Americans’ constitutional rights are not luxuries to be thrown away in times of crisis. They are central to our economic and social system and key to our success. To discard them is to cut our own throats.
First, the good news: Our constitutional system is flexible enough to allow government to respond to pandemics and other emergencies. Each state enjoys a vast reservoir of authority the courts call the police power. (The word “police” does not refer to the cop on the beat; it is an older usage meaning “governance.”) In responding to a pandemic, states and their local governments may employ the police power to quarantine the sick, close places of assembly such as theaters and churches, provide emergency care, and require testing and vaccination. States may impose health restrictions on businesses that remain open, such as reducing business hours and requiring masks. They may restrict mass transit or take special steps to ensure vehicles are well ventilated and not too crowded. They may declare tax holidays and repeal regulations so as to reduce the burden of government.
The Spanish Flu pandemic of 1918-19 may have killed as many as 50 million people worldwide. It made COVID-19 look like a walk in the park. State and local government fought it with some of the tools I’ve just listed. All of those tools are perfectly constitutional. This flexibility in the face of emergency is why the late Justice Robert H. Jackson once said, “The Constitution is not a suicide pact.”
On the other hand, emergencies do not cause the Constitution to vanish. The Supreme Law is flexible, but it is not dissolvable. Today, though, some state and local governments are acting as if it doesn’t exist.
Although the state police power is extensive, it is still subject to the Constitution. Today, many state officials and bureaucrats are threatening constitutional rights as they never have before in time of peace. Most universally threatened is the right to travel.
The Constitution does not mention the right to travel explicitly. But the Supreme Court has found its components in the Privileges and Immunities Clause of Article IV and in the Equal Protection and Privileges or Immunities Clauses of the Fourteenth Amendment. The court ranks it as a “fundamental right”—in the same category as freedom of speech and religion.
In a series of cases the Supreme Court has protected the right to travel by striking down state laws that imposed only incidental burdens on interstate migration. I think it would act even more readily if faced with excessive direct bans on travel within state boundaries.
Over the years, the Supreme Court has developed a test for measures (laws, regulations, and orders) that restrict fundamental rights. It is a two-part test: (1) To be constitutional, the measure must further not merely an ordinary government purpose, but a compelling one, such as national defense. (2) The government’s measure must be “narrowly tailored”—i.e., targeted closely at the problem. It can’t be over-broad: You can’t use a shotgun to kill an ant.
Additionally, if the measure is filled with loop-holes, that’s a sign that it’s not “narrowly tailored.” A citizen suing to strike down the measure does not have to prove it is defective. The government must prove it is valid.
I think the courts would find that fighting the coronavirus is a “compelling government purpose.” But they likely would find also that the states’ methods for doing so are too scattershot to be constitutional.
One example is the statewide lock down order in Maryland. Because epidemics do not last forever, emergency orders should include a termination date. If the epidemic has not eased sufficiently by the termination date, the order can be extended. But Maryland’s state shutdown order has no termination date.
As President Trump has suggested, a stay-at-home order appropriate in New York City would be excessive for Wyoming. The same flexibility should be observed within individual states. The governor of Pennsylvania formerly understood this and limited his state’s order to urban counties. But he has since extended it to his entire state, even the most profoundly rural areas. A court could find this to be over-broad.
Colorado’s orders follow a template used in some other states. They are unconstitutional for several reasons:
* They extend to all parts of the state, even though conditions differ radically between metropolitan Denver and the state’s nearly empty eastern plains.
* The Colorado orders ban much automobile travel, although the virus is not communicated between cars.
* They close down most of the economy rather than taking a more targeted approach. For example, it may be sufficient to allow businesses to function if they follow emergency health procedures, such social distancing and offering curb-side service. Anyway, destroying the economy is a sure way to hike the death toll from suicide, malnutrition, and other products of poverty.
* The Colorado orders, like those of some other states, contain unexplained exemptions. For example, recreational marijuana stores may stay open, but tobacco shops must close. Clearly this is more about politics than health: In Colorado the marijuana lobby is stronger than the tobacco lobby.
Some states are violating other constitutional rights as well. One of Colorado’s orders seems to ban most interstate freight hauling, in violation of the Supreme Court’s Dormant Commerce Clause rules. And in Montana the governor has issued a directive that probably violates the Constitution’s Contracts Clause.
The Montana directive purports to stop evictions for non-payment of rent, block foreclosures for non-payment of mortgages, and prevent service cut-offs for non-payment of utilities. The directive does not distinguish between those who can pay and those who cannot. A prosperous supermarket may stop paying rent as readily as a shuttered business.
Finally: Appropriate government response to a pandemic would consist of a balance between (1) restrictions and spending and (2) tax and regulatory relief. Yet in almost all states, orders have been very long on measures that add to the burden of government and short on measures that reduce it. This, again, suggests that many state efforts to fight the cornavirus have been corrupted by politics.
Rob Natelson, a retired constitutional law professor and historian, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver. A version of this article first appeared in the Epoch Times.
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