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Are Politicians Trampling the Constitution?

On Monday, Virginia Governor Ralph Northam issued a “stay at home” order.  Although we are rapidly becoming accustomed to these types of orders (which may not necessarily be a good thing), Gov. Northam’s Executive Order No. 55 is effective until June 10, 2020.  With a number of exceptions for going grocery shopping, banking, etc., the Order states that “All public and private in-person gatherings of more than ten individuals are prohibited. This includes parties, celebrations, religious, or other social events, whether they occur indoor or outdoor (sic).”  It is not so much the Order itself that commands attention, it is the effective length of the order.

As jarring as the effective length of the Virginia order (72 days), even more alarming is the recent statement by the Mayor of the District of Columbia.  The New York Post reported yesterday that, “Mayor Muriel Bowser is threatening residents of Washington, DC, with 90 days in jail and a $5,000 fine if they leave their homes during the coronavirus outbreak.”  Leaving aside the issue of an executive official, rather than a legislative body, defining criminal behavior, without coming right out and saying it, Mayor Bowser has essentially declared martial law in the District.

Violation of the substance of the Virginia Order is also a Class 1 misdemeanor in Virginia.

On Sunday, following the recommendations of the medical professionals on his Coronavirus task Force, President Trump has extended the now familiar social distancing guidelines through April 30.  Several of the usual news outlets took the opportunity to criticize the President, not for extending the guidelines, but rather for his earlier hope that the guidelines could end this week.

For example, in a report on its website, CNN stated, “on Sunday (the President) said he’d decided to extend the guidelines — which include suggested limits on large gatherings — to April 30, a sign his earlier predictions were overly rosy.”

However, unlike, Gov. Northam, it appears that the President wants to get the country back to a more normal attitude as soon as possible.  Unlike Mayor Bowser, it does not appear that Trump intends to have people arrested if they violate the social distancing guidelines.

Some, including David Thornton yesterday on this site, have examined the First Amendment’s application to the efforts of public officials to limit or ban religious gatherings.  Thornton took New York Mayor DeBlasio to task on his threat to close houses of worship that continue to gather despite the ban on gatherings of over 10 people.  Thornton is correct in his statement that any attempt to close houses of worship beyond the time necessary to deal with the current threat would be unconstitutional.  But the “freedom of religion” is only one part of the First Amendment.

The First Amendment also give the people the right to peaceably assemble, which various states and local governments are actively attempting to curtail to help “flatten the curve” as we have all come to understand. But how far should government be allowed to go to keep people from gathering as is our right under the Constitution?

In a Washington Post article from March 16, 200, Allie Funk and Isabell Linzer from Freedom House worried about the decline of freedoms worldwide as governments move to limit the spread of COVID 19.  Even though they recognize that “certain limitations on fundamental freedoms are unavoidable during public health crises,” they also worry that, “If governments are allowed to impose indefinite and disproportionate restrictions on access to information, free expression, free assembly and privacy in the name of stopping covid-19, the negative effects will extend far beyond this outbreak. People will suffer a lasting deterioration in basic freedoms, and they will lose confidence in the institutions tasked with protecting them. That means that when the next public health threat emerges, both governments and citizens may be even less prepared to respond appropriately.”

I have wondered aloud over the past few weeks how long Americans will submit to the various restrictions on our fundamental rights by government.  It appears that most people are willing to comply for a season until the health crisis seems to be under control.  Any attempt by governments to curtail our freedoms beyond what appears necessary will not likely be well received.

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