When Amateurs Believe They Are Qualified to Interpret the Constitution

The case that has generated a legion of uneducated laymen to tell us that the lockdown and safe distancing rules absolutely violate the First Amendment free assembly guarantees is Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). The case had absolutely nothing to do with the First Amendment; rather it addressed whether in a national emergency (the Civil War), the federal government could try American citizens in military courts. Abraham Lincoln dealt with Union dissenters by declaring martial law and used that emergency declaration to try such dissenters in military courts. That was the only issue before the court.

Justice David Davis delivered the majority opinion stating that "martial rule can never exist when the courts are open" and confined martial law to areas of "military operations, where war really prevails," adding the possibility when it was a necessity to provide a substitute for a civil authority that had been overthrown. Sorry Abe, back to civilian courts for those dissenters. That case truly does not stand for anything else.

However, some amateur self-proclaimed “experts” in jurisprudence,  amped up with the help of the conspiracy theorists of America, believe that the government cannot order lockdowns, medical masks, safe distancing requirements – which these amateurs believe gives them a First-Amendment-supported blank check to do whatever they please with whomever they choose unless such actions violate legislatively passed criminal statutes.

Here’s the out-of-context, completely inapplicable phrase, from Milligan, they rest their inane assault on reasonable and necessary pandemic preventative measures, exercised by a governmental chief executive (president, governor, mayor, etc.) under duly passed legislative authority:  “Neither the legislature nor any executive or judicial officer may disregard the provisions of the constitution in case of emergency …” In English, the court basically held that neither the executive branch nor Congress could usurp the jurisdiction of the judicial branch. You can find blogs, twitter posts and articles that treat the above quoted phrase as the definitive ban on just about every lockdown or safe distancing ruling issued by any lawful government authority.  It absolutely isn’t.

Like this one, pulled off the Web, that states: “ANYONE who declares the suspension of constitutionally guaranteed rights (to freely travel, peacefully assemble, earn a living, freely worship, etc.) and or attempts to enforce such suspension within 50 independent, sovereign, continental United States of America is making war against our constitution(s), and therefore, we the people. They violate their constitutional oath and, thus, immediately forfeit their office and authority and their proclamations may be disregarded with impunity, and that means ANYONE; even the governor or the President.” Those who feel limited believe dissertations like this are correct, and they are encouraged by a President who tells them to take matters into their own hands and “LIBERATE!” There is almost nothing in the above post that is correct.

Just what we need are individuals, making their own interpretations of the law and believing that they can reasonably act based on their beliefs… without asking a court… completely on their own.  Even Donald Trump can’t do that, although he occasionally thinks he can. And if they can just gather similarly inclined conspiracy theorists to carry enough signs to petition their state government seat – while others do not want to leave homes and incur health risks to show their support for continued restrictions – isn’t that enough to prove they are right? Who needs a court when a mob will do just fine?!

Anyone who has ever walked through a TSA line over a domestic flight knows restrictions on travel exist. March down a city street burning torches screaming to murder blacks and other minorities, a clear incitement to riot, and you know there is no absolute right to assemble in all circumstances. Add trespass laws and the notion that sitting down and blocking all street access to government buildings, impeding traffic in all directions, isn’t legal. Talk to a corner narcotics dealer, and he or she knows they don’t have right to make that living. A grocery cannot sell meat or produce without adhering to sanitation rules. And that’s without a medical emergency that threatens the lives of hundreds of thousands, if not millions, of Americans.

Clearly, the Trump administration is not particularly friendly to blue states trying to contain COVID-19 through stringent safe distancing requirements. He wants that pre-election stock market to soar no matter the consequences. On April 25, US Attorney General William Barr circulated this statement through the Department of Justice: “If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court." Note that even Barr knows he needs court clarification as he seeks to assert authority he may not be constitutionally authorized to exert. I’m sure he could muster a mob if he wanted to.

There are no applicable cases that prevent states or the federal government from all sorts of emergency measures, from detention to mandating specific health practices. Clearly, nothing to prevent lockdowns and safe distancing within justifiable limits. States have long since held the ability, subject to a due process review for reasonableness with lots of deference to the issuing authority, to declare statewide emergencies that restrict the free movement of their residents and impose safety regulations that apply to everyone. Under the Commerce clause of the US Constitution, the federal government appears, likewise, to have this authority. That due process review is the safety valve, and anyone is free to petition a properly designated court for a ruling.

For all those arrogant self-declared and self-righteous constitutional experts, they probably should consider this very recent CV-19 case: “The U.S. Supreme Court has refused to block enforcement of a Pennsylvania executive order that shuts down businesses if they are not ‘life-sustaining.’… In a May 6 order, the court declined to stay Pennsylvania Gov. Tom Wolf’s March 19 order, report SCOTUSblog and the Legal Intelligencer.

“A group of businesses had contended that Wolf’s order violated their right to have their property taken from them without due process of law, their right not to have their property taken without just compensation, their right to judicial review, their right to equal protection, and their right to free speech and assembly.” Journal of the American Bar Assn, May 7^th. The court effectively shot down every constitutional argument against such duly authorized lockdowns. A well-armed posse, with indignation and legal ignorance as their real justification, is as un-American as it gets.

The issue is still undergoing refinement in the courts focusing on freedom of religion. There is another case working its way up the appellate ladder (Temple Baptist Church vs City of Greenville in the Federal District Court in Northern Mississippi), dealing with a church’s right to ignore anti-gathering orders, that might temper the above. AG William Barr directed US Department of Justice to file a brief in support of the church, claiming that even in an emergency, governments cannot impose any restrictions on religious gatherings.

However, I suspect that as long as (i) the anti-gathering order was not discriminatory towards religious meetings/services, (ii) there is a local legal basis for the issuance of such orders (e.g., an ordinance, statute or state constitution), (iii) the restrictions were reasonable and a temporary response to a bona fide emergency, and (iv) alternative safe practices exist, such order would likewise apply to religious gatherings. The issue, of course, is not just the danger such gatherings pose to attendees, many of whom truly believe God will protect them, but to those they see and meet in the community later… and to the children they bring with them who cannot make an informed choice.

What we do not get to do is make up what we think the law should be and ignore the relevant rules that are meant to protect more than the individual seeking relief from these safety requirements. We live in a society with a mixture of humanity around us. What one individual does could easily infect and kill others. Selfishness is not a substitute for individual rights and responsibilities.

            I’m Peter Dekom, and the rise of self-righteous and unsubstantiated conspiracy theories has begun to decimate a notion of a nation of laws.