America Is Facing A National Constitutional Crisis

Today, Rhode Island announced that it would be sending the Rhode Island state police and the Rhode Island National Guard door to door looking for New Yorkers who left New York City because of the dangers of coronavirus. The purpose? To force them into a 14 day quarantine. The Rhode Island state police also will be stopping every car with a New York license plate to inquire where people are coming from and to force quarantines if the luckless occupants come from New York City. Rhode Island’s governor covers her political backside by saying that a national emergency justifies it.

These actions are blatantly unconstitutional – even in national emergencies – and they violate so many constitutional provisions that it becomes a task to name them all. Here are some for starters. The First Amendment – multiple times. The Fourth Amendment. The Fifth Amendment. The Ninth Amendment. The Fourteenth Amendment – multiple times.

California has imposed a mandatory quarantine in some form or another on the entire state. Many states have shut down all “nonessential” businesses, and they have banned all “nonessential” gatherings. There is little to no guidance on what counts as essential. In most cases, these actions were done by executive fiat under broad and vague public health laws. President Trump has indicated, in a tweet as usual, that he is considering imposing a quarantine on New York, Connecticut, and New Jersey – a threat that he appears to have backed off again.

Coronavirus presents a serious public health risk. I get it, but it does not justify the unilateral suspension of constitutional liberties. Politicians talk about the public interest, but they completely ignore the fact that we the people have declared our public interest in the United States Constitution and in our state constitutions. Yes, there is a police power that, properly exercised, would enable governments to take certain emergency steps to protect public health, but that police power does not give the government any license to suspend constitutional liberties in the name of an ill-articulated public interest.

We the people have clearly articulated our public interest in civil liberties through the United States Constitution and our state constitutions. We did not create any public health exceptions. Indeed, the United States Constitution is very specific on exactly what rights can be suspended by whom under what circumstances. See Article I, Sections 8-9. No where does it provide for a suspension for public health emergencies.

As my beloved boss, colleague, and mentor, Norm Pattis, argues in his comments on President Trump’s “consideration” of a federal quarantine on New York, Connecticut, and New Jersey, the real danger is the precedent that we create in crises, which will prove more terrifying than the virus itself in the long run. For example, it took the United States Supreme Court 74 years to reject its craven acceptance of the forced internment of Japanese-Americans in World War II, finally doing so in 2018.

Despite our nation surviving disease, war, famine, and other crisis without surrendering its liberty, we somehow are staring at circumstances where the first response is to rip our liberty away from us. Even more depressing, many Americans feel totally fine with surrendering their liberty for temporary safety when the panic of a crisis ensues. In other words, Americans are becoming more and more accustomed to doing without their constitutional liberties when a crisis rears its head.

Our constitution cannot endure unless our citizens believe in it and defend it. American citizens are becoming more unbelieving in it and less willing to defend it. If our nation doesn’t wake up, we may have a very different America with a very reduced set of liberties in the future.

We face a national constitutional crisis precisely because of that.

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