Page 14 - May 2020

Public safety or constitutional crisis?
The last eight weeks have left our city and nation in crisis. The experts tell us that COVID-19 is a worldwide pandemic. We are told by both
the medical and scientific community and
our political leaders that unless we control the spread of the virus, certain death and illness will come.
Like all good citizens, we believe and
do our part. Most citizens have followed the rules of social distancing and have complied with staying at home and minimizing contact. The first
responders, especially the police, have also done their part and are at the front lines of this battle. Like all events that impact public safety, the police stand watch and continue to do what they are charged to do: serve and protect. But with this comes serious constitutional issues with respect to exactly how far the state and federal government can enforce these orders.
There are significant constitutional issues that arise when we begin limiting fundamental rights. The framers of our demo- cratic system knew this. They believed that some rights are so fundamental that the government cannot abridge them. They believed in this concept to such a degree that they put pen to paper and spelled them out in the Bill of Rights. These amend- ments are meant to supplement or correct the original docu- ment of the U.S. Constitution.
The Constitution itself is a fairly simple document. It con- sists of seven articles which provide us with a manual as to how to run the government. It allows for a president with powers, a congress with two bodies and an independent judiciary. The problem that the founders had was the skepticism of the indi- vidual states to cede so much power to a distant national gov- ernment. The states had played that game before with a faroff king, and after throwing some tea into a harbor, a very cold win- ter in Valley Forge and some help from the French, they were able to rid themselves of being governed by that king. Once the Constitution itself was composed, the states demanded that certain rights be delineated.
The Bill of Rights, if you read them, are negative rights. This means that they do not give rights; they prohibit the abridge- ment of rights. The framers did not believe that our rights came from a king or an autocratic parliament; they believed our rights are unalienable. Unalienable rights come not from the laws or practices of a government, but they are universal and come from the mere fact of being a citizen of the United States. The Declaration of Independence upon which our Constitution is based states that “we hold these truths to be self-evident, that all men are created equal, that they are endowed by their cre- ator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” The majority of the 13 states, filled with strongly independent and principled people, refused to consent to be governed unless their rights were guar- anteed — and thus the Bill of Rights was added to the United States Constitution.
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But does there come a time when our rights should and need to be abridged and constricted for the better good? That is the question that many citizens are asking in these trou- bled times. This is not new. In 1863, President Lincoln, an ardent supporter of constitutional power, suspend- ed the writ of habeas corpus in the middle of the Civil War. This allowed the military commanders to essen- tially arrest and imprison any person who was deemed a threat to military operations. Essentially, American citi- zens could be arrested and held without charges and without being brought before a judge. This is considered a landmark moment in constitutional law. However, due to the national emergency, the suspension of a person’s right to go before a judge was considered acceptable for the greater good of a di-
vided nation.
During World War I, Congress passed the Espionage and Se-
dition Acts, which prohibited many forms of speech, including “any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.” That should give you pause, as it clearly prohibits freedom of speech on fundamental topics like the legitimacy of a war. These statutes were actually held valid at the time by the U.S. Supreme Court, although later opinions have questioned their constitutional legality.
The point is, there is precedent for the suspension of our rights during a national crisis. Is this such a crisis? Could the federal and state authorities suspend the right to free speech and assembly? Allow for warrantless arrests without probable cause? Prohibit religious services? On one side, these are funda- mental rights that our framers would dust off their muskets to defend. On the other side, we are in a national crisis where the medical and scientific community is telling us the only way to stop the spread is to socially distance and impose lockdown or- ders. Our framers were so insulted by the British ordering that their soldiers be quartered in the colonist homes without con- sent that they devoted an entire amendment prohibiting it. Is this overreach, or is it responsible government?
We have entered the foothills of the unknown at this point. These concepts of rights and freedom can clearly be abridged under certain circumstances. There is no doubt of the need to keep the country safe and to protect the nation as a whole. However, the instinct to revolt against such impositions is also woven into the fabric of our DNA. Like our forefathers, we do not react well to being ordered how to live our lives. We believe in our personal freedoms and take extreme exception to being told by a mayor, governor or president what to do and how to do it. How this will play out and what history will say of these times will be interesting.
I will leave you with the words of Supreme Court Justice Louis Brandeis in a landmark First Amendment case. Brandeis stated that “those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.” Interesting words, indeed. Every- body be safe.
TIM GRACE