Tag: Civil rights and Covid

We continue with Judge Wilson’s (ret.) review of civil rights and the Covid crisis

INFRINGEMENT OF THE RIGHT TO TRAVEL

The right to travel between states has been long enjoyed by citizens of the United States, even though the “textual support” for this right is a bit unclear.  Still, as stated in the 1999 US Supreme Court case, Saenz v. Rose, “we need not identify the source of [the right to travel] in the text of the Constitution. The right of ‘free ingress and regress to and from’ neighboring states which was expressly mentioned in the text of the Article of Confederation, may simply have been ‘conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.’ ”

Yet, the state of Rhode Island began to hunt down New Yorkers traveling to their state, going so far as to use the National Guard to track these travelers to the places they were staying.  A checkpoint was established on I-95, and cars with New York license plates were specifically targeted.    After less than a week of these excessive tactics, Rhode Island, under threat of a lawsuit from New York State, broadened their approach to include “any person coming to Rhode Island from another state for a non-work-related purpose” who “must immediately self-quarantine for 14 days.” 

Florida has set up similar checkpoints on its highways, targeting vehicles with New York plates coming from the North, and vehicles with Louisiana plates coming from the West.    To date, neither New York nor Louisiana has made any statement regarding these obviously illegal actions by Florida’s governor, Ron DeSantis, who has also instructed his state troopers to threaten those who do not self-quarantine with 60 days in jail. 

INFRINGEMENT ON THE RIGHT TO WORSHIP

As is stated in the First Amendment to the US Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”    There are fewer statements that are more direct and clear than this statement of the law of our land.

Yet, in Kentucky, the governor issued an order stopping all in-person gatherings, including festivals, government meetings and church services.  California also ordered the closure of their churches, deeming them to be an “unessential service.”  The Mayor of New York threatened to permanently close churches and synagogues that did not comply with his orders. 

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Despite these threats, various churches have kept their doors open in defiance of the civil authorities.  In Louisiana, Pastor Tony Spell of the Life Tabernacle Church stated, “We hold our religious rights dear, and we are going to assemble no matter what someone says.”    Florida went so far as to arrest Pastor Rodney Howard-Browne, who refused to close his church in Tampa.  Once more, Florida had not deemed church services to be an “essential service.” 

These are but a few examples of the overreach and unconstitutional power grabs going on throughout the country.  Yes, the state does have the power to act in the interests of the health and safety of its citizens.  But it does not have the power to exact criminal penalties on those who do not follow “stay at home” orders.  All the state can legally do is quarantine those who will not stay at home.  However, establishing quarantine centers costs more money than threatening citizens with criminal penalties, and enforcing these illegal laws on the few who will not cooperate.

And of course, it never hurts to take advantage of a crisis, and expand your power – does it?

This article was provided exclusively to the New York Analysis of Policy and Government by Judge John H. Wilson (ret.)

Photo: Pixabay

As the coronavirus, which originated in Wuhan, China, spreads across the globe, here in the United States, local, state and the federal government have taken extraordinary measures to stop the spread of the illness.  President Trump had initially issued federal guidelines asking people to “shelter at home” until approximately Easter (April 12).  This guideline has recently been extended to the end of April. Many states, including Maryland and Virginia, have issued mandatory “stay at home” orders to their citizens.  As reported in USA Today, “at least 30 states have such orders in place, although they go by different names – often shelter in place or stay at home – and they have exceptions for essential tasks such as grocery shopping, visiting a doctor and exercising, as well as some jobs deemed critical.” 

The Mayor of Washington, DC, Muriel Bowser has threatened criminal penalties for not obeying her “stay at home” orders, including imprisonment up to 90 days, a $5,000 fine, or both.  She is not alone – The Governor of Hawaii and the Governor of Virginia (remember Ralph “Blackface” Northam?) have made similar threats. 

As is natural in a country dedicated from its inception to freedom, many citizens have complained about these heavy-handed efforts to keep people away from each other.  However, it must be remembered that the government has broad powers to protect the health and safety of its citizens.  For instance, in the 1915 US Supreme Court case Sligh v. Kirkwood, the Court stated that “the power of the State to . . . prevent the production within its borders of impure foods, unfit for use, and such articles as would spread disease and pestilence, is well established.”   As stated by the Legal Information Institute, “there…can be no question of the authority of the state, in the interest of public health and welfare, to forbid the sale of drugs by itinerant vendors…nor is it any longer possible to doubt the validity of state regulations pertaining to the administration, sale, prescription, and use of dangerous and habit-forming drugs.” 

In their article, “Public Health Strategy and the Police Powers of the State, authors Galva, Atchison and Levey state “the doctrine of state ‘police power’ was adopted in early colonial America from firmly established English common law principles mandating the limitation of private rights when needed for the preservation of the common good. It was one of the powers reserved by the states with the adoption of the federal Constitution and was limited only by the Constitution’s Supremacy Clause—which mandates preeminence of federal law in matters delegated to the federal government—and the individual rights protected in the subsequent Amendments.”  However, “the application of ‘police powers’ is not synonymous with criminal enforcement procedures; rather, this authority establishes the means by which communities may enforce civil self-protection rules. More specifically, public health police power allows the states to pass and enforce isolation and quarantine, health, and inspection laws to interrupt or prevent the spread of disease.”   

Therefore, under this reasoning, the criminal penalties sought by the states cited above for violations of “stay at home” orders are unenforceable and illegal.

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INFRINGEMENT OF THE RIGHT TO BEAR ARMS

One of the worst examples of the abuse of the State’s police power comes in the form of the closure of gun shops.  Several states, including Maine, New Jersey and California, all attempted to close gun stores, claiming they were not “essential services.”  In Maine, the order came from the Governor, Janet Mills.    In California, the LA County Sheriff, Alex Villanueva issued the shutdown order, and was quickly supported by Governor Gavin Newsom. 

All three states have received a “slap down” in one form or another.  President Trump recently added firearms manufacturers and sellers as an “essential service” to the advisory list provided by the Department of Homeland Services to the states.    New Jersey has been sued for their attempt to halt the sale of firearms in their state,  and the National Rifle Association has also brought suit against California for their illegal effort to close gun shops. 

This article was provided exclusively to the New York Analysis of Policy and Government by Judge John H. Wilson, (ret.) It Concludes Tomorrow.

Photo: U.S. Supreme Court (Supreme Court)