Public safety is > personal liberty because you could be infected by someone else and, in turn, infect someone else? Do you really believe that?
Of course I do, within reason. And it’s been this way since the beginning of the nation - states have always had “police powers” to override individual liberties in the name of public health and safety. There’s limits to them, but this is basic fact of American life and government since people wore tricorner hats.
Here, the exercise of individual liberties can threaten to cause extensive damage to other people, health care resources, and the economy. This is a danger that “market forces” can’t mitigate or fix.
So your personal liberty needs to be temporarily suspended because someone else could violate your personal liberty by infecting you? I don’t follow the circular logic here.
Where is it stated or what precedent supports the idea that state police power supersedes incorporated amendments in the BoR?
This is one heck of a precedent. If you’re not infected you cannot infect another person nor can you cause extensive damage to other people in this case.
Healthcare resources > individual liberty?
I’m sure glad we saved the economy. It’s looking real strong right now.
Of course not, but Trump et al can do it, though…
Quarantine: a state, period, or place of isolation in which people or animals that have arrived from elsewhere or been exposed to infectious or contagious disease are placed.
We aren’t under quarantine. We are under house arrest.
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No - your liberty would be suspended to prevent you from being a part of transmission of a disease that is a threat to public health, economy, etc. Your exercise of liberty to go out and about might cause damage to someone or an important resource for which this is no adequate remedy to the harmed person/resource (they can’t sue you, obviously). So, in the name of helping prevent that harm, your liberty is temporarily curtailed.
Here is a good rundown. Importantly, a state’s exercise of a police power is still subject to constitutional limits, but laws of general applicability that serve a legitimate public purpose are not violations under the BOR:
It is, but it is one set at the founding of the country. Can it be abused? Sure. But not every exercise of it is an abuse.
Sometimes, yes, as a matter of public emergency. There’s a court case from 1824 that details why this is:
In 1824, the Supreme Court observed in Gibbons v. Ogden that sovereign state authority includes the authority to enact “quarantine laws” and “health laws of every description.”
Think of it like this: Just as the president and the federal government act at the peak of their powers when national security is threatened, America’s governors are often at the peak of their power when public health is at stake.
You’ll have to take that up with imbecile in WH (I know you’re not a Trump guy). But it isn’t always about saving - it’s often a choice between a bad outcome and a worse outcome, and laws like this are to prevent something worse.
If you have the virus, and are asymptomatic, how to we know are a “danger” to the public? What if the virus never comes to fruition? Do we just stay locked up forever?
This is all complete bullshit. Re-open everything and let fully grown adults handle their lives. We do NOT need a government based on half-truths telling us what we can/cannot do.
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All you did was re-word what I wrote to make it sound better.
So might driving a car. 30k+ dead/year with no recourse to sue and 2M in need of medical resources.
So might having the flu or any communicable disease. Last year an estimated 61k died and 800k were hospitalized for the flu.
So might owning a firearm.
There are a lot of examples where exercising individual liberty might harm persons/resources; yet, in this case we’re supposed to suspend liberty “temporarily”. Except for all of the exceptions like when I go buy beer because that’s deemed “essential”.
Dangerous reasoning, my friend.
Appreciate it. I’ll give it a read. I’ve asked for something like this for a while now.
We aren’t under quarantine, though. People that have tested positive are under quarantine. The rest of us are under blanket stay home orders that vary by state (some of which include a limitation on gatherings on private property). It will be interesting to see how the courts will rule on these cases when they inevitably go to court.
It’s an interesting piece, but it doesn’t really address the concerns that I have. For example,
Setting aside the fact that he never returns to churches… He says that they (churches) won’t special protection under the Free Exercise Clause. I’m not sure that’s true for the simple fact(s) that a) free exercise of religion is specifically protected under the first as opposed to the business mentioned and b) “essential” businesses have been allowed to remain open with gatherings well over the thresholds arbitrarily determined by state Governors with religious organizations, specifically protected by the 1st, being deemed non-essential. I have a hard time seeing how that will fly when liquor stores, for example, remain open.
I agree bans on public gatherings, generally, probably hold muster, but I don’t think bans, fines, and/or arrests during protests, another protected activity under the first, will hold up in court.
The portion on quarantine law is interesting and scary (imo). That said, again, most people are not being quarantined in their homes. We are under stay-home orders subject to fines/jail if we leave our home for an unauthorized purpose whether we are sick or not. That, imo, is very different than quarantining a sick individual.
I’m not sure how the Lucas v. South Carolina Coastal Council translates to the closure of most businesses. A business, unlike land, generally, does not recover value as soon as a prohibition is lifted. That would be fairly easy to demonstrate.
Of course, there are other issues as well.
It’s true they won’t because of the neutral applicability rule. The public policy issue is crowds over a certain number - and churches are not being singled out, the policy is one of neutral applicability to all crowds over 10 (or whatever). In that instance, rights aren’t being violated - because the denial of your right to go to the church is incidental to a larger, valid public policy.
But its not being neutrally applied. It only applies to “non-essential” businesses and the Govenor(s) gets to decide what is essential/non-essential. Churches have been deemed non-essential at least in Maryland, but I believe pretty much every state with a stay-home order has done this.
In fact, you don’t even have to reach the arbitrary limit. Going to certain places is deemed non-essential and thus a misdemeanor ($5k/1 year jail in MD), but going to places deemed essential is okay. It’s not neutral as the Governor has sole discretion to decide was is or isn’t essential.
I can go to Wal-Mart, a grocery store, or a liquor store, but I can’t go to church or a barber shop, for example. That’s not neutral at all.
It is different, but does it matter? The point is governors have wide grants of power to do things when public health is in danger, and courts aren’t going to come in and start slicing and dicing when they think a policy could have been “better” - that’s not what courts do on this - courts are going to defer and not step into the realm of a state executive exercising emergency powers unless there is a gross violation of the law.
One party is sick and can spread an infection putting people at risk. The other party is not sick and cannot spread an infection and is only at risk of becoming infected. I would say the difference is pretty important.
We’ll see, I think there will be a number of cases stemming from various states including mine.
Yeah, it is - “neutral applicability” doesnt mean “treating everybody and everything the exact same way”. It means the policy is neutral in the sense it isn’t targeting someone without a rational justification. Essential businesses are categorized by a defined need - food, shelter, medicine, etc. Churches aren’t part of it, in the same way as sporting events or trade shows at hotels aren’t - they are large crowds (bad) in pursuit of something not necessary to sustain.
Disagree with that policy rationale? Ok, that’s fine - but that isnt the same thing as a denial of rights. Churches aren’t being singled out unfairly, they are being treated neutrally among gatherings of a bunch of people over a certain amount.
So, in acting in his/her emergency powers, a governor can only act after the damage is done (a person is already sick) but his/her hands are tied to prevent the damage from occurring?
What’s the rational justification for allowing unlimited people in a liquor store, but not a barbershop?
What’s the rational justification for allowing unlimited people in a non-grocery retailer, but not on a boat in the harbor?
Here’s a good one, what’s the justification for fining/jailing people for partaking in a “non-essential” activity while letting convicted criminals out of state prison?
Ya, I don’t think the religious agree with the above… Folks, chuck in non-essential, but that 12 pack of Coors Light is vital.
I’m not even a particularly religious person and I can see churches, especially on Easter, were being singled out.
No. There are plenty of things they can do to prevent damages from occurring that don’t strip the non-sick, in this case, of their rights in essences to protect them.
You’re making policy arguments, not legal ones. Maybe it’s dumb to have liquor stores open as part of “food”. Maybe you should be able to access a boat. The prison one is easy - keeping them puts a captive population at risk, and ain’t nobody going to jail when they’re letting peoplw out.
What you’re missing is these ideas you don’t think make good sense are not denials of rights. Maybe some are dumb. Maybe they are 50/50. That’s all policy stuff. Not rights stuff.
The standard isn’t “did a governor get the policy right in each of these instances”? It’s “did the governor violate someone’s recognized rights by unfairly singling them out without a justification”?
Courts don’t sit to nitpick every policy decision a governor makes (or other state action) to make sure they are always the “best”. Courts police the boundaries - in this case, of a very wide grant of powers - and start from a place of deference to the decisions made.[quote=“anon50325502, post:599, topic:265961”]
Ya, I don’t think the religious agree with the above… Folks, chuck in non-essential, but that 12 pack of Coors Light is vital.
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What is “essential” or not is a policy choice.
Like what?
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If neutral application means it isn’t targeting someone without rational justification and rational justification is policy argument then said policy arguments matters when determining the legal ramification of the orders. How can they not?
The policy of 10 or more people gathering being prohibited directly violates the first amendment in several ways. It violates peaceful assembly. It violated the free exercise of religion. It violates the right to protest. Many states are postponing trials, which is arguably a violation of the 6th. I think $5k/Jail is excessive, but that’s debatable.
It doesn’t matter if it’s unlikely. It matters that it exists in the first place. They’ll just go to jail once this is over. Going to jail for leaving your house because you might get infected by someone else. That’s nuts. It would be like giving someone a DUI before they take a drink.
Asking people to social distance, wear a mask, and/or telework if possible. Closing non-essential businesses within their legal authority. Provide wide-spread testing. Invest in R&D on a vaccine. Provide essential business protective equipment, disinfectant, hand sanitizer, etc…
Not fining people if they leave their house to go to the park because someone might get them sick…
“Rational” doesn’t mean “I think it’s good policy” - “rational” means “is there some reason other than bad faith, caprice, or discrimination driving the decision”. You’re balled up in the idea that rational means it makes sense to you. That’s not the test. I think having liquor stores remain open doesn’t make a ton of sense, but someone else could say, well, it’s part of the larger category of food, and we’re being overinclusive for ease of administering the rule and fairness - since groceries often sell booze too, and we’re not going to restrict alcohol sales there …and that’s a rational reason, too.
Everyone everywhere can poke holes in policy - those holes do not represent “irrationality” in a legal test.
None of these are being violated, because they are subject to a rule of neutral application.
Examples abound. You can’t exercise your 1A rights to talk as loud as you want while sitting in the court as a spectator, can you? Your church can’t refuse to pay FICA taxes on its employees even if it believed such taxes to be immoral, can it? The world is filled with rules that “violate” your rights under your explanation that don’t at all.
And, when the policy comes from an emergency, that’s when a governor has the most deference to take such actions, even if there is a question of infringement.
That isn’t a policy - its a hope and a wish. You don’t defeat pandemic on hopes and wishes. States have police powers precisely to deal with emergencies that can’t be abated by hopes and wishes.
We know this from experience - a number of governors started by “suggesting” social distancing. Then guess what? Didn’t work, so they had to require it at the pain of penalty.
Ya, here’s the reason, liquor sales are taxed 3% higher than all other goods in Maryland and we do not sell alcohol in grocery stores here.
I don’t agree with your interpretation of neutral application. There’s nothing neutral about the essential/non-essential buckets, so to speak. The 10 max rule is only being applied to one bucket. That’s not neutral.
No, but by doing so you’re demonstrably violating another’s right to a trial by jury. You are not violating another persons rights by leaving your house if you are not sick.
This doesn’t violate the first.
In general, these violations are due to the fact that the action actually violates someone else’s rights in some way. Again, leaving your house to go to the park or fish or boat or etc… while you are not sick does not violate anyone else’s rights. It only opens you up to having your rights be violated (some that is sick infecting you). There’s a big difference between your examples and this situation.
What constitutes an emergency is subjective.
I’m not going to apologize for believing the Governor works for his constitutes as opposed to being King of Maryland. People do dumb things all the time. It isn’t the government’s responsibility to force people to do the right thing, many of whom are already doing the right thing, through the pain of penalty.