There's no way to take something as short as the US Constitution and take it as the be all and end all of US law. It's surely supposed to be the underlying basis, not the final word.
While the Constitution may be short, the standard introductory textbook for law students on constitutional law has 1,900 pages and weighs just over 3 kg. The U.S. Constitution does many things, but in terms of lawmaking it merely outlines the boundaries inside which laws can be made and enforced. In fact, the country was several amendments in before it was decided whether the Constitution governed lawmaking by the States, or merely limited the national government. (In all fairness, a substantial portion of the textbook I mentioned deals with such unique practical problems as our federalism, not with the lofty principles of civil governance.)
Our judiciary is a good example of how it's supposed to work. Americans speak of an "Article III court," which refers to Article III of the Constitution describing the judiciary. It mandates one supreme court and one justice. All the rest is set up by Congress. And the early efforts to structure a judiciary looked not unlike the way the U.K.'s judiciary evolved from an apparently baffling array of historical courts. One of the first and most important cases started out as a simple petition for writ of mandamus -- poor Mr Marbury having been denied a certification of his appointment to a judgeship by James Madison's state department. The case turned on the Judiciary Act of 1789 that was worded slightly -- but importantly -- differently than the Constitution. The law -- Congress' initial attempt to create the "inferior courts" asked for in Article III -- defined a certain kind of court and over what cases it had original jurisdiction. But it contradicted the direction given in Article III regarding the original jurisdiction of the Supreme Court.
Mr Marbury never got his judgeship; the case was dismissed for lack of jurisdiction. But in deciding that the U.S. Supreme Court did not have original jurisdiction over his petition for that specific writ, as the Constitution specified, the Court made a very important ruling. It noted that the time-honored role of courts is, in part, to decide which of two contradicting laws should govern some set of facts, and stated brazenly that the Constitution -- being a very high law, but a law nonetheless -- should be subject to interpretation, construction, and analysis the same as any other law. This includes the balancing of equities that render the law of the constitution malleable where necessary, not absolute and inviolable. Judicial review of laws is not a power the Constitutional officially grands to courts in the U.S., but it's one of the most powerful things an Article III court can do. Similarly, courts established in the States have the power to review state laws for conformance to state constitutions. And there is a complicated set of rules to govern when U.S. district courts can test state laws against the U.S. Constitution.
Thither Michigan. Perhaps coincidentally, the Michigan Court of Claims handed down a ruling on the same day upholding the likely constitutionality of the Governor's orders establishing the quarantine. (Plaintiffs had asked for a preliminary injunction, which was denied on the grounds of the plaintiff's unlikelihood to succeed on the merits.)
We'll get to that.
And do these morons really think that the people who wrote it all out honestly thought that there were no circumstances whatsoever under which exercising that right might be a bad idea, such as during a global pandemic of a disease that can be transmitted easily from person to person?
Yes -- in so many words -- with a "but." The "No stars in the photos!" version of the legal argument here comes from
Ex Parte Milligan, a famous 1866 case in which the U.S. Supreme Court ruled that the rights guaranteed in the Constitution (in this case, the right to due process) are not suspended just because the government is dealing with an emergency (in this case, the U.S. Civil War). It is then argued (erroneously) that this establishes the supremacy of constitutionally-protected rights over such things as executive orders.
Plaintiffs in the Michigan case allege that the Governor violated the right of due process in quarantining everyone, not just the sick. They argued further that the Governor had no right to issue such orders, because the state constitution hadn't granted her that power.
The second point was easily disposed of. As in nearly every State, there is a law in Michigan that governs when the executive may issue emergency orders. It defines what constitutes an emergency. It grants the executive certain additional powers, enumerated in the law. (Restricting travel is a common provision.) It limits the duration and extent of such orders. And it reserves the power to review and overturn the orders, and the sole power to decide to extend them. (Here in Utah the legislature wants to revise our emergency law to require the Governor to give the legislature 48 hours' prior warning before issuing an emergency order, but this is largely a political tussle.). So as long as the Governor exercises only the powers delegated to her, according to the law governing that delegation, no separation-of-powers question arises.
The due-process question requires more analysis, but the summary of it is that while
Milligan precludes statements of the ilk, "There is an emergency, therefore your rights are suspended," it quite conspicuously fails to prevent emergency circumstances from being considered in the balance of equities. Preventing exigency from being a supremely overriding concern does not stop it from being a concern at all. Nearly all causes of action that allege government overreach cite
Milligan in this same wrong way.
Infamously, American courts have little if any power to second-guess the wisdom of a legislature or the executive. Those are considered policy matters, and therefore governed by the mechanics of political government, apart from which the judiciary ostensibly stands. So the constitutionality of the Governor's order -- it having the
ad hoc force of law and thus being reviewable -- has to clear only a very low bar. An order within an officer's endowed duties simply has to be rationally connected to an evident emergency, and lack evidence of an ulterior motive. In short, a court answers only two questions: Does the officer have the power to make this law? and, Is the law merely a pretext? The court does not ensure wise government, only orderly and lawful government. It is not permitted to question the wisdom of whether quarantining everyone is a good idea.
The order having been given pursuant to undeniable evidence of a global pandemic, its documented appearance and lethality in Michigan, and uncontested principles of epidemiology, it easily passes constitutional muster on the rational basis point. Plaintiffs present no evidence that the steps it advocates have any other goal except the stated desire to prevent widespread infection. Whether better or less burdensome restrictions would have been more desirable is outside the court's jurisdiction.
Political remedies for the wisdom of the order need to go a long way before armed rebellion is the appropriate remedy. Here the political process has worked; the Michigan state legislature is controlled by Republicans, and they have declined to extend the Governor's emergency order -- the power they reserved for themselves and, by extension, for the people. This is the advisable process for changing policy in the U.S. pattern of government. It is highly flawed in practice, but it's design to try to keep the question of what should be done in the hands of the people, not of some judge.
The undercurrent of this movement flows over a solid bed of American individualism. The attitude of many an average American is that no one can tell him or her what to do. The Spanish Flu quarantine and subsequent focus on public health gave rise to many court cases testing the legal extent of individual sovereignty, and nearly all of them sided with public health. The argument is presented that a person's health and the care of his body should always be his own business. No decision by government should impose treatments or preventative measures upon people who don't want to be burdened by them. They get to decide for themselves how to address the risk of illness or injury, and accept as much risk as they want in order to exercise their constitutionally-guaranteed freedoms. It's the Nanny State argument writ somewhat smaller.
It's not hard to see the fallacy on which this is based. Our ability to communicate deadly diseases amongst ourselves creates a duty of care that necessarily burdens the rights of assembly and commerce. Most individualists don't disagree, but they advertise that the only acceptable remedy is to quarantine just the contagious. The constitutionality of such a quarantine policy is undisputed, as it is a narrowly-tailored temporary policy based on the actual discovery of infection. It raises little question of due process. Here, however, we simply have no practical way to determine who is contagious and who is not. For reasons we have lamented here, the U.S. was entirely unprepared to make that determination and thereby enact a more narrowly-tailored policy. That doesn't make the public-health interest go away. The political arms still have a responsibility to impose a reasonable duty of care on their citizens. And as due process cannot here distinguish between the sick and the well, the ability to finely tailor a policy -- as desirous as that would be -- is denied the decision-maker. The decision is then to apply it equally to all. This doesn't do a whole lot to address rampant individualism, but you can't reason your way around an inherently unreasonable position.
But.
While some of the protesters are motivated solely by their misreading of
Milligan, many more are simply more conspiratorial than the more obedient and trusting crowd. Fed by a steady stream of propaganda from Fox News and others, they simply don't believe COVID-19 is as grave a threat as is being reported. It's just the flu, they say. Or they argue that the balance of equities should weigh more heavily toward commerce. It's not so much that they deny the balance of equities as the governing rule as it is they say it's a pretext for eroding civil liberties because the power-grabbers are overstating one side of the equation.
Following the USA PATRIOT Act and similar legislation, and revelations of previously unknown actions of government, the American public has become highly sensitized toward questions of government overreach, especially accompanying declarations of threats to our safety. So, for example, efforts to mitigate the pandemic by means of electronic contact tracing can be easily reconstrued as efforts to expand routine surveillance of every citizen. If only all conspiracy theories could be as easily dispelled as some of the classic genres we have discussed here. Our safety in situations that arise only every hundred years or so, like a global, deadly pandemic, requires trust in leadership. I fear that trust has been squandered by nearly all American leaders in the pursuit of petty partisan or special interests. And it has been tolerated by the electorate for far too long.
