Cline on the Constitution

Coronavirus Quarantines

With stunning speed our society, the most free in history, has had its meeting places shut down, its stores and products rationed, its children’s schools closed, its churches shuttered, its freedom of movement restricted and its population instructed (indeed ordered) to stay at home and off the public byways.  Even Martial Law is threatened by California’s Governor, an official who has never showed the slightest interest in public safety before.  

Just as stunning has been the citizenry’s almost universal compliance with the government’s interference with basic civil rights. At least so far.

Voluntary compliance with the orders given under Emergency power is one thing, but what of the instances where there is non-compliance?  What of the Constitution?  If a citizen refuses to do what some federal, state, county, or city official tells him to do, does the Constitution still have a role?  Has the Constitution been suspended?  Have the rights enshrined in the Bill of Rights been placed on the shelf to be taken down and dusted off some day when the virus runs its course? 

There have been isolated reports of disobedience.  In Louisiana the police showed up at a church which refused to hold their numbers to the required limits and threatened the pastor with the national guard if he violates the order again.  Gun and ammo sales are forbidden in some locales but took place anyway.  A bar refused to close. Young spring break rowdies partied on in defiance of orders to leave the beaches. 

Rare disobedience.  But what if it becomes more widespread and arrests are made, complaints filed?  

What can a citizen expect from the inevitable collision of the Constitution and the raw power of the government being projected in an Emergency?  

I’ve discussed Emergency Powers under the Constitution in previous posts.  Those discussions centered around the President’s and Congress actions during times of war.  Indeed, actions of the government during an emergency have been a recurring issue since the beginning of our Republic. Examples are many and included the Alien and Sedition Acts of 1798, Lincoln’s suspension of habeas corpus during the Civil War, Roosevelt’s internment of Japanese citizens during WWII. 

As an aside I will make this observation.  Inevitably, once the Emergency has passed there will be reviews, Monday morning quarterbacking, and recriminations.  The reviews will be done in a calm reflective atmosphere in which all the facts, unknown now, will be known and alternatives thoughtfully weighed and balanced.  And how the government should have acted will be judged by academic types who have never had the responsibility to act in an Emergency on anything.  In writing their papers and giving their lectures, they will never have to face the existential question faced by Lincoln when he asked, “Is it possible to lose the nation and yet preserve the constitution?”

What are the powers of the State during an Emergency like the one we are experiencing now?

The enforcement of orders made to stem the spread of the disease is an exercise of a state’s “police power.” The governing principles were adopted in early colonial America from English Common Law.  Those principles recognized there could be a limitation of private rights when needed for the preservation of the common good. 

One clarification: The application of “police powers” in the public health arena is not synonymous with criminal law enforcement. Rather, it is the authority to enforce civil self-protection rules. It is the power of the government, in the current situation, to pass and enforce isolation and quarantines to prevent the spread of disease. 

Historically, the exercise of such power enjoyed strong support from the courts.  The power was only restrained when the government engaged in open disregard for individual rights. To avoid Constitutional limitations the States only had to demonstrate that public health orders like quarantines were intended to further public health objectives. 

Interestingly, the first time the government used the police power in this way occurred after the end of the Revolutionary War, when Philadelphia was isolated to control the threat of Yellow Fever. 

By the time the federal Constitution was drafted, the use of quarantines were already a well-established form of public health enforcement.  The Supreme Court, for its part, consistently ruled that the State had the power to quarantine “to provide for the health of the citizens.” Over the life of the Republic, the uncontrollable nature of epidemic diseases moved the Supreme Court to regularly uphold such extreme measures on the basis of the defense of the common good.

They applied a very loose standards of review.   Generally, the courts invalidated measures only when the degree of restriction of personal liberty was found to be unconscionable.  

In the seminal case of Jacobson v. Massachusetts, the Supreme Court upheld the validity of a quarantine using just such a deferential standard of review. They, in effect adopted a rule that created a presumption of a quarantine’s constitutionality. In effect, the American legal system supported the subordination of individual rights when necessary for the preservation of common good.

However, the treatment by the Supreme Court changed markedly during the two decades beginning in the late 1950s. The Warren Court’s liberal emphasis on individual rights remade the basic tenets of police power.  As has been outlined in previous posts, they laid the foundation for the expansion of rights of an accused, established the right to privacy, abortion and the expansion of many other rights.  And in the area of public health enforcement, the Warren Court, like it did in other areas substituted the traditional deferential treatment of public health actions by the government with a heightened standard of review.  The new standard demanded that the least restrictive limitation to constitutional rights be used to further compelling state interests, and closely scrutinized the exercise of police power for constitutional infractions

The review of quarantine cases moved from a presumption of constitutional validity to the use of Strict Scrutiny test for constitutionality. Strict Scrutiny is the toughest test used by the Supreme Court in reviewing governmental actions that impinge on individual rights and must be passed by the government to meet Constitutionality.  

For example, not only must the government convince the Court there is a compelling need for the action like a quarantine, (Coronavirus certainly meets that), but also the orders are the least restrictive means necessary to justify the State’s action.  Is a blanket quarantine of tens of millions of citizens the narrowest use of the tool?  That might be questionable.  

Also, the Warren Court’s focus on civil rights in turn, led to the extension of the rights to pre-hearing notice, to legal counsel, to confront and cross-examine witnesses, to be committed only by clear and convincing evidence, and to preserve a record on appeal, to any citizen subject to an order of quarantine. 

The Warren Court decisions also affected public health activities such as testing, contact testing, and closing places identified as foci of contagion. 

While we all must do our part to fight the spread of the coronavirus, and that includes following the reasonable instructions of our leaders, it is not a blank check giving up all our rights. 

The Constitution is still there.  And, when challenged, actions of the government must still pass Constitutional muster.

For other writings by Phil Cline, visit philcline.com