In 1832, the U.S. Supreme Court struck down a Georgia law that imposed regulations on the comings and goings of white people in Native American land. This foundational ruling controversially recognized that Native Americans have some semblance of sovereignty and privacy in their interaction with U.S. governments. In defiance of the decision authored by Chief Justice John Marshall, President Andrew Jackson famously responded, “John Marshall has made his decision; now let him enforce it.”
At the time, this mocking response undermined the very idea of judicial review, entrenched nearly three decades earlier in Marbury v. Madison. Today, it is a sobering reminder that our rights only exist to the extent that may be enforced. In 1832, the Supreme Court’s authority was tested by the Executive branch of government. Today, the basic principles of American law, and the individual rights afforded to us by the U.S. Constitution, are under assault by that same branch.
Executive Orders in Response to COVID-19
In the past 2 weeks, Governors around the nation have unilaterally imposed sweeping orders that have curtailed almost every tenet of American freedom. In Maryland, Governor Hogan has implemented social distancing measures of escalating intensity – first closing recreational businesses and facilities, then businesses deemed non-essential, followed by schools. On March 30, he closed ‘outside’. Where at first some of these measures had been advisory, his latest order made them enforceable. In doing so, he made the simple act of meeting friends or playing a game of basketball a crime. “We are no longer asking or suggesting that Marylanders stay home” Hogan said shortly after announcing the order, “We are directing them to do so.”
Ordinarily, such a statement would (and should) be regarded as the raving lunacies of a despotic autocrat who ought quickly be removed from office. However, under threat of punishment, forced deference to these totalitarian impulses has put millions of Americans out of work, closed thousands of businesses, and infringed the fundamental rights of at least 75% of Americans. When one considers the economic and social consequences of these ‘stay-at-home’, ‘lock-down’, and ‘shelter in place’ orders, their legality must be questioned; especially when such orders are executive in nature, enacted by the flick of a pen of a single man or woman. When the National Guard is deployed in Rhode Island to go door-to-door and order New Yorkers to maintain a 14-day quarantine, when citizens like Shawn Marshall Myers of Maryland are arrested for hosting private parties, and when citizens are threatened with severe punishment for violating lock-down orders (in Alaska, up to 1 year imprisonment and $25,000 fine), we should be outraged. We should be compelled to challenge such orders in the interest of firmly establishing for posterity the superiority of individual Constitutional freedoms over the ‘Social Contract.’
The Contracts Clause of the U.S. Constitution prohibits the states from interfering with lawful contracts, yet these orders have interfered with millions of leases, employment agreements, and service contracts.
The Due Process clauses of the Fifth and Fourteenth Amendments prohibit the federal and state governments respectively from interfering with life, liberty, or property without a trial. The Takings Clause of the Fifth Amendment provides that the Federal government may not interfere with an individual’s property – real and personal, tangible and intangible – without just compensation. The Fourteenth Amendment extends the Takings Clause to the states. Nonetheless, private citizens are being forced to stay home, businesses are forced to close their doors, and manufacturing plants are shut down under threat of fines and imprisonment. The CARES Act can hardly be considered “just compensation” for the widespread deprivations of personal and commercial freedoms.
The Privileges and Immunities Clause prevents a state from treating citizens of other states in a discriminatory manner, and establishes the right of every state citizen to freely move in and out of each and every state. Notwithstanding this, states nationwide are quickly implementing travel restrictions. Rhode Island mandated that New Yorkers must self-quarantine in their state for 14 days before expanding the mandate to every other state. West Virginia State Police have been deployed to monitor state roads and highways to enforce their own self-quarantine order, and Florida has set up roadside checkpoints to screen travelers entering from Louisiana.
The Thirteenth Amendment prohibits slavery and involuntary servitude. This would seem quite a plain and inviolate prohibition. Nevertheless, § 14-3A-03(c) of the Maryland Code (Public Safety), the statute that authorizes the Governor’s extraordinary health emergency powers, empowers the Governor to order health care providers to involuntarily “participate in disease surveillance, treatment, and suppression efforts” and may reprimand, place on probation, or suspend or revoke a license or certificate of any provider who fails to comply the order. This authorizes the state government to force a health care provider to choose between involuntarily serving on the front-lines of battle with a deadly virus or the revocation of the license that likely supports their livelihood.
Most importantly, the First Amendment protects the right of every individual to peaceably assemble, to enjoy free exercise of their religion, and to petition the government for redress of their grievances. Despite this, the lock-down orders have indiscriminately criminalized gatherings, capturing both social parties and religious masses in their wake. Affected citizens are also deprived of the opportunity to seek redress for any of these flagrant violations of protected liberties as the courts are closed.
This is only a surface-level examination of the civil liberties that have been violated in recent weeks by the Executive branch of American governments. A deeper examination quickly reveals that other rights are indirectly violated by actions such as the closure of ‘non-essential’ gun stores and cessation of ‘elective’ surgeries like abortion.
A History of Transgressions
It does not take long to resolutely determine that rights considered inviolate only weeks ago are being quickly dismissed. How is this possible? American history has shown that at least two essential elements are necessary: a majority population willing to trade their freedoms for state protection, and a government that is willing to violate the freedoms of the few dissenters to offer the protection sought by the many.
During the Civil War, President Abraham Lincoln incarcerated those who challenged his wartime decisions in military prisons in the interest of public safety. During the Great Depression, President Franklin D. Roosevelt seized property without compensation to avoid economic calamity, and signed an Executive Order shortly after the bombing of Pearl Harbor to imprison over 120,000 people of Japanese ancestry – 62% of which were U.S. citizens – to prevent espionage during World War II. Indeed, as noted by constitutional scholars Melvin Urofsky and Paul Finkelman on President Woodrow Wilson’s attempt to suppress free speech during World War I, government efforts to make the world safe for democracy are ironically apt to trigger the worst invasions of civil liberties.
A Dangerous Precedent
Importantly, the legality and constitutionality of oppressive Executive Orders is unaffected by the political, economic, or geopolitical climate. As noted by the 1866 U.S. Supreme Court in Ex parte Milligan, “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.” This excerpt makes it clear that it is entirely immaterial that the world is now suffering and warding against the spread of the COVID-19 virus. The Constitution, and the rights and freedoms preserved by it, prevail whether the nation is at war with itself, a foreign power, or a deadly virus. They are supreme to the ‘Emergency Powers’ legislation upon which state leaders have relied in the execution of orders.
The rights enshrined in the U.S. Constitution, both those enumerated and those unmentioned but secured by the Ninth Amendment, are but mere articulations of personal liberties that prevail as a matter of nature. They are the freedoms that men and women inherit as a blessing of life, recognized in the Declaration that labored to birth this nation as “sacred and undeniable”, “inherent and inalienable” so that we may achieve self-actualization and pursue our happiness. These divine liberties, the express preservation of which makes America the freest nation in the history of the world, are protected from interference by the totalitarian and majoritarian alike. The many may not sacrifice the freedoms of the few, or even the one – the Social Contract be damned.
Some may consider the attendance of Spring Break festivities by youths and the throwing of ‘coronavirus parties’ detestable, a flagrant disregard for the safety of society’s most vulnerable. This behavior rightly attracts the same pedigree of disgust others feel when dissidents burn the American flag. However, no matter how flagrant the disregard, no matter how objectionable, socially-compromising or disgusting the behavior, it is nonetheless behavior of a protected class.
Certainly, people should, where possible, stay home. They should observe social distancing guidelines in the same way that others should refrain from burning the flag or derogating others on a racial basis with hateful speech. They should be judged harshly in accordance with our individual conscience if they fail to comply. They should not, however, be forced to comply under threat of severe state punishment.
A dangerous precedent is set if we permit one government today to use the virality and danger of COVID-19 to justify stripping our fundamental human and Constitutional freedoms. If we do not now stand up and challenge these Executive Orders, then our Constitutional rights are not rights at all, but mere licenses capable of dispossession at the whim of political convenience. If we allow this precedent to be set, how long until a future government uses the same justification to ‘protect’ us from a ‘viral’ and ‘dangerous’ ideology? After all, what is more dangerous and viral than an idea?