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Requiring People to Shelter In Place Is NOT Unconstitutional–Here’s Why

“Liberty gives you the right to act the fool if you so choose; it does not, however, give you the right to do so at the expense of others.” -A sentence I jotted in my Constitutional Law class notes one day in 2009.

Because so many of us are focused on the ill-advised and outright dangerous protest against Michigan’s “stay home, stay safe” order that occurred in Lansing today, it seems like a good time for a quick constitutional law lesson. Too many people seem to rely on a soundbite version of the Constitution to decide how they, personally, think it should be interpreted. The words “liberty” and “freedom” are casually tossed about, not as a shield of protection but as a weapon to excuse the inexcusable.

The question of whether a state or local government, when responding to an emergency like a natural disaster, an epidemic, or war, may take extraordinary measures that temporarily curtail many of the freedoms—like those of movement/travel and assembly that are most at issue right now—that we as Americans are accustomed to is not a new one. In fact, quite the contrary is true.

Again and again, the courts have addressed the issue and recognized that, yes, in an emergency the states and/or their subdivisions may take actions that in normal circumstances would not be allowed. Think back to, say, World War II. Would it be acceptable for an individual living in a coastal city to leave all of his windows uncovered and turn on every light in his house during an air raid blackout? Or would you expect such a person to be punished? The Supreme Court has, in fact, repeatedly rejected the idea that one person’s “liberty” trumps the safety and well-being of the community. In Jacobson v. Massachusetts, a 1905 case in which the Court upheld a compulsory smallpox vaccination law, Justice John Marshall Harlan explained in his opinion for the Court that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.

There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. A society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” Jacobson v. Massachusetts, 197 US 11, 26 (1905).

Justice Harlan’s words in Jacobson echoed the Court’s decision from 15 years earlier in Crowley v. Christensen, in which the Court stated that “the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not an unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law.” Crowley v. Christensen, 137 US 86, 89–90 (1890). Later decisions of the Court have not deviated from these commonsense rulings: “There can be little doubt that in the exercise of its police power a State may confine individuals solely to protect society from the dangers of significant antisocial acts or communicable disease.” O’Connor v Donaldson, 422 US 563, 582–583 (1975).

The next time you hear someone complaining that our “freedom” and “liberty” are being “stolen” or that our governor or another is somehow a modern incarnation of a murderous fascist dictator for taking action to protect *all* of us, please know: they’re wrong. Is all of this inconvenient? Yes. Is it economically devastating? Undoubtedly. But is it unconstitutional? Under current circumstances, absolutely not.

Our governor, and (most) others, recognize a simple but inescapable truth: you can recover from economic ruin, but you can’t bring back the dead. Their actions, informed by experts in communicable disease and public health, are based on the fundamental, core principle that animates our Constitution: the well-being of “We the People.”

So please, buck up. Stay home, stay safe, and stay healthy. The better we do those three things right now, the sooner “stay at home” won’t be necessary.

ED: This article was copied from FaceBook.  It was posted by Kristina Maritczak who credited her friend Josh Miller, a lawyer, for writing it.

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Posted by on April 19, 2020. Filed under COMMENTARY/OPINION. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry
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6 Responses to Requiring People to Shelter In Place Is NOT Unconstitutional–Here’s Why

  1. Glenn Geist Reply

    April 19, 2020 at 1:53 pm


  2. Tall Stacey Reply

    April 19, 2020 at 4:26 pm

    Nicely done.

    There is however one more, simpler, easier to find example: “Provide for the common defense, promote the general welfare”.

    As in: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

    For those who may not recognize it, this is the Preamble to the United States Constitution which clearly communicates the intentions of the framers and the purpose of the document. While it is not itself law, it clearly prescribes the purpose of American law.

    These shelter in place directives are simply to provide for the common defense against the the virus and to provide for the general welfare of the people. All the people.

  3. Bill Formby Reply

    April 20, 2020 at 9:43 am

    Actually, if we had the resources or like a former congressman said one time let them just lie on the side of the road and die, it might not be a bad idea to let the fools go out and kill themselves. Sort of a way of thinning the herd , so to speak. Just make those who are not staying in wear a bright, orange, MAGA shirt or something so those of us with half a brain can stay away from them. Of course Trump would probably require them to vote before they actually did run out into the big dangerous world. No Children though. They would have to be fostered to families with an I>Q> of at least 100.

    *** Hey, I have a great idea. Since Trump is so confident about this “Turn’em loose idea” I think he should kick it off with a huge rally in Indiana or Ohio or Pennsylvania during which he should personally shake the hand of every attendee. That would surely show his confidence in his policy. Even more so if Jared, Ivanka, Eric, and Don, Jr, were there right beside him.

  4. Ugh Reply

    April 22, 2020 at 10:15 pm

    The main point I will eventually make will be essentially that court rulings are a poor compass for determining actual Constitutionality. However, I’d first like to address some of the cases cited in the article.
    The author, Josh Miller, who is claimed to be a lawyer by the original poster of this, cites O’Connor v Donaldson as his conclusion and “cap” on his argument that the courts have not deviated from rulings that the government has the right to suspend rights as they deem necessary. The use case is misleading at best, and intentionally dishonest at worst. I am not a lawyer, but after study of this case, anyone with the barest understanding can see how this is taken out of context and used, in the way the author used it, to mislead the reader and bend it to mean what he wants it to mean. The quoted passage is ““There can be little doubt that in the exercise of its police power a State may confine individuals solely to protect society from the dangers of significant antisocial acts or communicable disease.” Sounds like the court ruled in favor of confining people in cases significant antisocial acts or if there is a communicable disease involved. But that is without question, not the meaning. First, this case found in favor of Donaldson, who sued an institution for confining him against his will for years. He won the case and was awarded damages. The institution was found to have deprived him of his freedom and his rights. Here is the summary of the case according to law.jrank.org (I can list more sources of this summary if you require) “The state cannot constitutionally confine a non-dangerous person who is capable of surviving safely in freedom by themselves or with the help of willing and responsible family members or friends.” The ruling states later as an explanation the passage that the article cites. The intent is to say that there is little doubt that in exercising its police power, a state may only confine an individual to protect society from the individual causing harm (antisocial acts) or if the individual has a communicable disease. This case is about, and only about, confining an individual. And the individual being confined won and was found to have been unconstitutionally confined. In fact, if anything, this case would support the action of confining actual sick individuals, not confining any healthy individuals. That is the literal ruling and the exact opposite of what the author is attempting to lead readers to believe. A healthy individual was unconstitutionally confined. The author, the supposed lawyer friend of the original poster, is either a liar or a terrible lawyer.
    In Crowley v Christensen in 1890, the court ruled that “The sale of spiritous and intoxicating liquors by retail and in small quantities may be regulated, or may be absolutely prohibited, by state legislation without violating the Constitution.” In their explanation, the court did use the words cited. But again, it was in the context of alcohol sales. The excerpt is taken out of context and used as evidence that mass house-arrest is Constitutional. While the words are what they are, I, personally, am in no way convinced that this court ruling in any way helps to prove that a nationwide or statewide lockdown is at all allowable according to the Constitution.
    The use of the excerpt from Jacobson v Massachusetts is the one that holds real water if, and only if, (1) you believe that a court ruling is the “mic drop” of Constitutionality, and (2) if you believe the “my body – my choice” argument does not apply to your fellow humans. The case was in regards to a mandated small pox vaccine. Henning Jacobson claimed in 1905, that a vaccine had made him deathly ill earlier in his life and refused to get it. He was ruled against, though, with the state claiming that states had the absolute authority to enforce compulsory vaccination. This one case, and this one alone, used in the article has merit in its usage by the author. For me, humans should not be forced to put in or take out any substance or material in regards to their own body. Body autonomy is paramount to being an individual.
    My main point, though, is that a court ruling in regards to Constitutionality is untrustworthy in every way. Judges rule based on political biases. That is a fact. If you are worried about who a president will appoint to a court, then you are forced to admit that you believe this, also. If we believed that justices ruled solely on the intent of the Constitution, then we would trust that it didn’t matter who was on the court so long as they were supremely knowledgeable in regards to the Constitution. If you still believe the rulings determine actual Constitutionality and not slanted Constitutionality with bias, then you are forced to admit that you then agree that all rulings make a thing Constitutional. I looked up some real winners. Buck v Bell in which Court ruled that a state statute permitting compulsory sterilization of the unfit, including the intellectually disabled, “for the protection and health of the state” did not violate the Due Process clause of the Fourteenth Amendment to the United States Constitution. Or Korematsu v US in which the U.S. Supreme Court, on December 18, 1944, upheld (6–3) the conviction of Fred Korematsu—a son of Japanese immigrants who was born in Oakland, California—for having violated an exclusion order requiring him to submit to forced relocation during World War II. Or one we all know, Plessy v Ferguson that upheld the constitutionality of racial segregation laws for public facilities as long as the segregated facilities were equal in quality. I can go on, but I feel like my point that court rulings do NOT make a thing Constitutional has been made.
    Between the lack of trust in rulings, and the horribly utilized cases the supposed lawyer cited, I can’t come to any conclusion other than the author absolutely does not present a legitimate case. Call me biased if you like, but objectively, this article is not only unconvincing, but the author is either not a lawyer, or is purposefully misleading. I went to the OP’s page to find the lawyer friend and could not. There are a couple of Josh Millers who are lawyers that I found on a simple Google search. So I don’t know if the author is the divorce lawyer Josh Miller or the injury attorney Josh Miller, or if the OP wrote it and applied a random name to give it credibility. His one and only quality citation, for me (you come to whatever conclusion you want,) is put off by the no-trust in court rulings factor. So, until I hear a more compelling case, I believe the lockdown and compulsory confinement of the masses is Unconstitutional. Now, I’m not saying that we shouldn’t take precautions and take care of each other. Nor am I even arguing that it is not smart to stay home as much as possible. I’m talking strictly about the contents of this person’s argument. If anyone has more information or a better argument, please lay it out for me.

  5. DSwain Reply

    May 17, 2020 at 2:39 am

    “Liberty gives you the right to act the fool if you so choose; it does not, however, give you the right to do so at the expense of others.” -A sentence I jotted in my Constitutional Law class notes one day in 2009.

    That’s a cute little thought that you had or rather probably that the “professor” of the Constitutional Law class you were taking, had. Unfortunately, that sentence is NOT in the US Constitution and is irrelevant. The cases you cite are also irrelevant to the abuse of power that is spreading across this nation. State and local authorities are invoking powers under the guise of a coronavirus emergency.

    People have died of coronavirus, to be sure. However, during the 2017-2018 flu season, about 80,000 people in the US died from the flu. Nothing was shut down. Emergency powers weren’t enacted. Death by disease is sad and no one wants to see it. However, it is a part of life. To date, about 87,000 people have died from coronavirus, however, those numbers are now being determined to be inaccurate. There have been many deaths that have been attributed to coronavirus that in fact were not caused by coronavirus. Recently, Colorado’s Department of Public Health admitted that its COVID-19 death toll was counting those who tested positive for the coronavirus but had died of other causes. They have lowered their numbers.

    Currently, you have a 0.0265% chance of dying from coronavirus (that number is for the entirety of the United States). A statistic that low would normally be considered statistically non-significant. However, our high and mighty governing officials have decided that this is their chance to flex their muscle and clamp down on the peasants. And, it seems they’ve duped you into going along with it. Congratulations.

    As for me, give me liberty or give me death. I was not raised to stick my head in the sand and live in fear. If I die of COVID-19, living a life in the liberties transcribed by our founding fathers, then, so be it. If you are afraid to join society and want to shelter in place, that should be your prerogative. If I want to risk death, that should be my prerogative. People risk death everyday doing things they love to do. Who are you, to tell them they mustn’t?

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