The Constitutionality and Ethical Issues of ‘Stay-at-Home’ Orders

Emotions aside, we examine the recent “Stay at Home” orders issued by Governors and county Judges nation wide.  Do they even have the power to order you to do so?  Are they constitutional?  Are they even ethical and moral? 

First, let’s look at what the constitution says.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Immediately we see that there are some direct, explicit constitutional issues with Stay at Home orders.  The prohibition of religious rituals and gatherings is a big, clear, violation.  The next obvious violation is completely taking away the right of the people to peacefully assemble.  Making these “stay at home” orders an actual large scale violation of the rights of every single person they are imposed on.

If taken to court, no doubt, it will go up to the Supreme Court.

Due to the impact and drastic nature of the order, the Supreme Court would use their “Strict Scrutiny” test to determine if it is even Constitutional.

  1. is necessary to a “compelling state interest”;
  2. that the law is “narrowly tailored” to achieving this compelling purpose;
  3. and that the law uses the “least restrictive means” to achieve the purpose.

The first prong of the test is that It must be justified by a “compelling governmental interest.” While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of a large number of individuals, and not violating explicit constitutional protections.

Does the government have a compelling governmental interest that would require explicitly violating large number of individuals constitutional protections?

The obvious justification would be the Coronavirus and the national emergency declaration; and the need to “lower the curve” and “save lives” by being forced to “stay home.”  But what happens when the actual data is argued in court and that it is on record, legally, that this virus is just a newer and nasty flu?  Is a nasty flu compelling governmental interest to explicitly violating large number of individuals constitutional protections?  The judicial answer to this question COULD set a VERY scary precedent.

Big government lovers, mommy daddy government dependents, socialists, and closet communist would all say that “yes, there is a compelling governmental interest to protect the welfare of the the people, the common good, from a flu virus”  So, we could only speculate how the court would rule based on their view and philosophy of government, federal system and a confederation of individual states held together by a constitution that elect persons to represent that state nationally; a constitutional republic. So, let’s look at the known rulings and characteristics of the current supreme court justices.

The Supreme Court Justices

John G. Roberts, Jr., Chief Justice.  He is a wild card.  Hailed as a ‘conservative’ he has not been one according to his rulings.  He, however, does not seem to vote based on his personal ideology.  In Department of Commerce v. New York, he shot down government information gathering about the people.  A win for the people.  In Rucho v. Common Cause; Lamone v. Benisek he ruled to take away federal judicial power.  That is a reduction in federalism.  Kisor v. Wilkie, he upheld allowing government agencies to have the power to interpret ambiguous regulations.  Food Marketing Institute v. Argus Leader Media, agreed with the majority that private businesses records are confidential and private.  Flowers v. Mississippi, he joined the majority in granting a new trial due to a potentially racial discriminatory jury selection.   American Legion v. American Humanist Association, he favored religious freedom over imposed secularism.  Apple Inc v. Pepper, he, dissented against the liberal majority ruling against private companies.  Nielsen v. Preap, sided with the majority that the federal government can detain noncitizens with criminal records anytime.

Clarence Thomas, Associate Justice, is a stout moralist.  He is conservative in his world views and interpretations and is very methodical in his opinions.  In Department of Commerce v. New York, he supported the government information gathering about the people so that the government could better estimate its immigration data.  Oddly supported a more nosy government.  In Rucho v. Common Cause; Lamone v. Benisek he ruled to take away federal judicial power.  That is a reduction in federalism.  Kisor v. Wilkie, he dissented in allowing government agencies to have the power to interpret ambiguous regulations.  Food Marketing Institute v. Argus Leader Media, agreed with the majority that private businesses records are confidential and private.  Flowers v. Mississippi, he dissented in an interesting manner in granting a new trial due to a potentially racial discriminatory jury selection.  I irony is that he, the only African American on the court, dissented, leaving an all non-African judges to rule that an all non-African jury may be bias.   American Legion v. American Humanist Association, he favored religious freedom over imposed secularism.  Apple Inc v. Pepper, he, dissented against the liberal majority ruling against private companies.  Nielsen v. Preap, sided with the majority that the federal government can detain noncitizens with criminal records anytime.

Ruth Bader Ginsburg, Associate Justice, she is extremely close to retirement and his most likely holding on until after the next election (I’m sure she is hoping that Trump does not get re-elected).  She is as liberal as they come.  Like most liberal judges, she rules based on her emotions and ideology, then digs for legal justifications to support her preconceived liberalism.  In Department of Commerce v. New York, she shot down government information gathering about the people.  A win for the people. But, not for the same reasons Justice Roberts did.  She hates Trump and is liberal in her immigration views.  In Rucho v. Common Cause; Lamone v. Benisek she disagreed with the majority court and wanted to keep or expand federal judicial power. Kisor v. Wilkie, she upheld allowing government agencies to have the power to interpret ambiguous regulations.    Food Marketing Institute v. Argus Leader Media, she dissented in her opinion against private businesses and their records.  Flowers v. Mississippi, she joined the majority in granting a new trial due to a potentially racial discriminatory jury selection.   American Legion v. American Humanist Association, favored imposing state secularism over the free exercise of religion.  Apple Inc v. Pepper, she joined the liberal majority ruling against private companies.  Nielsen v. Preap, dissented from the majority that the federal government can detain noncitizens with criminal records anytime.

Stephen G. Breyer, Associate Justice, has been on the more liberal side of things.  Though, not as extreme as Ginsburg, Sotomayor, or Kagan, he has those sort of left leaning judicial ideals.  He interprets the constitutions, looking for “purpose and consequences” not just literal textual criticism.  And he seems to be more supportive of government authority and action over the people.  In Department of Commerce v. New York, he shot down government information gathering about the people.  A win for the people. But, not for the same reasons Justice Roberts did.  He is liberal in his immigration views.  In Rucho v. Common Cause; Lamone v. Benisek he disagreed with the majority court and wanted to keep or expand federal judicial power.  Kisor v. Wilkie, he upheld allowing government agencies to have the power to interpret ambiguous regulations.  Food Marketing Institute v. Argus Leader Media, he dissented in her opinion against private businesses and their records. Flowers v. Mississippi, he joined the majority in granting a new trial due to a potentially racial discriminatory jury selection.    American Legion v. American Humanist Association, he favored religious freedom over imposed secularism.  Apple Inc v. Pepper, he joined the liberal majority ruling against private companies.  Nielsen v. Preap, dissented from the majority that the federal government can detain noncitizens with criminal records anytime.

Samuel A. Alito, Jr., Associate Justice, has been on the more conservative side of things.  He is a Roman Catholic and his faith is not benched in his world view.  He is a literal originalist in his interpretations of the constitution.  In Department of Commerce v. New York, he supported the government information gathering about the people so that the government could better estimate its immigration data.  It was interesting that he supported a more nosy government.  In Rucho v. Common Cause; Lamone v. Benisek he ruled to take away federal judicial power.  That is a reduction in federalism.  Kisor v. Wilkie, he dissented in allowing government agencies to have the power to interpret ambiguous regulations.  Food Marketing Institute v. Argus Leader Media, agreed with the majority that private businesses records are confidential and private. Flowers v. Mississippi, he joined the majority in granting a new trial due to a potentially racial discriminatory jury selection.   American Legion v. American Humanist Association, he favored religious freedom over imposed secularism.  Nielsen v. Preap, sided with the majority that the federal government can detain noncitizens with criminal records anytime.

Sonia Sotomayor, Associate Justice, is most definitely a liberal when it comes to constitutional interpretation and the role of government in a society.  In Department of Commerce v. New York, she shot down government information gathering about the people.  A win for the people. But, not for the same reasons Justice Roberts did.  She is a liberal in her immigration views.  In Rucho v. Common Cause; Lamone v. Benisek she disagreed with the majority court and wanted to keep or expand federal judicial power. Kisor v. Wilkie, she upheld allowing government agencies to have the power to interpret ambiguous regulations.  Food Marketing Institute v. Argus Leader Media, she dissented in her opinion against private businesses and their records.  Flowers v. Mississippi, she joined the majority in granting a new trial due to a potentially racial discriminatory jury selection.    American Legion v. American Humanist Association, favored imposing secularism over the free exercise of religion.  Apple Inc v. Pepper, she joined the liberal majority ruling against private companies.  Nielsen v. Preap, dissented from the majority that the federal government can detain noncitizens with criminal records anytime.

Elena Kagan, Associate Justice, just like Justice Sotomayor, she is liberal when it comes to constitutional interpretation and the role of government in a society and stout Democrat given her political employment backgrounds.  In Department of Commerce v. New York, she shot down government information gathering about the people.  A win for the people. But, not for the same reasons Justice Roberts did.  She is a liberal in her immigration views.  In Rucho v. Common Cause; Lamone v. Benisek she disagreed with the majority court and wanted to keep or expand federal judicial power. Kisor v. Wilkie, she upheld allowing government agencies to have the power to interpret ambiguous regulations.  Food Marketing Institute v. Argus Leader Media, she, oddly, agreed with the majority in her opinion against private businesses and their records.  Flowers v. Mississippi, she joined the majority in granting a new trial due to a potentially racial discriminatory jury selection.    American Legion v. American Humanist Association, she favored religious freedom over imposed secularism.  Apple Inc v. Pepper, she joined the liberal majority ruling against private companies.  Nielsen v. Preap, dissented from the majority that the federal government can detain noncitizens with criminal records anytime.

Neil M. Gorsuch, Associate Justice, is a texutalist and originalist in his interpretations of the Constitution.  He is without a doubt, conservative in his world view and a government minimalist.  In Department of Commerce v. New York, he supported the government information gathering about the people so that the government could better estimate its immigration data.  It was interesting that he supported a more nosy government.  In Rucho v. Common Cause; Lamone v. Benisek he ruled to take away federal judicial power.  That is a reduction in federalism.  Kisor v. Wilkie, he dissented in allowing government agencies to have the power to interpret ambiguous regulations.  Food Marketing Institute v. Argus Leader Media, agreed with the majority that private businesses records are confidential and private. Flowers v. Mississippi, he joined Justice Thomas in the dissent opinion in granting a new trial due to a potentially racial discriminatory jury selection.    American Legion v. American Humanist Association, he favored religious freedom over imposed secularism.  Apple Inc v. Pepper, he, dissented against the liberal majority ruling against private companies.  Nielsen v. Preap, sided with the majority that the federal government can detain noncitizens with criminal records anytime.

Brett M. Kavanaugh, Associate Justice, much like Justice Gorsuch, is a texutalist and originalist in his interpretations of the Constitution.  He is conservative in his world view and seems to be more libertarian in his government philosophies.  In Department of Commerce v. New York, he supported the government information gathering about the people so that the government could better estimate its immigration data.  It was interesting that he supported a more nosy government.  In Rucho v. Common Cause; Lamone v. Benisek he ruled to take away federal judicial power.  That is a reduction in federalism.  Kisor v. Wilkie, he dissented in allowing government agencies to have the power to interpret ambiguous regulations.  Food Marketing Institute v. Argus Leader Media, agreed with the majority that private businesses records are confidential and private. Flowers v. Mississippi, he joined the majority opinion in granting a new trial due to a potentially racial discriminatory jury selection.  American Legion v. American Humanist Association, he favored religious freedom over imposed secularism.  Apple Inc v. Pepper, he, oddly, joined the liberal majority ruling against private companies.  Nielsen v. Preap, sided with the majority that the federal government can detain noncitizens with criminal records anytime.

So, given their ideologies and most recent 2019 rulings, we can have some idea about how they could view Stay at home orders.

Liberals would put more weight into the concept and principle of mandatory, government imposed stay at home for the greater good.  Conservatives would put more weight in the individual freedoms and personal decision making of the people for their own good.

In general, it would seem like a split court with Justice Roberts as the wild card.  It seems like he would be against closing down private businesses, given his rulings for private companies.  He also seems to favor traditional religious expressions, so forcing churches to close on Sunday, specially Easter Sunday, sounds like something he would disagree with as well.  It almost seems he would be 55% against Stay-at-home orders and 45% for.  This would swing the court to a 5-4 decision against Stay at home orders.

Is the violation of rights from a flu like virus a compelling government interest?  It seems the court would go either 5-4 or even 6-3 on this one.

The second prong is that the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.

A broad stroke of declaring entire aspects of a society “non-essential” would not sit well with a majority of these justices.  Forcing the closure of entire industries wouldn’t sit well either.  It seems that the court would rule that these actions and orders are NOT narrowly tailored and encompasses way too much;  7-2, 6-3 court, easily.

The third prong is that The law or policy must be the least restrictive means for achieving that interest: there must not be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this “least restrictive means” requirement part of being narrowly tailored, but the Court generally evaluates it separately.

Now this is almost laughable.  There are millions and hundreds of other, least restrictive means to “flatten the curve.”  But, given some of the ideologies of the court, the failure of this test may not be so clear.  5-4 ruling on this prong is a reasonable guess.

Only a totalitarian authoritarian tyrannical oppressive Court would rule “Stay at home” orders constitutional.  The same kind of supreme courts that agreed with slavery and internment camps.

Now, lets apply our Liberty Test to dig deeper in this issue.

  1. Is it supportive of the most related right?
    1. OR does it create hardships and difficulties in exercising such right?
  2. Does it expand the most related right, and or loosen them around that right?
    1. OR does it create or tighten them, increased limitation and contracting that right?
  3. Is it equally levied on all people?
    1. OR do some people receive special treatment or are targeted unequally?
  4. Does it address a extremely specific issue?
    1. OR is it too vast, broad, vague, and subjective?

First prong; No, it does not support ANY constitutional rights.  One may argue, it supports the right to life and pursuit of happiness but… this virus isn’t any more deadly than a peek flu season AND there are WORSE things that KILL MORE people.  And the “pursuit of happiness” is not protected as quarantine and unemployment will cause an increase in poverty and suicide… With that said, we can see that it will create hardships that didn’t exist prior.  Most defiantly NOT supportive of any of our rights.

Second prong; No, it does not expand any rights, nor does it loosen any government regulations or laws around any rights.  In fact, it does exactly the opposite.  As the secondary prong explores, it creates, increases, and tightens limitations and restrictions around just about all rights.  We can conclude that this is the most hateful act towards human rights.

Third prong; No, the simple fact that the government can just deem whomever it pleases as essential while others non-essential is the same as picking favorites and showing bias and partiality in a society that claims to be defenders of equality.  It is NOT levied equally on all people.  Some people are given special treatment through being deemed essential and others are targeted unequally by being deemed non-essential and ordered to close and stay home.  This is the opposite of equality and freedom for all.

Fourth prong; No, it does not.  The issue is so broad in that the issue encompasses the entire planet.  The issue is a virus.  There are hundreds of viruses, all over the place, all the time, every year, everywhere.  The broadness, vagueness, vastness, and subjective nature opens the door wide open for governmental abuse and large scale control and oppression; justified by a virus.

With the Constitutionality of the orders in question and doubted, and its massive failure for freedom and liberty, it then makes us question the moral and ethical nature of these sorts of orders.

The statistics to support the claim of how dangerous the virus is, are skewed and heavily flawed.  At this point, with the sheer number of people that have possibly been infected, even with the CDC guided inflated death count; there is a reasonable argument that it is just another, new, flu strand; with a fairly similar mortality rate of the seasonal flu.  This can not be discounted.  But it exposes the flawed proclamation of the scariness and dangerous-ness of the virus; leans more toward propaganda.

The orders are justified with the idea of “safety, for the common good… a little sacrifice for the community” and “security from a common enemy, the virus”  The ethical problem is that those are the same justifications used for Japanese Internment Camps and a host of other unethical government oppression… so to use them, would also require you to justify Internment Camps to remain consistent and prevent being a logical hypocrite.  The Supreme Court also upheld Japanese Internment Camps too…  So that is the ethical question:

Is targeting a certain group and forcing them to do something against their will and in violation of their rights; moral and ethical?

This question answers both “Stay at home” orders and Japanese Internment Camps because they both depend on the same logic and justifications.  Let’s go through the logical similarities and elements:

  1. “Non-essentials” are identified and targeted.
  2.  Religious groups were targeted with “stay at home” assembly prohibitions.
    1. Japanese Americans were identified and targeted.
  3. The Stay at home orders force “Non-essentials” and Religious groups, to do something against their will (stay at home, can’t go to work, etc.)
    1. Japanese Americans were forced to do something against their will and couldn’t go to work.
  4. The Stay at home orders violate the 1st Amendment rights of “Non-essentials” even “essentials”
    1. Japanese Americans 1st Amendment rights were violated.
  5. The Stay at home orders are needed for “safety and security” during a government declared serious event (national emergency)
    1. Japanese Internment Camps were for “safety and security” during during a government declared serious event (war time)

Logic proves there that if you justify one, it justifies the other.  So the real question you have to ask is:

Were Japanese Internment Camps unethical and immoral?

You can’t say Japanese Internment Camps were immoral but Stay at Home orders are not; because, again, as logically proven above, they follow the exact same logical expression.

If you defend “Stay at Home” orders, you then must defend Japanese Internment Camps, to remain logical and rationally consistent.  If not, you are illogical, irrational, and hypocritical.

We can even evaluate Jim Crow laws, using the same line of logic and rational thought.  We know that Jim Crow laws and Japanese Internment Camps ARE UNETHICAL and IMMORAL; therefore, we can conclude that Stay at Home orders that depend on the very same logical must then be unethical and immoral as well.

Though, we should NOT solely depend on The Supreme Court to determine our ethical and moral grounds.  They too defended Jim Crow laws (the “separate but equal” ruling, Plessy v. Ferguson) and Japanese Internment Camps (Korematsu v. United States).  And let us not forget the host of other court rulings throughout history that WERE and ARE and forever will be unethical and immoral (Historic American Government Oppression). Ethics and Morality transcends the Supreme Court.  They did not invent it or define it.  They either agree with it and defend it, or violate it.

Those who defend “Stay at Home” orders, would have also defended Japanese Internment Camps and Jim Crow laws in those times.  They may say that they wouldn’t have but their thinking and cultural emotions is of the present.  But their logic is timeless.  And the logic, if applied in that era, within that era’s thinking and cultural emotions, would have led them to the same conclusion; the justification of taking away rights for the common good.

This is for you:  Dear #StayHome People,

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