But my Rights! — Stay-at-Home Orders and the Constitution

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Photo by Anthony Garand on Unsplash

First, a disclaimer: I am not a lawyer.

I am just a person who is tired of hearing that stay-at-home orders violate their precious “rights.”

Setting aside for a moment the basic morality of exposing somebody to a potentially lethal virus (Although we aren’t sure yet, it appears that 25–50% of people infected with COVID are asymptomatic).

Stay-at-Home and the First Amendment

Many of the arguments I’ve heard revolve around church services. The First Amendment also guarantees the right of the people to “peaceably assemble.” On the face of it that would make stay-at-home orders, which violate that right, unconstitutional.

However, there’s a phrase that comes into play here. This phrase is not in the Constitution, so some people doubt it applies, but it is in numerous legal precedents:

Compelling state interest.

(You might also see compelling governmental interest. They mean the same thing).

The tl;dr is that the government can overrule our rights if there is a really good reason. It has to be essential, not a matter of choice. It has to restrict as little as possible.

Social distancing is certainly essential; without it we would be seeing a lot more deaths and, although this may seem hard to believe, a worse economic situation.

So the only constitutional question is whether we are applying more limits than needed. In basic concept, stay-at-home orders are constitutional because, by judicial precedent, we have established that restricting people’s rights to achieve a public health aim is permissible. In 1824 (Gibbons v. Ogden) the right to impose quarantine was specifically applied to the states, although the Federal government did impose quarantine during the Spanish flu. And, while not directly related, in Jacobson v. Massachusetts, the Supreme Court decided that states can mandate vaccination without violating anyone’s rights. Let’s also touch onfreedom of religion here. In fact, freedom of religion has quite a few limits on it. We told the Mormons they had to give up polygamy (Reynolds v. United States 1878).

In this decision, we established (and have mostly kept to) the idea that you can’t use your religion to get around generally applicable law. Because the ban isn’t restricted to Sunday services, it’s unlikely that a judge will overturn it.

So, the question is only whether the stay-at-home orders are really necessary and the numbers show that they are working. As time goes on we will be able to fine tune the restrictions, open up much of the economy, etc.

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Photo by Loic Leray on Unsplash

But I Can Take My Own Risks

I’m absolutely in favor of people being allowed to take risks. I ride horses, and every time I do so there’s a risk of being hurt or even killed.

I don’t think we should wrap people in bubble wrap. I do think we should make sure people are aware of the risks they are taking. And people should not be coerced into taking unnecessary risks. And I’m also in favor of mandating safety equipment.

However, with COVID you are not just risking yourself. As already mentioned, the rate of asymptomatic infection could be as high as 50%. I might have COVID right now and have no idea I do, which is why I covered my face to pick up a package…of reusable cloth face masks. Face masks don’t prevent healthy people from getting sick.

They keep sick people from spreading their germs. And right now we’re all “sick” in the sense that we don’t know whether we have or have had this or not. Thankfully, this will change.

So, the point here is that when you claim you have the “right” to go outside…or to 1,000 person church services…you are harming others.

In general, we don’t have the right to harm another person without good reason. If somebody attacks you, you can defend yourself. If you punch somebody for no good reason, you’re in for assault.

Because we don’t know whether we have this virus or not, every time we go outside we are risking harming others. To intentionally do so in certain ways could even be considered a form of assault.

In other words, yes, you can take your own risks. With yourself. You don’t have the right to risk others.

Finally, howling about your rights is selfish. I have sympathy for people who are concerned about their livelihood. But not their “rights” in the middle of this crisis.

Written by

Freelance writer, freelance editor, novelist and short story writer. Jack of many trades. https://www.jenniferrpovey.com/

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