The following story is true. The names have been changed to protect the innocent.
Jack and Jill are immigrants from different Asian countries. They are married to each other, and have three small children. They support their family by working 11 hours a day in their “ma and pa” business in metropolitan Denver.
But because of the state’s lockdown order, they can no longer support themselves. Their business will close this week. They hope closure is only temporary.
Their business poses no serious risk to the public health. It does not host crowds and serves only one or two people at a time. Moreover, the unclear wording of the state’s house arrest order arguably classifies it as “critical,” and therefore exempt from forced closure.
Nevertheless, the order, and the government and media tactics employed to enforce it, have reduced traffic to about four customers a day. Jack and Jill cannot meet the rent from payments by four customers a day.
A federal installation is located not far from Jack and Jill’s business. While their income dries up, the nearby salaried federal employees continue to draw full pay. This is true even if they are non-essential and even if the government has sent them home.
Besides the unfairness of this situation, it is ironic: Much of the money used to pay those government employees derives from the huge federal deficit. Much of that deficit is funded by borrowing from sources in mainland China.
That’s the same socialist China whose substandard health conditions fostered the coronavirus. It is the same country whose governing Communist Party covered up the disease until it had become a pandemic, and is still promoting disinformation to evade the blame.
Even an appropriately scaled-down government COVID-19 order probably would have impaired Jack and Jill’s ability to earn a living. But the state’s overreaching order has destroyed it. It has done so by violating a right directly protected by the Supreme Court’s constitutional jurisprudence: the right to travel.
The right to travel is not mentioned in the Constitution, as it was in Article IV of the predecessor Articles of Confederation. You can even make a case on originalist grounds, that the Constitution leaves its scope to congressional and state legislation. Still, the Supreme Court has recognized the right of travel as inherent in our federal system since at least 1849.
The Supreme Court re-affirmed the right in the 1960s, when the bench consisted of a majority with the same “progressive” views professed by most politicians now imposing state house arrest orders. For example, in the 1966 case of United States v. Guest, the court observed that “freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” In Shapiro v. Thompson (1969), the court made it clear that this “basic right” was entitled to the same level of protection the court grants other fundamental rights, such as freedom of speech: “Any classification which serves to penalize the exercise of that right, unless shown to be necessary [synonym: “narrowly tailored”] to promote a compelling governmental interest, is unconstitutional.” (Italics in original.)
In these and subsequent cases, the court has ruled that excessive federal infringements on the right to travel violate the Fifth Amendment Due Process Clause and that state infringements violate the 14th Amendment.
Because of the fundamental nature of the right to travel, the Supreme Court has struck down restrictions far milder than Colorado’s house arrest order. For example, the court has voided residency requirements for receiving state financial payments, although those requirements are merely incidental, rather than direct, infringements of the right. By contrast, state government is now guilty of massive direct violations—not because fighting the virus isn’t “compelling,” but because the state’s orders are way over-broad.
Unfortunately, some people (including some of those commenting on my two prior articles) seem to think that constitutional rights are luxuries, to be discarded in times of difficulty, or even when inconvenient.
But as Jack and Jill’s story illustrates, constitutional rights are not luxuries. They are key to the functioning of our society. They are part of the formula by which Americans enjoy the standard of living they (heretofore) have enjoyed. They are a reason people like Jack and Jill immigrate to our country.
For example, our much-reviled health care system has given us unparalleled advances in health and longevity. It even props up other countries’ feckless experiments in health care socialism. It does so by providing the innovations and accessibility that government-centered systems could never develop on their own.
Canada, for example, is able to maintain its single-payer system because Canadians know that when things really get tough and it takes months to see a specialist, you can cross the border into the United States and see one the next day.
The right to travel is crucial to holding together this enormous country. One reason the Constitution was adopted is that states were beginning to engage in trade disputes and other conflicts that threatened eventual civil war.
So it is not surprising that state house arrest orders are now re-creating the same sort of conflict, as Rhode Island state government hunts down New Yorkers, and Florida tracks down Louisianans.
Livelihoods destroyed. Poverty and dependence. States at each others’ throats. Is that the future we want?
Rob Natelson, a retired constitutional law professor and historian, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver. He operated his own businesses for a decade, and in 2000 ran second of five candidates in the open gubernatorial primary in Montana.
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