To all you Yahoos who think you have a constitutional right to congregate during a pandemic

To all you Yahoos who think you have a constitutional right to congregate during a pandemic

The short of it is that you don’t.

For at least the last few hundred years, the law has recognized the government’s responsibility to protect the public health via its police powers. That job primarily falls to the states under the 10th Amendment, which provides that all powers not expressly granted to the federal government resides in the states.

There are many cases where state and the federal government have been allowed to lock-up people considered dangerous to the health, welfare or safety of the public. I have discussed the Korematsu case, where over 100,000 Japanese Americans were rounded up and interned in camps away from population areas. The fact that half of them were American citizens didn’t help them one bit. The Supreme Court said that was fine.

You all know that in Jacobson, the City of Cambridge was allowed to compel small pox vaccination (sort of, since there was a $5 penalty if you didn’t vaccinate). The Supreme Court also allowed Kansas to civilly detain a sexual predator after the end of the predator’s criminal incarceration, in order to protect the safety of its citizens.

Most of you probably don’t know that there were widespread contagious disease epidemics during colonial times, mainly yellow fever. In 1798, the Pennsylvania governor issued a ban on travel between New York and Philadelphia.

What about my constitutional rights of freedom to associate, worship and my freedom to do whatever I please?

The rub is that all such rights are not absolute and conditional on other competing rights. Constitutional jurisprudence mostly involves the courts weighing competing constitutional rights. Often, these cases involve the government’s ability to restrict individual rights. In the context of a government’s exercise of its police powers to protect the public health and welfare, the government almost always wins, except in the communicable disease litigation, where you can pretty much delete the “almost.”

As I repeatedly say in these posts, the CONSTITUTION IS NOT A SUICIDE PACT and the individual’s right to freedom of movement will always lose to the rights of the public to health and safety.

A corollary is that individuals don’t get to decide what is necessary to protect the public health. In other words, you can do what you want to yourself as long as you are not adversely affecting other people, and you don’t get to decide whether what you are doing adversely affects other people (in public at least).

So, do you have a First Amendment right to attend church during a pandemic where there is a shelter-in place order?

That would be a hard no.

Last week, a New Yorker filed a federal lawsuit arguing just that, namely that the shelter in place order unconstitutionally interfered with his right to worship. He didn’t get a TRO, and he will not get a preliminary injunction from the judge, who ironically, is most likely reviewing the papers from her home, due to the shelter-in place order.

How about a constitutional association right to drink beer with your friends in a public park?

Another hard no.

What judge in her right mind is going to overturn a shelter-in-place order which is supported by the local and statement government and the responsible governmental health authorities and which has hospitalized tens of thousands of people around the world and is killing people at an alarming acceleration?

What about the fact that there is a guy from Stanford and a couple other scientists from impressive universities who say that the shelter-in-place thing is an overreaction/not justified by the data?

Doesn’t matter. Government officials make these decisions. That is the way it works in every country regardless of the system of government. Outside experts can voice their opinions and can have influence on the relevant government public health officials, but that’s about as far as it goes.

How does that change?

I suppose when it becomes so unpalatable to the public that the politicians have to overrule health officials. Trump sent some recent feelers out about reopening the country by Easter, but he was forced to back down due to the push-back from the state and local government authorities. These types of decisions have to be made by consensus.

Is this whole coronavirus hysteria overblown?

I certainly hope it turns out to be overblown, but for now, all responsible government officials think their concern and the restrictions imposed are justified. We will have a better idea in the next few weeks.

A special note to the vaccine concerned

If you are vaccine concerned and/or hate big pharma, there will be some especially tough times for you in the future. The world and your rights are going to look quite different in the post-coronavirus world. Influence makers are talking about things now which a few months ago wouldn’t have been taken seriously.

There are places in the world like Africa where you can’t get in without proof of whatever are the required vaccinations. That will probably expand once there is a coronavirus vaccine, especially if there are multiple waves of the pandemic like there was with the Spanish flu. And speaking of which, the second wave of the Spanish flu was far more deadly than the first. Hopefully that will not be the case with this contagion, but I would bet it is on the minds of the public health officials.

Sadly, this is going to put the whole California medical exemption issue is a whole new context. I suspect many of you already know and fear that. But that is a discussion for another day.

For now, my advice is do not make the problem worse, because the worse it is/becomes, the worse it will be for you down the road.

Follow the recommendations of the authorities, and let’s see what happens.

Rick Jaffe, Esq

2 thoughts on “To all you Yahoos who think you have a constitutional right to congregate during a pandemic

  1. Are you talking about “rights” in the strictly legal sense of the term, or are you expressing agreement with the moral assumptions underlying today’s laws?

  2. You misunderstand what people are primarily concerned about, which is mandatory vaccinations with the newer vaccines. The anti-vax movement is gaining steam either through sensible skepticism or by conspiracy theories. It doesn’t matter really. Fear has always been a better motivator than rationale, so I’ll take it.

    You really shouldn’t have brought up the Spanish Flu (SF) as an example to prove your point, because it is clear your knowledge about the matter is very limited.

    The Spanish flu and its proliferation were due to entirely different circumstances, unlike COVID-19. WW1 being a large factor. You do understand that the field of virology was in its infancy during that period and that the antibiotics necessary to fight the SF, weren’t discovered until a decade after the Spanish Flu? Most SF victims succumbed to bacterial pneumonia following influenza infection.

    The nutraceutical and pharmaceutical options available today, such as vitamins, antibiotics, and antiviral were not available in 1918, so I believe your prognosis about compulsory vaccinations will come out to be VERY wrong.

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