California Governor Gavin Newsom has taken the extraordinary step of mandating all residents stay at home.
Home isolation is not my preferred choice, but it is a necessary one. This is not a permanent state; it is a moment in time.
It’s the first statewide mandatory stay-at-home or “shelter in place” order. But local counties in Los Angeles and the San Francisco Bay area had already issued stay-at-home orders. Chicago has closed all public schools and ordered anyone experiencing COVID-19 symptoms to stay at home or face citations.
New York City Mayor de Blasio is battling with Governor Cuomo to issue a stay at home order. Meanwhile restaurant owners that don’t close can be arrested by the NYPD.
Colorado, Connecticut, Florida, Illinois, Indiana, Iowa, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, New York state, New Jersey, North Carolina, Ohio, Oregan, Pennsylvania, Rhode Island, South Carolina, Vermont and Washington state have all ordered restaurant lobbies, bars, and/or nightclubs closed.
But these mandates are unconstitutional. They blatantly violate the First Amendment.
The First Amendment to the Constitution guarantees “the right of the people peaceably to assemble.” The strict prohibition on any law abridging this right applies to state and local governments as well as Congress.
Under the Incorporation Doctrine (which applies the Bill of Rights to states through case law via the 14th Amendment), the Supreme Court has fully incorporated the First Amendment guarantees to place these strictures on the states.
There are not exceptions for emergencies in the constitution. Guarantees are guarantees. In a 1990 paper entitled, “Emergency in the Constitutional Law of the United States,” University of Missouri School of Law professor, William B. Fisch wrote:
Neither the term “emergency” nor any cognate of comparable generality appears in the text of the United States Constitution.
He also wrote:
the Constitution was intended to function in emergencies as well as in normal times, and therefore an emergency affords no excuse for deviating from its terms
Further, Fisch writes that there are three specific emergency power exceptions explicitly granted in the Constitution (in times of war and rebellion), “inviting the conclusion that the Framers intended no other exceptions to be recognized.”
Throughout the last century “emergencies” have been the pretext for despotic governments to step beyond their legitimate prerogatives.
Governments downplay the radical measures taken in emergencies as “temporary” the way California’s governor did with the stay-at-home order. But all too often policymakers do not retreat from precedents established in “emergencies.” Look no further than the post-9/11 regime.
Further, the state should have the burden of proof that coronavirus is an emergency to take such draconian measures. California’s stay-at-home order doesn’t even meet the standard of First Amendment exceptions granted by courts via case law.
While it is true that you cannot “shout ‘Fire!’ in a theater” when there’s not one (Schenck v. United States, 1919), the government’s prerogative to proscribe speech is limited to speech that creates “a clear and present danger that they will bring about the substantive evils that [the government] has a right to prevent.”
What clear and present danger can California’s governor point to in order to justify the stay at home mandate? Coronavirus? But this mandate applies to 40 million individuals, without due process.
Gavin Newsom has locked down the world’s fifth-largest economy because 870 people in California have coronavirus. He could meet a burden of proof that those infected pose a clear and present danger to others if they are not quarantined.
Ordering anyone with coronavirus, or perhaps even with symptoms to stay at home or in hospital under quarantine would be a reasonable precaution. Locking down all of society is radical and dangerous.
Illnesses caused by contagious germs have always been a part of life in this country. But never before has the government regimented our society so abruptly into something so resembling a despotic police state. The stay-at-home order and others are a greater threat than coronavirus.
Disclaimer: The opinions expressed in this article do not necessarily reflect the views of CCN.com.