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The constitutionality of "stay-at-home" orders

Glitch

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According to the Fifth Amendment “[No person shall] ... be deprived of life, liberty, or property, without due process of law.” Furthermore, the Fourteenth Amendment stays that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States without due process of law.”

Every Governor who has issued a “stay-at-home” order has violated both the Fifth and Fourteenth Amendments of the US Constitution. Yes, those Governors were abiding by the laws enacted by their respective State legislatures, but those laws are illegal.

The Supreme Court in United States v. Wheeler, 254 U.S. 281 (1920) held that the right to travel without government restriction is one of those “privileges or immunities” of every American. In order to restrict the liberty of anyone both the States and the federal government must require procedural due process. That means a trial for every person they wish to restrict or confine.

No government (local, State, or federal) has the lawful power to curtail natural rights by decree. That includes the illegal curfew ordinances declared by city Mayors. There are no provisions within the US Constitution that grants any government the power to restrict, suspend, or terminate the Bill of Rights.

The States and federal government may only quarantine those who are actively contagious and will infect others imminently. And they must present evidence of both at a trial, at which the government bears the burden of proof.

That means a trial is required before any quarantine, no matter the public danger, for every individual whose liberty they wish to restrict. It must also be a fair trial, not one driven by media-generated mass hysteria or government-generated fear. Anything less is a violation of due process and our constitutionally protected rights.
 
"Give me liberty or give me death!"

It may come sooner than you think...death, that is...:2razz:
 
Governors can declare martial law. Under martial law, you can be shot for being out after curfew. They used to declare martial law a lot in the 1800's for fires, civil disturbances, hurricanes, etc.

The last time they declared martial law was in Hawaii after the bombing of Pearl Harbor. I don't think they shot anyone, but they did imprison people without a trial.

It was common once to quarantine people who came off a ship for 40 days. That's imprisonment without a trial.
 
According to the Fifth Amendment “[No person shall] ... be deprived of life, liberty, or property, without due process of law.” Furthermore, the Fourteenth Amendment stays that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States without due process of law.”

Every Governor who has issued a “stay-at-home” order has violated both the Fifth and Fourteenth Amendments of the US Constitution. Yes, those Governors were abiding by the laws enacted by their respective State legislatures, but those laws are illegal.

The Supreme Court in United States v. Wheeler, 254 U.S. 281 (1920) held that the right to travel without government restriction is one of those “privileges or immunities” of every American. In order to restrict the liberty of anyone both the States and the federal government must require procedural due process. That means a trial for every person they wish to restrict or confine.

No government (local, State, or federal) has the lawful power to curtail natural rights by decree. That includes the illegal curfew ordinances declared by city Mayors. There are no provisions within the US Constitution that grants any government the power to restrict, suspend, or terminate the Bill of Rights.

The States and federal government may only quarantine those who are actively contagious and will infect others imminently. And they must present evidence of both at a trial, at which the government bears the burden of proof.

That means a trial is required before any quarantine, no matter the public danger, for every individual whose liberty they wish to restrict. It must also be a fair trial, not one driven by media-generated mass hysteria or government-generated fear. Anything less is a violation of due process and our constitutionally protected rights.

I suppose this could be true, although its often best to look at the spirit of the action as opposed to the words. While the words may say one is breaking the law if they ignore the order, the state hasn't shown much interest in arresting people as opposed to educating them as what is going on. I know there have been some arrests, but for the most part, people have been left alone or advised as to what is going on.

The vast majority of people do not want to risk getting the virus. They are staying at home regardless of the order. The order gives them idea of who serious the threat is. The state could lift the order tomorrow and things might continue to go on as they have been because, again, most people don't want to get the virus.

So philosophically, one might argue that the order is bad because it is unconstitutional. But in reality, good, because most people find it helpful, as a guide as to the severity of the problem. And that guide is given by the state, which has much greater resources for making that determination than does the individual citizen, their favorite cable news outlet, and unfortunately, the President of the United States.
 
I suppose this could be true, although its often best to look at the spirit of the action as opposed to the words. While the words may say one is breaking the law if they ignore the order, the state hasn't shown much interest in arresting people as opposed to educating them as what is going on. I know there have been some arrests, but for the most part, people have been left alone or advised as to what is going on.

The vast majority of people do not want to risk getting the virus. They are staying at home regardless of the order. The order gives them idea of who serious the threat is. The state could lift the order tomorrow and things might continue to go on as they have been because, again, most people don't want to get the virus.

So philosophically, one might argue that the order is bad because it is unconstitutional. But in reality, good, because most people find it helpful, as a guide as to the severity of the problem. And that guide is given by the state, which has much greater resources for making that determination than does the individual citizen, their favorite cable news outlet, and unfortunately, the President of the United States.

Perhaps it is because until the States actually starts imposing fines and arresting people for violating the "stay-at-home" orders they have no standing with the courts. However, the Fourteenth Amendment does specifically say that no State shall make laws that restrict our right to travel without due process of law. Despite the Governor's unwillingness to enforce those unconstitutional laws, those laws shouldn't exist at all. The fact that they do exist violates the Fourteenth Amendment, regardless whether they are enforced or not.

People are adhering to the "stay-at-home" orders voluntarily. That is already beginning to change in States like Michigan. It will be the people who determine when the States will open up again, not their Governors.
 
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Perhaps it is because until the States actually starts imposing fines and arresting people for violating the "stay-at-home" orders they have no standing with the courts. However, the Fourteenth Amendment does specifically say that no State shall make laws that restrict our right to travel. Despite the Governor's unwillingness to enforce those unconstitutional laws, those laws shouldn't exist at all. The fact that they do exist violates the Fourteenth Amendment, regardless whether they are enforced or not.

People are adhering to the "stay-at-home" orders voluntarily. That is already beginning to change in States like Michigan. It will be the people who determine when the States will open up again, not their Governors.

I think you are right in that it will be the people who determine this, but the vast majority of people do not want to catch the virus, and are thus, willing to stay at home. The clowns in Michigan seem indifferent to it, and look more like a Trump rally than civil rights demonstration.

Which is odd, because Trump's federal government supports the stay at home policy while Trump himself seems to want people to go out and demonstrate against his own government's policy. Can you sort that one out for me?
 
I think you are right in that it will be the people who determine this, but the vast majority of people do not want to catch the virus, and are thus, willing to stay at home. The clowns in Michigan seem indifferent to it, and look more like a Trump rally than civil rights demonstration.

Which is odd, because Trump's federal government supports the stay at home policy while Trump himself seems to want people to go out and demonstrate against his own government's policy. Can you sort that one out for me?

As I pointed out above, the federal government is equally guilty of violating our rights as the States. Yes, the federal government has the authority to regulate interstate and international commerce, and they are the sole authority over immigration. It is not the restrictions Trump imposed on traveling to or from other countries that is at issue here. It is the restriction of our inherent right to travel within our own States and between States. Our individual liberties can only be restricted upon due process.

Neither Trump, nor the Governors, may restrict, suspend, or terminate our constitutionally protected rights by decree. It requires due process for every individual.
 
As I pointed out above, the federal government is equally guilty of violating our rights as the States. Yes, the federal government has the authority to regulate interstate and international commerce, and they are the sole authority over immigration. It is not the restrictions Trump imposed on traveling to or from other countries that is at issue here. It is the restriction of our inherent right to travel within our own States and between States. Our individual liberties can only be restricted upon due process.

Neither Trump, nor the Governors, may restrict, suspend, or terminate our constitutionally protected rights by decree. It requires due process for every individual.

Doesn't answer my question, and maybe you can't, but okay.
 
Doesn't answer my question, and maybe you can't, but okay.

Germany has already opened up it's economy, and there are 35 States that have far less COVID-19 cases and fewer deaths than Germany. The US is still gripped in an irrational panic, destroying the economy and people's livelihoods intentionally for absolutely no reason whatsoever. There is definitely going to be a reckoning coming after this mass hysteria. Michigan is just the beginning.
 
That means a trial is required before any quarantine, no matter the public danger, for every individual whose liberty they wish to restrict.
No it doesn't. Due process doesn't always require a trial. That's why they used the word "due process" and not "trial." You are also confusing the validity of the orders with their enforcement. Whether these orders are constitutional isn't really a procedural due process question. You don't hold trials to determine whether someone has a car before you require them to obtain a driver's license for example. How the orders are enforced would certainly raise procedural due process issues - but most orders aren't really being enforced, so those issues haven't come up.

Moreover, no right is absolute. Even the most fundamental rights can be restricted under the U.S Constitution. And states and cities have much broader authority to enact laws protecting the welfare, safety, and health of the public than the federal government, even absent emergency situations (see the 10th Amendment).
 
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Germany has already opened up it's economy, and there are 35 States that have far less COVID-19 cases and fewer deaths than Germany. The US is still gripped in an irrational panic, destroying the economy and people's livelihoods intentionally for absolutely no reason whatsoever. There is definitely going to be a reckoning coming after this mass hysteria. Michigan is just the beginning.
Germany has not opened up its economy. Some restrictions will be eased beginning Monday, but we're talking baby steps. Germany also has the situation under much more control than any state in the U.S. The testing in most states does not accurately measure how many people are actually infected, because the percentage of the population tested is much lower than other countries (especially Germany, which has one of if not the highest testing rate, so can be more confident about the extent of the outbreak).
 
No it doesn't. Due process doesn't always require a trial. That's why they used the word "due process" and not "trial." You are also confusing the validity of the orders with their enforcement. Whether these orders are constitutional isn't really a procedural due process question. You don't hold trials to determine whether someone has a car before you require them to obtain a driver's license for example. How the orders are enforced would certainly raise procedural due process issues - but most orders aren't really being enforced, so those issues haven't come up.

Moreover, no right is absolute. Even the most fundamental rights can be restricted under the U.S Constitution. And states and cities have much broader authority to enact laws protecting the welfare, safety, and health of the public than the federal government, even absent emergency situations (see the 10th Amendment).

You are mistaken. There are two different types of due process, substantive and procedural. "Procedural due process" refers to the aspects of the Due Process Clause that apply to the procedure of arresting and trying persons who have been accused of crimes and to any other government action that deprives an individual of life, liberty, or property. Procedural due process limits the exercise of power by the State and federal governments by requiring that they follow certain procedures in criminal and civil matters. In cases where an individual has claimed a violation of due process rights, courts must determine whether a citizen is being deprived of "life, liberty, or property," and what procedural protections are "due" to that individual.

The Fourteenth Amendment prohibits States from enacting any law that would "abridge the privileges or immunities of citizens of the United States." Which means that they are specifically prohibited from even creating a law that restricts the movements of its citizens, much less try to enforce the unconstitutional law.

There is no lawful authority any local, State, or federal government can cite that would allow them to supersede or suppress anyone's inherent rights. The US Constitution and our protected rights do not disappear just because you decide to panic and act irrationally.
 
During a state of emergency declaration the govt. can and will enforce measures to provide safety for the masses.
 
During a state of emergency declaration the govt. can and will enforce measures to provide safety for the masses.

Fine. Providing they adhere to the US Constitution and provide due process for every individual they seek to quarantine. Remembering that the burden of proof is on the government, not the individual. They cannot, however, restrict the movements of an entire population without violating our individual rights.
 
Yes, in times of emergency, such orders are constitution. And, no, Glitch, is wrong.
 
You are mistaken. There are two different types of due process, substantive and procedural. "Procedural due process" refers to the aspects of the Due Process Clause that apply to the procedure of arresting and trying persons who have been accused of crimes and to any other government action that deprives an individual of life, liberty, or property. Procedural due process limits the exercise of power by the State and federal governments by requiring that they follow certain procedures in criminal and civil matters. In cases where an individual has claimed a violation of due process rights, courts must determine whether a citizen is being deprived of "life, liberty, or property," and what procedural protections are "due" to that individual.
That's all generally correct, but also irrelevant to my point. The process due is not always a trial.

The Fourteenth Amendment prohibits States from enacting any law that would "abridge the privileges or immunities of citizens of the United States." Which means that they are specifically prohibited from even creating a law that restricts the movements of its citizens, much less try to enforce the unconstitutional law.
That simply isn't true. Like all rights, the right to travel is subject to the rights of others and reasonable regulations. This is why states can require driver's licenses for example, or prohibit pedestrians from traveling by walking on highways.

There is no lawful authority any local, State, or federal government can cite that would allow them to supersede or suppress anyone's inherent rights. The US Constitution and our protected rights do not disappear just because you decide to panic and act irrationally.
No right in the Constitution is absolute. You can't yell "fire" in a crowed theater, despite the First Amendment right to free speech, as a common illustrative example. Generally, your right to do X is limited to the extent it infringes on the rights of others. No rights exist in isolation.
 
Fine. Providing they adhere to the US Constitution and provide due process for every individual they seek to quarantine. Remembering that the burden of proof is on the government, not the individual. They cannot, however, restrict the movements of an entire population without violating our individual rights.

Yes they can and they have before in history.

In the United States, the United States constitutional law gives a police power to the states. State governments can use this power within their own state. However, there is no clear authority for either the federal government or state governments to impose such a lockdown between states. In term of legality of an order, the government must be able to prove that the order advances a "compelling government interest" and the actions are narrow to specifically achieve that goal and they are not unnecessary broad.
Stay-at-home order - Wikipedia


The authority for use of police power under American Constitutional law has its roots in English and European common law traditions.[3] Even more fundamentally, use of police power draws on two (Latin) principles, sic utere tuo ut alienum non laedas ("use that which is yours so as not to injure others"), and salus populi suprema lex esto ("the welfare of the people shall be the supreme law"), to justify restriction of individual liberties in order to protect the general welfare.[3] The concept of police power in America was further expanded in a series of notable court cases in the late-nineteenth and early-twentieth centuries, including the landmark 1851 Massachusetts Supreme Judicial Court case Commonwealth v. Alger, and the 1905 Supreme Court case Jacobson v. Massachusetts.

Police power (United States constitutional law) - Wikipedia
 
Yes they can and they have before in history.

In the United States, the United States constitutional law gives a police power to the states. State governments can use this power within their own state. However, there is no clear authority for either the federal government or state governments to impose such a lockdown between states. In term of legality of an order, the government must be able to prove that the order advances a "compelling government interest" and the actions are narrow to specifically achieve that goal and they are not unnecessary broad.
Stay-at-home order - Wikipedia


The authority for use of police power under American Constitutional law has its roots in English and European common law traditions.[3] Even more fundamentally, use of police power draws on two (Latin) principles, sic utere tuo ut alienum non laedas ("use that which is yours so as not to injure others"), and salus populi suprema lex esto ("the welfare of the people shall be the supreme law"), to justify restriction of individual liberties in order to protect the general welfare.[3] The concept of police power in America was further expanded in a series of notable court cases in the late-nineteenth and early-twentieth centuries, including the landmark 1851 Massachusetts Supreme Judicial Court case Commonwealth v. Alger, and the 1905 Supreme Court case Jacobson v. Massachusetts.

Police power (United States constitutional law) - Wikipedia

The US Constitution does not give "police power to the states." Just the opposite, actually. The Fourteenth Amendment specifically prohibits States from making or enforcing "any law which shall abridge the privileges or immunities of citizens of the United States." As I previously pointed out, the Supreme Court held that our individual right to freely travel within our respective States and between the States is part of those "privileges or immunities" which the States may not violate unless they can provide procedural due process. Meaning they are required to give every person they wish to quarantine a fair trial, and the State must provide evidence to support their case to quarantine the individual.
 
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The US Constitution does not give "police power to the states." Just the opposite, actually. The Fourteenth Amendment specifically prohibits States from making or enforcing "any law which shall abridge the privileges or immunities of citizens of the United States." As I previously pointed out, the Supreme Court held that our individual right to freely travel within our respective States and between the States is part of those "privileges or immunities" which the States may not violate.

When a national emergency is declared the police state kicks in. If you want to play rhetoric magpie try the Supreme Court they agree with the police state option.
 
When a national emergency is declared the police state kicks in. If you want to play rhetoric magpie try the Supreme Court they agree with the police state option.

That may be your fondest wishes, but there is no such provision in the US Constitution and there is certainly no Supreme Court decision that supports your ludicrous assertion. There is absolutely nothing in the US Constitution that gives either the federal government or the States the powers to supersede, alter, or terminate the US Constitution. Not even a declaration of an imagined emergency.
 
That may be your fondest wishes, but there is no such provision in the US Constitution and there is certainly no Supreme Court decision that supports your ludicrous assertion. There is absolutely nothing in the US Constitution that gives either the federal government or the States the powers to supersede, alter, or terminate the US Constitution. Not even a declaration of an imagined emergency.

I have shown you how and why it is done, naysaying and denial will get you nowhere because it has been done in the past and it is being done in the present and yet there is no great outcry except for those ignorant of the law in cases as such.
 
I have shown you how and why it is done, naysaying and denial will get you nowhere because it has been done in the past and it is being done in the present and yet there is no great outcry except for those ignorant of the law in cases as such.

No, you haven't. You made up some BS about State having the right to suppress our constitutionally protected rights in the event of an emergency, but provided no proof. You cited nothing from the US Constitution that gives States any such powers you describe. I can only derive that you are completely clueless about the US Constitution and have never even read it.

There is an outcry in Michigan, and that is only the beginning. The people are voluntarily adhering to the "stay-at-home" orders because they do not know the extent to which their politicians and the media have been deliberately lying to them. That is beginning to end, as we are seeing in Michigan. I, for one, will not allow any government restrictions on my movements and will carry on as I normally have. If the State wants to quarantine me or restrict my movements in any way, they are going to have to convene a trial and present evidence first.
 
No, you haven't. You made up some BS about State having the right to suppress our constitutionally protected rights in the event of an emergency, but provided no proof. You cited nothing from the US Constitution that gives States any such powers you describe. I can only derive that you are completely clueless about the US Constitution and have never even read it.

There is an outcry in Michigan, and that is only the beginning. The people are voluntarily adhering to the "stay-at-home" orders because they do not know the extent to which their politicians and the media have been deliberately lying to them. That is beginning to end, as we are seeing in Michigan. I, for one, will not allow any government restrictions on my movements and will carry on as I normally have. If the State wants to quarantine me or restrict my movements in any way, they are going to have to convene a trial and present evidence first.

Again for those unfamiliar with the history of the United States and the Constitution along with knowing what a precedent is...

Under section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.

Under 42 Code of Federal Regulations parts 70 and 71, CDC is authorized to detain, medically examine, and release persons arriving into the United States and traveling between states who are suspected of carrying these communicable diseases.
States have police power functions to protect the health, safety, and welfare of persons within their borders. To control the spread of disease within their borders, states have laws to enforce the use of isolation and quarantine.

These laws can vary from state to state and can be specific or broad. In some states, local health authorities implement state law. In most states, breaking a quarantine order is a criminal misdemeanor.

Tribes also have police power authority to take actions that promote the health, safety, and welfare of their own tribal members. Tribal health authorities may enforce their own isolation and quarantine laws within tribal lands, if such laws exist.
Legal Authorities for Isolation and Quarantine
| Quarantine | CDC


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The US Constitution does not give "police power to the states."
"Police power" is a term of art. It generally means the ability of a government to establish and enforce laws protecting the welfare, safety, and health of the public. This power derives from the 10th Amendment, as it is a power that was not delegated to the federal government. This is a well-established and universally accepted principle of U.S. federalism.

Now of course police power is not unlimited. And there is debate over how far states can go in exercising police power. But individual rights are not unlimited either. U.S. law is all about balancing competing rights and government interests. You won't find a single interpretation in U.S. law holding any right to be absolute.
 
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