response to the seasonal flu in, e.g., 2017-18 (61,00 deaths, averaging over 450/day) to the insanely excessive, economically suicidal over-reaction to COVID-19 (7,000 deaths so far, with Summer around the corner) strongly indicates that the state-ordered SAH's and other restrictions in response to COVID-19 are not narrowly tailored to respond to a public health threat that has not yet been shown to be decisively greater than seasonal flu.
Despite the obvious constitutional concerns posed by the Draconian SAH's and similar decrees, America's legal establishment and so-called civil liberties bar have been conspicuously silent in the face of this unprecedented assault on liberty. SR has diligently searched internet web sites for articles or reports reflecting the concerns and questions of the American Bar regarding the coercive COVID-19 regime, but has largely come up dry. Only a few libertarian gadflys, like FOX News legal commentator Andrew Napolitano, appear to raise the constitutional concerns outlined above.
The paucity of outrage or objection from the legal and civil liberties establishments tells us more about their utter hypocrisy and political corruption than it does about the constitutional concerns that are so obviously presented here.
America's lawyers have had little difficulty in finding or inventing novel or "creative" constitutional arguments to protect the interests of nefarious criminals and terrorists, even when those arguments have no foundation in the constitutional text and little support in judicial precedent. They fiercely defend the most malicious murders against the death penalty with "inventive" arguments that fly in the face of the Eighth Amendments' text and previously settled precedents. They have fashioned radical arguments that fly in the face of constitutional and military history to defend the murderous terrorists of the September 11 attacks, with the result that some of the worst of them, like Kalid Sheikh Mohammed, have yet to even face trial for their epochal crimes (KSM's trial is now set for Jan. 11, 2021 -- 20 years after his terrorist crimes).
Yet when it comes to the enforced confinement of at least two-thirds of America's population, without so much as predicate deliberations or findings, let alone a due process hearing, the American legal and civil rights establishments are nowhere to be found. Perhaps if the confined populations were more heavily populated with suspected murderers or terrorists the American bar would engage the case.
In the face of American history's most wide-ranging restriction of personal liberty by unfettered government fiat, the Silence of the Lawyers is deafening. Histories tyrants, from Caligula to Henry VIII to Stalin, would be proud of them.
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