Pendhamma Sindhusen is an independent political columnist and analyst.
During this extraordinary time of Coronavirus pandemic, states across America have issued their lockdown, stay-at-home orders in an attempt to contain the transmission of the novel but lethal pathogen, as a damage control measure. But in the past week, protests have emerged in certain states like Texas, Minnesota and California, to call for an abrogation of such orders. The protesters claim that those orders are a flagrant infringement upon their individual liberties endowed by the Constitution. But are they right? Do the lockdowns violate the supreme law of the land? The answer is it’s very complicated.
Above all, though, the Constitution and its provisions apply to both peacetime and wartime or cases of emergency (as the Supreme Court opined in 1866 “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances”). Those protesters retain their right to free speech and peacefully assemble under the first amendment despite the disapproval and discouragement from many. And they do have a legitimate concern over the state’s expansive powers which could pave a path to tyranny, besides the fact that the lockdown has adversely affected their personal finances and devastated the national economy. Indeed, their protests hold both valid procedures and valid rationales.
But while that is true, overturning the lockdown orders is still an arduous task. Ostensibly, the only viable path is to involve the judiciary. But to appeal for judicial review, an individual must present to the court a writ of habeas corpus, which incidentally though unlikely could be blocked by Congress. In this case, to appeal for a rescindment of lockdown measures because they violate individual rights, one must state precisely which rights are violated. The right to work? This one doesn’t exist in the Constitution. The right to basic income? Neither does this one. Seemingly, the right to travel is the best bet.
Under the Comity Clause of the US Constitution (Article IV, Section 2, Clause 1), “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” That means a citizen of, say, Massachusetts also has their privileges in, say, California or Florida. As the Supreme Court ruled in a 1982 case called Zobel v. Williams, this implies the right to interstate travel. In that case, Justice Sarah Day O’Connor explained “Article IV's Privileges and Immunities Clause has enjoyed a long association with the rights to travel and migrate interstate. The Clause derives from Art. IV of the Articles of Confederation. The latter expressly recognized a right of ‘free ingress and regress to and from any other State,’ in addition to guaranteeing ‘the free inhabitants of each of these states . . . the privileges and immunities of free citizens in the several States.’”
The lockdowns, which hampered individuals from traveling across state boundaries (and literally anywhere), could be challenged for violating this right. However, the challenge could be countered by the assertion that states wield “police power”.
The police power is the power secured exclusively by individual states to regulate behavior and enforce order within their territory in order to protect the health, safety, and general welfare of their inhabitants. In 1905, ruling the case Jacobson v. Massachusetts in which pastor Henning Jacobson resisted the state of Massachusetts’ mandatory vaccination measure imposed as a response to a smallpox outbreak, claiming the measure violated his freedoms and trespassed the Constitution, the Supreme Court affirmed that such power is applicable, within the bounds of reason, in times of public health crises. This means states have the authority to execute measures they deem necessary and reasonable in response to the COVID-19 pandemic. Such measures would include “preventive detention”, which could translate into a total lockdown.
“Preventive detention” is the detention of unconvicted individuals deemed threatening to the community, not as a punitive measure but as a measure to preclude the harms they might inflict on society. In 1984, Congress enacted the Bail Reform Act which conferred to the federal government power to preventively detain dangerous individuals. The act was found in no violation of the Due Process clause or the eight amendment by the Supreme Court in United States v. Salerno (1987). That prompted states across the country to pass similar statutes and hold preventive detention authority of their own.
In this pandemic case, the preventive detention power would apply since quarantined citizens have yet to be found guilty of anything and the lockdowns are implemented to prevent harm to society. The federal government, however, cannot invoke such power due to the restraints posed by the Public Health Service Act, namely Section 264 of United States Code title 42 which addresses “regulation to control communicable diseases”. The law allows for only quarantine or detention of infected persons and those believed to be infected. That undoubtedly doesn’t apply to the whole populace. The power to issue lockdowns therefore falls to each state’s jurisprudence.
Since each state has their police power to enforce for the good of public health safety during a public health crisis, their preventive detention, aka lockdown, orders seem kosher as long as they remain reasonable, which they probably are. Those orders were issued to prevent further transmission, “flatten the curve” and hold the current situation back from morphing into a catastrophe. Although there’s a justifiable need to be concerned over the government’s overreach and impingement upon Constitutional freedoms and the extensive economic demolition the lockdowns have incurred (not to mention its social/humanitarian corollaries such as depression, suicide and divorce), they do have a sound basis.
At the same time, the assertion that lockdown dissenters across the country put forth, that the lockdown violates their constitutional rights, also hold a firm ground. The question now, as with the case of personal liberty and the PATRIOT Act/state surveillance, comes to whether God-given rights and freedoms should be sacrificed for the sake of public safety. Maybe Benjamin Franklin already gave us an answer in his famous quote “those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”