by Zach Garris, April 23, 2020
Debates are taking place as to whether current government action in response to the coronavirus is constitutional.
Judge Napolitano at Fox News said such government action is unconstitutional even during a crisis. The state shutdowns are violating the U.S. Constitution in several ways.
States are violating the Contracts Clause (Art. 1, Sec. 10) by interfering with lawful contracts. They are violating the Due Process Clause of the Fourteenth Amendment by interfering with an individual’s life, liberty, and property.
And states are violating the Takings Clause of the Fifth Amendment by not providing just compensation for a taking of property. He added that the First Amendment rights to associate and travel are also being violated.
John Malcolm responded at The Heritage Foundation and said that federal, state, and local governments “appear” to be acting within the bounds of the Constitution.
Malcolm admits there are a handful of illegal measures taking place, but then he appeals to Alexander Hamilton in the Federalist Papers on the need for an “energetic executive”—ignoring the fact that the Federalist Papers have no legal authority and were not even influential outside of New York during the ratification debates.
Malcolm cites the Commerce Clause as the basis for federal action, such as the Stafford, Act, the Public Health Service Act, and the Defense Production Act. Of course, he assumes the Supreme Court’s position since 1942 that the Commerce Clause is an unlimited-federal-power clause rather than the original limited power enabling the federal government to ensure free trade among the states.
Turning to the power of the states, Malcolm correctly says that the Tenth Amendment reserves broad police powers to the states.
He then cites two Supreme Court cases in support of his argument that states can invoke police powers for health and safety to respond to a health crisis—a 1905 case that upheld a state practice forcing the smallpox vaccine on all citizens, and a 1918 case that upheld the Selective Service Act (the draft for compulsory military service).
This leads Malcolm to conclude that governors who restrict public gatherings and enact quarantines are not carrying out “totalitarian impulses.”
This really is a poor argument.
The 1918 Selective Service case concerned a federal act—and it was decided wrongly, as the court looked to the practice of other nations rather than the Constitution. The American tradition was state militias forming the military, not the federal government conscripting men.
And the 1905 case differs significantly from the situation where governors shut down businesses. This is weak precedent.
The most glaring problem with Malcolm’s response is that he does not address Napolitano’s argument that the states are violating the Contracts Clause, the Due Process Clause, the Takings Clause, and the First Amendment’s right to travel and associate.
While the Bill of Rights was not supposed to apply to the states (including the Fifth Amendment’s Takings Clause and the First Amendment) and the Due Process Clause of the Fourteenth Amendment was only supposed to restrict judicial and not legislative infringement, Napolitano is probably correct if we follow current court precedent. The Contracts Clause is a genuine limit on the states regardless.
However, both Napolitano and Malcolm leave out two important points.
First, the federal government has no constitutional basis for the current financial bailouts taking place by Congress and the Federal Reserve. These will have terrible economic ramifications for years to come, yet the constitutional question is completely ignored.
Second, state governors’ powers are also limited by state constitutions (not just the federal constitution). These vary widely, and you will have to examine your state constitution on this question—many states have similar protections to the federal constitution, including the Contracts Clause, Takings Clause, and right to travel and associate.
In looking to our state constitutions, a state’s actions may be illegal regardless of what the U.S. Constitution or federal courts say.
For example, the Wisconsin state constitution says, “The right of the people peaceably to assemble . . . shall never be abridged” (Article 1, Section 4). Thus, Wisconsin cannot legally prohibit groups assembling to protest.
However, even if the governors’ orders are legal under federal and state constitutions, that does not mean these practices are acceptable. Something can be “constitutional” and still be tyrannical.
The governors’ orders are highly arbitrary, especially when it comes to what is defined as an “essential service.” Well when it comes to putting food on the table, almost everyone’s job is “essential.”
While governors are banning harmless activities like lawncare services, many are permitting abortion as an “essential service,” with Michigan’s governor even calling abortion a “life-sustaining” procedure.
We were told the quarantine of all society was needed so that the health care system would not be overwhelmed. The health care system never came close to being overwhelmed, and in fact many medical staff have been laid off around the nation. Yet the quarantine continues.
There are questions as to how deadly the coronavirus actually is and whether the quarantines are just delaying the curve. But many governors have decided that they must shut down the entire service sector of the economy, especially small businesses, rather than quarantine the sick and enact more reasonable restrictions to protect the vulnerable.
Not to mention, states are absurdly imposing the same restrictions on both close-proximity cities and rural areas with few cases of the virus.
This time it is not the federal government overstepping its bounds, but the states.
State governors are destroying more livelihoods every day this goes on. And there is no end game. In this sense, Malcolm is wrong. Constitutional or not, we are living under tyranny.
Zachary Garris resides in Michigan, and holds a Juris Doctor from Wayne State University Law School.
