As April came to a close, there have been numerous stories across the country regarding protests being waged at State Houses against restrictions and actions of certain governors with respect to their responses to the Covid-19 pandemic. Ultimately, the United States Constitution protects our right to associate, assemble worship, and travel. The current quarantine orders are obviously direct restrictions of these rights placed by governors of each respective state. Back in 1824, the Supreme Court recognized in Gibbons v Ogden that state authority includes the authority to enact “quarantine laws” and “health laws of every description.” Gibbons v Ogden, 22 U.S. 1 (1824) But does this mean during these times of extreme power enacted by the governors that our Constitutional rights should be non-existent or lost?
The “quarantine” restrictions currently enacted by governors across the nation vary greatly, and some are already in the process of being lifted. Some of the more extreme examples involve license plates being collected at church services where participants remained in their cars; people being prohibited from purchasing seeds to plant in their own personal homes or gardens; home-owners being prohibited from travelling to their weekend cabins or vacation homes; and some essential businesses being ordered as to what particular goods it could or could not sell. Other questions have arisen as to the fairness of these orders where liquor stores have remained open as essential when churches are closed tight.
Some members of Congress have even gone so far as to suggest suspension of personal property rights during this pandemic; and have supported or touted the issuance of guaranteed minimum income as part of the response. Inevitable as it was, some of the first lawsuits challenging some of these state mandates have been filed, most notably here in Illinois where Clay County Circuit Judge Michael McHaney granted a temporary injunction in a suit filed by State Representative Darren Bailey challenging Governor Pritzker's extension of the stay-at-home order through the end of May. Pritzker is appealing this decision.
In the midst of all of this, it is logical for many people to debate and wonder what these protests and lawsuits mean and whether they are justified given the fact that we are surrounded by stories of our fellow friends and neighbors suffering from this pandemic. The resounding response is that they are absolutely justified and frankly essential for the safety of the Republic and future survival of the nation itself as a whole – at least the nation the vast majority of us know and love in spite of our political affiliations. Even the vast majority of those of us who lean to the left of the political spectrum can agree that we do not want to set precedent that jeopardizes or destroys the basic freedom that we all love and largely take for granted. It's that very freedom that we must always remember, especially during times such as these, must always be protected. In answer to the question above, our Constitutional rights should never be extinguished or lost.
Now, this goes without saying that we certainly should take the pandemic seriously, and that it is appropriate to take many of the precautions that our leaders have established. The crucial concept that must always be foremost in our lives at all times, but especially now is how we achieve the appropriate balance. Our civil liberties are not extinguished just because of a pandemic that allows state governors to take drastic measures, such as we see presently. The ultimate question is when do state governors go too far? Attorney General Barr made headlines again by recently announcing that the Justice Department may take legal action against governor's stay-at-home orders during the Covid-19 pandemic if it is deemed appropriate.
The law governing our basic Constitutional rights is centered on this very simple concept of appropriate balance. This means that the courts will determine the Constitutionality of certain laws, including those imposed by governors during a pandemic by employing strict scrutiny. This means that in order to pass this test, courts will review whether or not there was (1) a compelling state interest in the rule or law and (2) whether the rule or law was narrowly tailored to achieve that compelling state interest. The first element will likely be readily established in all these cases. The creative debate will most certainly come into play in the second element to argue that the certain of these mandates are not narrowly tailored, and in some instances not equally applied. The courts traditionally give great deference to the state in these legal challenges. Of course, it has been several decades since anything along these lines has occurred, so some of these outcomes would be interesting to see.
The bottom line, is that there should never be the complacency by anyone in this country to blindly think these rights can be easily erased or that it is inappropriate to lawfully challenge or protest these issues if appropriate. No pandemic or national emergency should ever cause this kind of fear. In fact, the only thing to truly fear is that we become complacent enough not to care about these infringements when it seems that they cross the line.
During our continued quarantine and response to this pandemic, we must remember that in spite of our duty to follow the rules and protect each other from this virus, Governors and Presidents are not sovereigns. They are not kings. We the People are the reigning sovereigns in this country, and that must always be in the forefront of our minds at all times, good or bad.
Throughout our history, millions of people died to protect our inalienable and Constitutional rights and the freedoms we are blessed with. The vast majority of all people that lived throughout history did not enjoy those same freedoms. While we rightfully protect ourselves and each other from this pandemic, we have to find the appropriate balance to stay as healthy as possible but at the same time rightfully protect ourselves and each other from any erosion of this country's founding principles. The principles that our Constitutional rights are sacred, that the right to life, liberty and the pursuit of happiness are inalienable, and that We the People are the Sovereign.
Kreamer Law Group is here to help
Under these unprecedented circumstances, our leaders have been empowered to take unprecedented action. It is never acceptable for these actions to permanently take away your constitutional rights. The Kreamer Law Group is devoted to defending your rights If you have any questions about the information above or have any legal questions please call or text 630-995-3668 for a initial free consultation with John Kreamer or Joe Urani.
This information is of a general, educational nature and should not be construed as legal advice pertaining to your specific circumstance, case or situation. Such advice must be sought from your own attorney pursuant to an attorney-client relationship, after consideration of your specific facts or questions.