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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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