COVID-19 is certainly a killer of humans, but might it also deal a death blow to some of our constitutional rights? Could some of the orders handed out by government leaders to fight the virus step over the line and someday be branded unconstitutional?
Two top constitutional scholars recently examined that during a Federalist Society teleforum.
Univ. of Calif. at Berkeley School of Law Prof. John Yoo framed the present complaint. He said, "There are libertarian-conservative critics who think the government is going too far, that claim these measures we're seeing, as Judge Napolitano at Fox News put it, constitute a government assault on our freedoms in violation of the Constitution."
Indeed, in a commentary entitled "Coronavirus Fear Lets Government Assault our Freedom in Violation of Constitution," Napolitano charged some governors, mayors, and feds have issued such draconian decrees, he accused them of acting on "totalitarian impulses."
"The fulfillment of these totalitarian impulses has put more than one 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," Napolitano wrote.
It's Not Unconstitutional to Assure Survival
John Malcolm of the Heritage Foundation answered by bringing up past cases where American courts ruled some measures that plainly appeared unconstitutional were indeed legal when it came to battling clear destructive forces like a deadly disease, virus, or fiery inferno.
Malcolm stated, "The Supreme Court has actually weighed-in in a couple of cases. The first one of these cases which tested the authority of states to enact measures like this was a 1905 case, Jacobson v Massachusetts."
Henning Jacobson, a pastor who'd come from Sweden, wanted nothing to do with a Massachusetts' mandatory vaccination to fight smallpox, which was ravaging the state at that time.
"Henning Jacobson said, 'I'm not going to do this.' He was prosecuted and given a rather hefty fine," Malcolm said, adding that Jacobson appealed this all the way to the highest court, claiming the mandatory vaccination was an assault on people's bodily integrity.
Legal to Force Vaccinations, Legal to Force Military Service
"And the Supreme Court in a 7-to-2 vote rejected that argument and said basically a community's got a right to protect itself against an epidemic of life-threatening diseases, and that can include forced vaccinations," the Heritage Foundation scholar summed up.
So all that shows state authorities have a lot of power constitutionally to resist deadly threats.
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Malcolm went on, "Then a few years later, Congress passed a mandatory, compulsory draft. And that was challenged by people saying 'you're violating the 13th Amendment. You're literally taking our services, sending them overseas.' And the Supreme Court in what's known as the Selective Draft Law Cases of 1918 unanimously rejected that. It said 'no, there are times when we can actually compel you to go do something, even if it puts you in harm's way. Because it's for the good of the nation.'"
So that showed the federal authorities also have much constitutionally-sanctioned power at their fingertips.
Trump's Been Treading Cautiously
But in this present crisis, Yoo commented that "Actually, what the pandemic is showing are the limits of presidential power."
He believes President Trump has been leery of overstepping legal limits on the executive branch, to the point where he's been blasted for his caution.
As Yoo put it, "I actually think it's ironic that people have been attacking him for the last three years for excessively using presidential power, for tearing down the Constitution, for going beyond Article 2 limits. And now we have seen for the last month people demanding that the president do more, that the president solve the epidemic."
Yoo believes Trump, for now, has gone about as far as he can constitutionally, "Unless we saw something far more serious occur, such as the break down of law and order in cities, the collapse of local governments. And even then, the president would still need to rely on the requests of state governors for assistance before he could intervene."
Power to Regulate Everything
Indeed, both Constitution and courts have long backed up the idea state governments have more power domestically than does the federal government.
"The states have the police power," is how Yoo described it. "For centuries now, the courts and our institutions have recognized that the FEDERAL government is one of [the] limited enumerated powers, which limits you see in this kind of crisis. But that the STATES have the general police power to regulate everything in their territory – all conduct, subject to constitutional limits."
"Of course the states are still subject to the Bill of Rights," Yoo insisted. "They can't, for example, say 'only Democrats are subject to shelter-in-place and Republicans can go outside and fire off their AR-15s as much as they like.' You can't enforce the police power in a way that violates the First Amendment or the Fourteenth Amendment and so on."
Malcolm mentioned, "This one official in I think Illinois who's tried to ban all sales of guns and ammunition, using this crisis in order to do that – that may very well go beyond what is a reasonable regulation and necessary to protect the general welfare. It may very well impinge on Second Amendment rights."
What Can a State Do and Not Do?
"The interesting thing is not necessarily whether the state of California and the state of New York have the power to essentially enact a statewide quarantine on everybody, but what limits the Constitution places on that exercise of state power," Yoo said.
The Berkeley professor continued, "The states have been allowed by the Supreme Court for over a hundred years now to do things like compulsory inoculations. It's a well-known principle that the state can destroy property in order to stop the spread of a fire, for example. It can close restaurants that fail health and safety codes."
But now we're in murkier waters.
As Yoo put it, "Does that principle go so far as to say businesses which themselves are not in violation of health and safety codes, people who are not actually sick – that the state can essentially shut all those down, but not for anything they've done? Because they didn't do anything, they didn't violate anything, they're not inherently unsafe or unhealthy. Their destruction is not necessary to stop the spread of a fire or a hurricane. It's because they might be places where people who might have the disease might go and spread it to other people."
What Will Happen if People Just Get Fed Up with Complying?
Malcolm chimed in, "You're going to start testing limits when you tell people who are perfectly healthy and show no symptoms whatsoever, 'you've got to stay home.' People are putting up with that more or less at the moment, Spring Breakers notwithstanding, because the discussion is, 'well, we're just quarantined for 14 days.' But if this goes on for seven, eight, or nine months, and you end up having 20, 30, 40 percent unemployment, and a worldwide depression, how will people put up with that?"
If trouble starts to bubble up, he pointed out, "There are already authorities for the governor, and for the president for that matter, to call out the National Guard to help keep the peace."
But what happens if the populace rises up against heavily-armed authorities all around their neighborhoods strictly to police them?
When Does Rebelling Become Actual Insurrection?
"Could you consider that a rebellion that would enable the president to invoke the Domestic Violence Clause [of the Constitution] to call out the military?" Malcolm asked. "There are exceptions for putting down insurrections to the Posse Comitatus Act. We're certainly not there. I don't expect we'll get there. But if this does drag on for a number of months, those provisions could conceivably come to the fore."
Yoo said of that Posse Comitatus Act, "It forbids the use of the military for law enforcement, but it does not forbid the use of the military for non-law enforcement missions, like protection of federal property, federal installations AND, theoretically, the safety of the Republic."
But what constitutes the safety of the Republic? Because Malcolm doubts the populace would rise up in armed rebellion. He foresees a much softer type of rebellion: "People on a daily level just refusing to comply with what they see as irrational orders from their government."
He points out that a wonderful strength of America has been such a belief in the rule of law, that the population almost always practices voluntary compliance. But that has meant America has needed much smaller police forces than many other countries. So one question is are those numbers large enough to force compliance on a population that may just get weary of paying the price government's asking of it in this crisis?