The main flaw with people protesting that the government is taking away people’s rights to peaceably assemble, or other such measures to fight Covid-19, is that the virus doesn’t read the Constitution. I suspect that this is in large part due to the virus not being deadly enough.
Suppose for a moment that Covid were far deadlier than it is now, and far more contagious. At what point should the government just clamp down and say, “The Constitution is not a suicide pact and the virus could not care less about your rights, so we are ignoring the Constitution until further notice?”
It could be abused, to set a precedent… Outbreak of 'flu? Gosh, ten whole people died? Mandatory stay-at-home order (why, just around election time, what a coincidence…)
Unlikely in the extreme, but it is something we need to keep in our minds.
Pandemics have always had such exception. If you are quarantined, you still maintain your constitutional rights, but under quarantine. Also note that many of the so called constitutional rights that people wine and cry are being taken away were never constitutional rights at all (don’t tell me it’s the libs that are the winers and criers).
As for the virus, what happens if one side sticks to a set of rules in a war and the other side doesn’t? We see in the American Revolution where the British played by the rules, had red uniforms, stood in easy to shoot at lines, while the rebels hid behind bushes, trees and airplanes and worn clothes more likely to help them hide.
I’m not sure what this means, unless you mean that the virus doesn’t play nice by respecting people’s right to assemble in public and just infects them whenever they are in close proximity, what an unsportsmanlike un-chivalrish microbe.
I think he meant, what if one group of people follow the safety guidelines, stay at home, wear masks, keep a distance, etc., but other people don’t. What if “one side sticks to the rules” and the other doesn’t. For stores, certainly, there is a huge incentive to re-open and pack in as many customers as possible: $$$ There will be many who prefer the $$$ to the risk of lives lost.
[quote=“kanicbird”]many of the so called constitutional rights that people wine and cry are being taken away were never constitutional rights at all
[/quote]
I’ve wondered about this. Right to peaceably assemble is one thing. But there is nothing about mask wearing, 6 feet distance, etc. that violates the Constitution.
Aside from proximity, what is being curtailed? That’s what’s frustrating about folks who make the complaint about rights with regards to taking minimal measures to ensure public health during a dangerous pandemic. Government, surprisingly enough, is the one entity doing the least amount of suppression of individual rights.
Tricky. Remember the major principle of our Constitutional Rights is not that it has to be listed to exist, but, exactly the opposite, it exists unless very specifically denied. The right not to wear a mask doesn’t need to be in the Constitution. It is a right, until the law takes it away.
One question here is: is it sufficient for state legislatures to give their Governors power to issue a non-specified decree, or must the legislature directly specify that the Governor can mandate mask use? Non-specific laws are of some constitutional concern.
So far, courts are upholding mask-use rules, but at least the issue is being taken up by the courts, and so we still benefit from that measure of protection.
[quote=“kanicbird, post:3, topic:914314, full:true”]
As for the virus, what happens if one side sticks to a set of rules in a war and the other side doesn’t? We see in the American Revolution where the British played by the rules, had red uniforms, stood in easy to shoot at lines, while the rebels hid behind bushes, trees and airplanes and worn clothes more likely to help them hide.[/quote]
This is the popular myth many of us were taught in school but it isn’t true. The British army managed to exert their will upon a significant chunk of the world with their big red coats, standing in line, and playing by the rules. The truth is that George Washington and others didn’t actually respect the minute men too much. The colonists won, in part, with the help of men like Von Steuben who turned a bunch of colonial farmers into real soldiers who stood in line and didn’t scattered when the enemy fired back.
There will always be scenarios that constitutions cannot foresee. It is ultimately up to the people to have and maintain constitutional principles. Constitutions are pieces parchment or paper; they are not the force of law. Democracies and constitutions have a 2,500 year history. Constitutions have failed. Democracies and Republics have failed.
I’m not sure how 'murricans came to believe that one of the provisions in the Bill of Rights is “you’re not the boss of me.”
States have plenary police power, unless such a statute conflicts with one of the rights provided in the Constitution and incorporated by the 14th Amendment to apply against the States. States can forbid the wearing of purple cloth if they see fit; States can require the wearing of purple cloth.
Even the rights listed in the First Amendment, such as the right to peaceably assemble, are not absolute. They sometimes must be balanced against other legitimate rationales a State might have, including protecting public safety. Constitutional law is largely a study of the cases that delineate those balancing tests in various areas.
The government could say that about any external threat. Surely terrorists don’t read (respect) the Constitution. How can the Constitution survive after a 9/11 event when we are dealing with a force who doesn’t respect those values?
This is not a quarantine. A quarantine is separating known sick people from others so as not to spread the infection. This is mandating that healthy people stay isolated so that they don’t get sick and then spread the infection. That is of such a different degree that makes the comparison inapt. What is to stop its application to the seasonal flu? Simply the magnitude of it?
The framers knew of the Black Death in Europe and of pandemics in general. They did not put a pandemic exception into the Constitution, even when it knew how to put exceptions in other areas (e.g. suspension of habeas corpus).
Further, the recent BLM protesters have put an extra spin on it. The governments all over the country have made value judgments that the previous rules did not apply to BLM protests because those political messages were specifically good enough because those views aligned with their own.
That is specifically the evil that the Constitution sought to protect. Free assembly, but only if a government approved assembly. It matters not that in this case if you believe that BLM protests are a positive good because you’ve set the precedent that the government has the power to pick good and bad in the area of constitutional rights and forbid the “bad” because the next time you may be on the “bad” side and get silenced.
That one has been taken away by legislation. The Supreme Court could, some day, determine that it is a right that cannot be taken away, like burning the flag. But for now, the legislation stands, and we gotter cover ourselves up.
Unless it has been taken away by legislation. The courts have ruled that legislation granting Governors and Mayors emergency powers are sufficient to allow them to mandate masks, and so masks are mandatory, and this does not violate the constitution.
My only question was, how “general” can an emergency power law be? Obviously, “The governor can do whatever he deems necessary” would not pass constitutional muster.
