Hasn’t that ship sailed already? Courts are already in the business of scrutinizing deprivation of rights. And now, with wholesale deprivations of the right to travel, the right to associate etc., deference is the order of the day? That smacks of situational law.

A ban on gun sales, but allowing a peeps factory to keep going is simply not rational. And the question of motives must come into play. And once the motives are something other than public health, the whole thing crashes down.

Polio, Diptheria, Measles, and Mumps were among the childhood and even adult scourges within the lifetime of many of us. Those disease could, and often did, cause death or serious lifetime injury. Vaccines now make them very rare.

I recall as a child that many spring and summer months became “polio season”. If a case occurred anywhere, nearby counties and towns prohibited or drastically curtailed many activities such as sports events, swimming pools and theatres; some dismissed schools for a few weeks.

Those largely local shutdowns were only rarely violated. I think that is primarily because people found the disease more dangerous than the economic impact of the quarantine measures.

Our parents’ generation lived through the epidemic “Spanish ‘Flu” circa 1918. Quarantines saved many lives then as well.

My takeaway from your article is that current (and historical) law provides few or no limitations on the measures dictated by the executive branch of federal, state or local governments issuing quarantine orders. Personal experience of local quarantines long ago by many of us certainly reflects that.

Good sir:

I’m thinking out loud. I don’t know this area of law. Such a level of scrutiny is easier applied as a matter of state constitutional law (or amendment) or statute. I am calling more for the way things ought to be because I am bitterly disappointed with the way things stand now.

Kind regards,
CS

“One … may insist” that courts apply some measure of strict scrutiny. And yet if this is not something courts currently do apply, or ever have applied through American history back to and before the Founding, then one is making a case for developing a new constitutional law different from the one we have. Maybe that’s a good idea! But if so it should be couched as something new and considered as such.

I don’t say anything in my article about the class of challenges that say a governor or mayor has overstepped the terms of the statute laying out emergency powers. (To name one example, a lawmaker in downstate Illinois has won a ruling at an early stage on such a claim.) These are decided under statutory, not constitutional, law and the usual deference that judges fall back on in public health emergencies may not apply: if the governor doesn’t have the power in the first place, he loses.

Another problem is the enormous wreckage inflicted on the economy on sometimes rather shaky grounds, and the mostly unsupportable distinction between allegedly essential and non-essential economic activity. The virus knows no such boundaries. Appropriate measures for a grocery store or a dry cleaner or a liquor store or a gas station/convenience store will work equally well in any other location. Same goes for essential/non-essential medical procedures, while exempting abortion, which has nothing to do with any public health concern and everything to do with politics.

Modoc County in California, on the Oregon border, is an example. What may be appropriate for San Fransisco or LA County is ridiculous as applied to a rural county with zero cases. I think it would be completely appropriate for a judge reviewing such state-wide blanket rules to find constitutional problems as applied to particular areas. Same with Michigan. The Upper Peninsula is not metro Detroit.

Kind regards,
CS

All the best,
Site editor