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Why COVID lockdown is worrisome

The United States has suffered worse epidemics (for example, smallpox and the Spanish Flu) and emergencies (for example, the Civil War and World War II) than COVID. Yet the government never before locked down the people similar to what just happened. The American people will regret allowing this to occur as the precedent is now set for in effect suspending the Constitution.

Forty-three states locked down their people in response to the coronavirus. The lockdown ordered people to stay home and backed it up with criminal sanctions. Only essential businesses were allowed to remain open. Schools and universities were closed. The initial reason given for the lockdown was to flatten the curve (protect hospital capacity). This quickly changed to prevent COVID from spreading. The lockdowns often lacked an end date.

In March and April, seven states — Arkansas, Iowa, Nebraska, North Dakota, South Dakota, Utah, and Wyoming– and a number of countries (for example, Iceland, Japan, South Korea, Sweden, and Taiwan) did not lock their people down. The data tell us that the lockdown orders did not save lives, although this was not known at the time these decisions were made.

Pennsylvania Gov. Thomas Wolf, ordered Pennsylvania residents to stay at home, banned public gatherings, and closed non-essential businesses. His orders extended for six months with no end in sight. Although Wolf later suspended the orders, he reserved the right to reinstate them at will. The Pennsylvania legislature previously authorized this executive takeover by granting the governor broad emergency powers.

In a Sept. 14 decision, County of Buter v. Thomas W. Wolf, District Court Judge William Stickman IV, a Trump appointee, found this ravaged the Constitution. Consider the stay-at-home order. Pennsylvania ordered its residents to stay at home except when they needed to get access to or provide life-sustaining goods or services. Stickman noted that the stay-at-home order was unprecedented in American history. He observed that the widespread-and-extended shutdown far exceeded the 1918-1919 short shutdown of businesses during the far deadlier Spanish Flu. He further observed that the shutdown was dissimilar to a person-specific quarantine.

Stickman argued that the stay-at-home order violated the 14th Amendment’s Due Process Clause. He noted that there are fundamental rights at stake, including, the right to travel. The right to travel is fundamental, Stickman found, because it is essential to ordered liberty and deeply rooted in the nation’s history. In addition, the right is inextricably linked to other fundamental rights, such as the right of association.

Stickman reluctantly followed the Third Circuit in applying intermediate scrutiny to evaluate the stay-at-home order rather than the correct test: strict scrutiny. The intermediate-scrutiny test holds that a law infringing a fundamental right is unconstitutional unless it furthers an important government interest by a means that is substantially related to that interest. It is less demanding than strict scrutiny (the government must have a compelling state interest and the means must be necessary to achieve it), but more demanding than rational review (the government must have a legitimate state interest and the means must be rationally related to achieving it).

Even with intermediate scrutiny, the law still failed miserably. Stickman found that there were far less burdensome means to fight the pandemic than locking down a whole people and, hence, the law was not reasonably necessary to achieve the government’s goal.

Wolf also banned public gatherings, again with an open-ended order. This applied to church meetings, but not to Black Lives Matter protests. Stickman noted that this ban on gatherings infringed two inextricably linked fundamental rights: right of free speech and right of assembly. The state argued that this was not aimed at speech. Still, Stickman argued, even if this were so, it still failed the test for a time, place, and manner law that governs content-neutral restrictions on speech. Such a law must be narrowly tailored to serve a significant government interest and leave alternative channels for communication. The law did not do so. The ban was too haphazard, leaving Home Depots open, but closing down churches. Churches could have taken the same precautions as stores. The state was unable to point to a single case of a public gathering widely spreading the virus.

Stickman found the categorization of some business as essential and others not was so arbitrary (not done according to either a clear criterion or science) and done so poorly (for example, the waiver process was closed early to avoid addressing a backlog of requests) that it violated the Equal Protection Clause. He also found that the closing of businesses violated the Due Process Clause because it infringed the fundamental right to earn a living.

There are several lessons to be learned. First, federal and state legislatures should rescind open-ended grants of emergency powers to the executive. Governors – for example, New York’s Andrew Cuomo — cannot be trusted with this much power. Where the powers have not been rescinded or where a governor ignores the recission, legislatures should rein in the executive. One wonders where the Pennsylvania legislature was during this debacle.

Second, the American people need to support those who prioritize liberty above safety.

The American people should have contempt for politicians with a clear track record of trampling on citizens’ rights or who do not appreciate the constitutional limits on government power. Kamala Harris’ disgraceful abuses as California Attorney General make her a paradigm instance of the former. Barack Obama’s weaponization of federal agencies (for example, DOJ, FBI, and IRS) and dragnet searches (for example, NSA’s internet searches) make him a paradigm instance of the latter.

Third, the nation needs judges who will strictly enforce Due Process protected rights to assembly, earn a living, free speech, travel, and so on. Result-oriented embarrassments – see, for example, Ruth Bader Ginsburg – and those who mechanically defer to the government – see, for example, Stephen Breyer – are to be avoided.

Sadly, the lockdown is now precedent for government action when future epidemics, unrest, and wars occur.

Stephen Kershnar is a philosophy professor at the State University of New York at Fredonia. Send comments to editorial@observertoday.com

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