Quarantines... bans on public meetings... what are your Constitutional rights?


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As we rush into full Coronavirus SHUT DOWN, will anyone stop and ask, WHAT ARE OUR RIGHTS? What can the government do and not do -- even in a declared "health emergency"?

This is one of the greatest challenges we face as America responds to the Chinese Coronavirus. China has created the model -- but it is totalitarian model. China effectively shut down large sectors of its society -- jobs, travel. Banned. It has created almost an expectation among the elites that we must follow the same model.

Thus far, for the most part, the quarantines and bans have been voluntary. For example, the NBA is a private organization that made a decision to stop holding games and the NCAA is also a private organization that decided to hold games with no fans in attendance. But the quarantines and bans are now beginning to be executed through local and state governments.

But are quarantines and bans constitutional?

+ + Quarantines

 Judge Andrew Napolitano offers some principles on quarantines.

1. "Freedom is the default position." He says: "These rights preexisted the government. Their source is our humanity. Government does not grant these rights. Rather, its primary purpose – as stated in the Declaration of Independence, its sole purpose – is to protect these rights."

2. On quarantines in general"Can the [federal] government quarantine people without proof of contagion and imminent assault? The short answer is no." Not without due process. "Than means a trial for every person confined," says Napolitano. Thus the burden of proof is on the government, and the rights of individuals must be addressed

3. What about a quarantine of an entire area (neighborhood, postal code, city)? Napolitano says NO:

"A government-ordered quarantine of all persons in a city block or a postal ZIP code or a telephone area code would be an egregious violation of due process, both substantive and procedural. Substantively, no government in America has the lawful power to curtail natural rights by decree.

"Procedurally, notwithstanding the fear of disease contagion, the states and feds may only quarantine those who are actively contagious and will infect others imminently. And it must present evidence of both at a trial at which it bears the burden of proof."

This is why the new Florida restrictions on visitors to nursing homes were carefully worded, although it was interpreted by the media as a ban on visitors to nursing homes.

+ + Bans on gatherings

Local and state governments are imposing bans on "large" gatherings. For example, the Governor of Washington State, by fiat, banned all gatherings of 250 or more in several counties:

"I hereby prohibit the following activities...: Gatherings of 250 people or more for social, spiritual and recreational activities including, but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities."

Here is an answer in a forum thread. We can't vouch for the accuracy of the constitutional argument but it is consistent with what we've heard:

It is well-established in constitutional law that no rights guaranteed by the Constitution are absolute. Your right to assemble may be limited by the government, as long as the law so restricting you passes "strict scrutiny". For that test to be passed, the government has to show that it is necessary to a "compelling state interest", it is "narrowly tailored" to achieving this interest, and uses the "least restrictive means" to do so. The courts will simply accept the premise that the government has a compelling interest in preventing the spread of a serious disease. Narrow tailoring and least-restrictive are not quite so clear. You could maybe take the position that the prohibition should have an exception for people who are "certifiably not exposed" (a narrower restriction), but that is medical fantasy.

Perhaps someone can devise a medically-sound narrower restriction, and that would come out in the lawsuit. Alternatively (this is where the lawyers and not the doctors would get involved), it is possible that the assembly-ban is completely ineffective and therefore it does not accomplish the intended end. But it is reasonable to think that an assembly-ban will have some positive effect w.r.t. the spread of the disease. So I doubt that the courts will find that the present Washington state assembly-ban fails strict scrutiny (I don't know about other bans).

It seems gathering bans can be imposed as long as they meet the "compelling state interest," attempt to use the "least restrictive means," and are not in any way targeted against a certain people or group of people. So you couldn't ban churches but allow concerts. And we assume a ban like the one in Washington State wouldn't hold up without a strict, short-term, time limit.

So where does that leave us? It seems our government is trying to follow the effect of the Chinese "shut down" model without openly imposing bans and quarantines, especially at the federal level. When asked on directly on Fox & Friends (3/12) whether the U.S. should impose China-like quarantines, the Vice President was careful to avoid the question and steer his answer to the government's efforts in "supporting" state and local response and CDC's "strong recommendations":

 


Showing 5 reactions

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  • Virginia Turner
    commented 2020-03-13 00:41:02 -0400 · Flag
    The Coronovirus was the perfect opportunity to try out establishing a ban on gatherings, to evaluate citizens compliance, without questions, and to grade the level of acceptance. It’s not just ridiculous, it’s down-right frightening. We have abdicated our rights away, bit by bit. In this country with our medical resources, communication systems, etc., there is a fallacy that bans and quarantines should be so quickly enacted. I would say the Aids epidemic was much worse than this, yet did government impose quarantines and bans against gatherings? We will discover, in future, just what the real purpose of these scare tactics accomplished. I can see the reasoning of the Presidents short term ban on travelers from outside our country; to prevent anymore accidental entries of infected persons; to give us a chance to get a handle/control over this virus.
  • Lisa Grimes
    commented 2020-03-13 00:12:42 -0400
    So far, everything that has needed to be done, has been done, and our President has been on top of this…from the earliest days. Following ALL of the advice from the Medical Experts, and structuring the upcoming needs…with common sense management, as well as advice that is being shared with ALL Americans, complete with clear explanations, and suggestions, etc.

    ALL of which, the Democrats have cried against ALL of the actions taken, ridiculing the actions that President Trump has taken…claiming that all of these steps weren’t needed, or that President Trump has over-blown this as a bigger problem that it actually is, and NOW…they claim that he’s acted too late, complete with declaring that he’s not doing enough. THEN, there Maxine Waters, claims that “Trump needs to shut his mouth about coronavirus”…that “he’s a known liar” and “he doesn’t believe in science” so…he needs to “shut his mouth”. They’ve even screamed against…any form of Border closure, and stating that the Border needs to be open.

    WHICH IS IT, that the Democrat’s don’t like or want? Did he act too fast, because the Democrats want more people ill or at risk? Is this why the attempt to over-throw President Trump’s immigration orders? Now they’re trying to block, as in remove, the President’s efforts to limit entrance to America….for the next 14 days. This makes me wonder…what exactly…is it that the Democrats want to happen. NONE of their actions has instilled any confidence for Americans, let alone would their efforts slow down or even block further influx of this disease to America.
  • Joe Smith
    commented 2020-03-12 19:40:24 -0400
    Wanda, you fall back to the Supreme Court saying “you can’t say fire” in a crowded theater. Um yes you can! First off the quote is wrong, “its you can’t falsely yell fire”, Schneck vs US 1919. This case was about limiting your speech against the government. What you would be held responsible for if you would have shouted that, is the chaos and commotion that interfered with others rights. Your rights are given, you have them from birht and only you give them up to the government.
  • Wanda Whitney
    commented 2020-03-12 19:13:10 -0400
    I don’t think it goes against the US Constitution. I fall back on the Supreme Court when it put in a statement that “you can’t say ‘fire’ in a crowded theater”. True, the words in most cases has no fault, but in a crowded theater you could create a disaster. Therefore, if there is a bad virus, such as COVID-19, and one of the best ways to stop it is to temporarily ban gatherings, then it meets that test.
  • thortonhsnurd
    followed this page 2020-03-12 18:54:51 -0400