This week’s segment of Cline on the Constitution discusses The Power to Close Down and Re-Open.

I have watched with interest the developing debate over “reopening” American society. It is playing out at the federal, state and local levels. It seeks answers to exactly who has power under the Constitution as well as under a wide variety of state laws.  It involves basic human rights like Freedom of Religion, Freedom of Travel, Freedom to pursue one’s chosen vocation.  

These and related matters are finally finding their way to the Courts.  I’ve been surprised it has taken as long as it has.  It may be because there is such confusion about what legal remedy to seek, which legal forum to select, and who exactly, if we really want to sue the bastards, do we file our lawsuit against.  And, of course, one big deterrent is the way the Courts themselves rushed to close and delay their proceedings.  Not many courageous heroes stepping forward from the legal profession.  Though there are exceptions, in California, under the stewardship of a clueless State Chief Justice the Courts mostly brave the dangers with Zoom broadcasts from their well-appointed chambers or their coastal condominiums.

In attempting to put the matter in the proper perspective there needs to be clarity regarding what exactly the issue is are we talking about.  As I have discussed in past posts the United States Supreme Court has recognized that Government in general and the President and Congress in particular have extraordinary powers to act in an emergency like war. And because matters of public health are traditionally handled at the State level, local authorities can act enact regulations and rules that would by Constitutionally unacceptable in ordinary times.  Both levels of government can even suspend civil rights if there is a compelling need and the actions of the government are narrowly focused on addressing that need.   This is called the Strict Scrutiny test and there is ample Supreme Court precedent for its application.  

But there is no precedent for setting up a shadow government that regulates every aspect of a citizen’s life, arbitrarily categorizes one’s livelihood and role in society as “essential” or “non-essential” and governs the most mundane types of personal conduct.  And, by the way, though the Virus is terribly dangerous and vicious in its consequences, this is not a war.  War is a tired metaphor and is overused by the Media and public officials.  Not every disagreement is a “battle” and not every criticism is an “attack.” And, when discussing the Constitution and our rights, preciseness of language is important.  It is one thing to fight a real war that has existential consequences for the future of the nation and another altogether to respond to a public health emergency. 

There is nothing in the Constitution which expressly grants the power to government, Federal or State, to suspend all civil rights in the name of a health emergency.  And there is certainly no clause in the Constitution which grants officials the power to “close down” society and then decide when it will be allowed to reopen. Those powers, it is being argued, are implied from past exceptions made in very limited circumstances which the Supreme Court found acceptable.  When the President and the Governors engage in a debate over which has the power to reopen, the answer is neither because neither has the power to keep it closed. 

The Virus does present a unique threat and also, from a Constitutional perspective, novel issues.  While there is precedent, as I’ve stated, for imposing quarantines and isolating individuals to limit the spread of infectious disease, there is no historical basis for actions as widespread as has been imposed in the last couple of months.  

There is no clear answer to how the Constitutional questions will be answered, but we can say there will be a need to address three issues.  1) The Supreme Court case most often cited as a basis for extraordinary governmental actions in health emergencies is well over a hundred years old, did not involve the type of emergency we now face and is of questionable validity in modern America. 2) Federalism issues regarding the sharing of powers between the Federal Government and the States need to remain in balance. 3) Equal Protection of the Laws as guaranteed by the Fourteenth Amendment should be addressed, given the wildly unequal and uneven application of the shutdown and reopening rules from State to State, indeed from county to county and city to city.

Because of space limitations I will discuss each of the three issues in separate posts.

The Precedent.

The Supreme Court in 1905 decided the case of Jacobson v Massachusetts.  Jacobson refused to be vaccinated against smallpox.  A monetary fine was levied against him.  The Supreme Court upheld the fine.  It held “the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety peace, good order and morals of the community. Even liberty itself is not unrestricted license to act according to one’s own will.  It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law.”

Though 115 years old, the Jacobson case continues to be cited by lower federal courts in cases of public health emergencies like the limited quarantines used during the Ebola scare of a few years ago as well as some of the cases involving restrictions on religious gatherings during the current Coronavirus emergency.  And the Attorney General of California has heavily relied on the Jacobson case to defend the draconian assertions of power by our own Governor.  

Many scholars, however, are of the opinion that Jacobson is simply outdated.  

In 1905, individual rights we take for granted today did not exist.  The incorporation doctrine which was used to make the Bill of Rights applicable to State Governments instead of the being limited to the Federal Government as originally drafted had not been broadly applied.  (For example, the First Amendment states “Congress shall make no law abridging Freedom of Speech” it says nothing about States doing it. It took the incorporation doctrine to extend the prohibition to the States). Additionally, in 1905, Women could not vote, African Americans were subjected to Jim Crow laws and the “Separate but Equal” segregation allowed under the infamous Plessy vs Ferguson case dominated the South and some other regions of the Country. 

To communicate the flavor of the times, one commentator pointed to a decision which used Jacobson as precedent. It was penned by no less an eminent Supreme Court Justice than the famous Oliver Wendell Holmes. It was rendered in 1927 and captures the dangerous deference the Court in those days paid to State actions if the State cited as justification “the public good.”  

In that decision, Buck v Bell, the Court citing Jacobson upheld the forced sterilization of a young woman. Among other things Holmes opined, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.  Three generations of imbeciles are enough.”  

It beggars the imagination that the Supreme Court would uphold such a rule today.  Yet Buck v Bell was a case based on Jacobson, and Jacobson is the same case being cited today by California’s Attorney General to defend orders severely restraining Californian’s personal liberities.

The Supreme Court has come a long way in its willingness to restrain the worse impulses of those who lean toward petty tyranny and who somehow come to occupy important offices across our land. If the Court fails to strike down the Jacobson formulation as arcane and contrary to our understanding or rights, I fear permanent damage will be done to the Constitution.  One hypothetical may be relevant. Consider this: there are those who believe Global Warming is an imminent public health threat and constitutes a dire emergency.  Does that mean that if these True Believers are placed in office, they have the power to suspend the Bill of Rights until the threat of Global Warming is eliminated?

For more writings by Phil Cline, visit philcline.com