By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host
As cities, and some States, lockdown with “Shelter in Place” laws in order to, they hope, slow down the spread of COVID-19, the Chinese coronavirus that has the whole world in a panic, I have been asked by a number of folks about the constitutionality of these “martial law” style tactics. A short answer is not possible. Entire lessons regarding the U.S. Constitution would need to be taught, from the enumeration doctrine to State sovereignty. Constitutionally, what the States can do and what the federal government can do are often very different things. The concept of limited government, which restricts the central government from involving itself in issues that it has no enumerated authority regarding, goes hand in hand with localism, which gives more power to local government since it is closer to the people.
Judge Andrew Napolitano is arguing that the actions being taken regarding quarantines and “Shelter in Place” laws are all unconstitutional. “During the Civil War,” the judge explains, “when President Abraham Lincoln thought it expedient to silence those in the Northern states who challenged his wartime decisions by incarcerating them in military prisons in the name of public safety, he was rebuked by a unanimous Supreme Court.“
“The essence of the rebuke is that no matter the state of difficulties – whether war or pestilence – the Constitution protects our natural rights, and its provisions are to be upheld when they pinch as well as when they comfort.”
Technically, the Framers said the Constitution enumerates our natural rights, and government was established to “secure” our natural rights. The word protect is not the best word to use if the federal government is the greatest threat against our natural rights; that would mean they are there to protect us from them. Not a situation I would have much faith in.
“This basic principle of American law – our rights can only be interfered with by means of due process – is being put to a severe test today in most American states.”
Napolitano further explains, “We do not have a free market here in the health care delivery system; rather, we have thousands of pages of regulations and control at the federal, state and local levels. That control was revealed as manifestly deficient and ignorant when the virus struck.”
“The feds have been so protective of their control of health care – an area of governance that the Supreme Court has ruled is nowhere delegated to them in the Constitution, and but for their power to tax those who defy them, would be nonexistent – that they insisted that only the Centers for Disease Control and Prevention in Atlanta could be trusted to test for the virus.”
“It took weeks of begging by governors and mayors for the feds to relent. Of course, once they acknowledged that labs throughout the country are as competent as theirs to conduct the tests, they realized that their incompetence had deprived all physicians as well as most private sector and state government-owned labs of the test kits themselves.”
“We all know how central economic planning diminishes freedom and adds to the cost of products. Now we know that central micromanagement of health care can kill people.”
“But these mayors and governors were not to be outdone by the feds in their totalitarian impulses. Many of them, particularly in the Northeast and the West Coast, have issued decrees that are as profoundly unconstitutional as Lincoln’s efforts to silence dissent.”
Let me interrupt here. Napolitano is correct that there are no authorities granted to the federal government regarding health care. But, what about crisis? What about something that places the whole country in danger? Would not the power to protect the States from invasion and domestic violence in Article IV., Section 4 allow for some federal intervention? I suppose it would be a matter of interpretation (a word, by the way, I loathe), and from the point of view of the black letter of the law, I would have to say, “no, and yes.”
In Federalist 45, James Madison explains that the powers delegated by the Constitution to the federal government are “few and defined,” and that the authorities held by the States are “numerous and indefinite.” He also tells us in Federalist 45 that the powers held by the States “will extend to objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
Based on Madison’s written word, the federal government has no business being involved in the coronavirus scare, except maybe where it can be stopped by securing the border, enforcing strict maritime law disallowing the infected to reach shore, and by banning travel from other countries into the United States for the time being. But, once the virus hits our beaches, and begins to spread, it becomes more a State problem.
That said, in the spirit of which the Constitution was written regarding our Natural Rights and Liberty, that does not necessarily mean the State governments can go the opposite extreme and become tyrannical for lack of a check and balance from the federal government, or the people.
Napolitano wrote that, “The governors of New York, New Jersey, Pennsylvania and Connecticut have all issued decrees closing most retail establishments, particularly all restaurants, bars and theaters. The governor of New Jersey is threatening to ban all travel after dark. And the mayor of New York City is threatening to ban all travel all the time.”
“Now we know that central micromanagement of health care can kill people.”
“The fulfillment of these totalitarian impulses has put more than 1 million folks out of work, closed thousands of businesses and impaired the fundamental rights of tens of millions of persons – all in violation of numerous sections of the Constitution.”
“The Contracts Clause of the Constitution [which can be found in Article I, Section 10] prohibits the states from interfering with lawful contracts, such as leases and employment agreements.”
“And the Due Process Clause of the Fourteenth Amendment prohibits the states from interfering with life, liberty or property without a trial at which the state must prove fault.”
Again, an accurate point.
“The Takings Clause of the Fifth Amendment requires just compensation when the state meaningfully interferes with an owner’s chosen lawful use of his property.”
The Takings Clause applies to the federal government, not the States, but the State Constitutions have their own version of the Takings Clause that applies to the States, so while Napolitano is correct that for the most part the States may not interfere with an owner’s chosen lawful use of his property, the source of that prohibition may be found in the corresponding sections of the States’ constitution, not the U.S. Constitution.
“Taken together, these clauses reveal the significant protections of private property in the Constitution itself. Add to this the threat of punishment that has accompanied these decrees and the fact that they are executive decrees, not legislation, and one can see the paramount rejection of basic democratic and constitutional principles in the minds and words and deeds of those who have perpetrated them.”
The fuel behind that argument is the basic principle of a separation of power. At the beginning of each of the first three articles of the Constitution the principle is presented by each Article stating that only the legislative branch has legislative powers, only the executive branch was granted executive powers, and only the judicial branch was vested with judicial powers. For the executive to act legislatively or judicially at the federal level is unconstitutional. At the State level, it depends upon the language regarding the issue in that particular State’s constitution.
Napolitano adds, “Add to all this, the protection in the First Amendment of the right to associate and the judicially recognized right to travel – both of which are natural rights – and it is clear that these nanny state rules are unconstitutional, unlawful and unworthy of respect or compliance.”
Or, as we have heard often, those who sacrifice liberty for safety deserve neither.
“This happened here with the Alien and Sedition Acts in the 1790s when the Federalists feared a second revolution, during the Civil War when Lincoln feared dissent and Congress feared defeat, during World War I when President Woodrow Wilson suppressed the speech he hated and feared, and during the Great Depression when President Franklin Delano Roosevelt feared economic calamity and seized property without compensation.”
“And, after 9/11, fearing another attack, Congress secretly crafted the Patriot Act’s circumvention of the Fourth Amendment and creation of the total surveillance state.”
“This sordid history came about when the public was fearful of the unknown and trustful of the government’s bargain. But the safety offered for the liberty sacrificed never came to pass.”
Once again, we are reminded of Rahm Emanuel’s famous line, “Never let a crisis go to waste.”
We must ask ourselves when it comes to the handling of the coronavirus by government in general, “What kind of precedent is being established, here?”
And if we allow the local governments to act tyrannically, at what point will it bleed up into the federal system?
Napolitiano states that “liberty is natural and personal. You can sacrifice yours, but you cannot sacrifice mine. The natural nature of personal liberty – Thomas Jefferson’s Declaration of Independence calls our rights inalienable* and James Madison’s Ninth Amendment reflects their nature as limitless – insulates their existence and exercise in a free society from totalitarian and even majoritarian interference.”
*It’s is actually “unalienable.”
We must ask ourselves, also, with a leaning on my comment about precedent, “It was because of the coronavirus, this time, but what about in the future when a crisis is completely made up out of thin air, but we believe them, and we accept the tyranny in response to their promises to protect us from the big bad whatever it is?”
Napolitano wrote, “Today the fear of contagion gives government cover for its assaults on freedom and poses a question the government does not want to answer: If liberty can be taken away in times of crisis, then is it really liberty; or is it just a license, via a temporary government permission slip, subject to the whims of politicians in power?”
John G. Malcolm, writing for the Daily Signal (a Heritage Foundation website), disagrees with Judge Napolitano. He argues, “Although Napolitano is right to be concerned, President Donald Trump and other federal, state, and local officials appear to be acting within the bounds of the Constitution in responding to the severe threat posed by spread of the new coronavirus disease, which health officials call COVID-19. Napolitano is certainly correct that during stressful times, such as we are experiencing now, it is vitally important that we adhere to the “supreme law of the land”; namely, the Constitution. He is also correct that a few local officials may be infringing on our constitutional rights through some of the measures they have announced. But if that’s so, it’s only a small handful.”
Here I must differ with Malcolm. He acts as if small infringements, or infringements by only a few parts of government, is okay because, hey, “it’s only a small handful.”
All tyranny needs is a small platform to begin.
Malcolm then launches into judicial and Hamiltonian arguments (both of which I don’t find to be necessarily in perfect sync with the Constitution as it was written.
“In the Federalist Papers, Alexander Hamilton cited the need for an energetic executive who could act with “decision, activity, … and dispatch.” Those are the very qualities needed in a time of crisis, and the Constitution vests the president with many of the powers he needs to do just that.”
“The Constitution provides, among other things, that the president shall be the commander in chief of the military and of the National Guard, and has the duty to “take care that the laws be faithfully executed.””
Hamilton’s call for an energetic executive was not a call for a ruler, but a call for an executive that was much like Washington; decisive, respected, and willing to work well with all parts of government.
As for the part about being commander in chief and taking care that the laws of the United States are faithfully executed, that argument actually has nothing to do with the coronavirus. We are not being invaded by an army, we are being infected by a disease. That said, one could argue that the coronavirus is a weapon being used by an enemy (namely China), and if that is indeed the case, one may be able to make the commander in chief argument.
“Trump has invoked the Stafford Act, enabling him to tap into a $50 billion emergency fund for disaster relief. He has invoked the Public Health Service Act, enabling the government “to make and enforce such regulations as … are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the states or … from one state … into any other state.””
“The president also has invoked the Defense Production Act, which will enable the president to direct private industry to allocate raw materials and prioritize the production of medical supplies, such as protective gear, ventilators, and other much-needed equipment and to direct the military to tap into its strategic reserves to accomplish these goals.”
“These authorities have been used in other, less dire circumstances. For example, in 2000, President Bill Clinton invoked the Stafford Act to respond to an outbreak of the West Nile virus in New York and New Jersey, and in 2019, Trump invoked that act to respond to flooding in Nebraska and Iowa.”
Malcolm continues: “For decades, federal health inspectors have relied upon the Public Health Service Act to inspect people, animals, plants, goods, and cargo entering our country.”
“The 10th Amendment reserves to the states broad police power to regulate behavior and enforce order within their territory in order to protect the health, safety, and general welfare of their inhabitants.”
“Significantly, the Supreme Court has held that states can invoke such authority—within reason—to respond to a health crisis.”
In response to an outbreak of smallpox more than a century ago, the Massachusetts Legislature passed a mandatory vaccination law for adults, imposing hefty fines and potential imprisonment for those who refused.
Malcolm then discusses the Jacobson v. Massachusetts (1905) case where someone challenged Massachusetts’ authority to demand a mandatory vaccination, and Massachusetts won the case.
Again, while the courts (which are a part of the government) upheld the government’s allowance to dictate mandates upon the people, we must ask what does the Constitution actually say? Is conscription even discussed on any of its pages?