As an Idaho attorney, I have deep reverence for the United States Constitution. Those who are squawking about the “unconstitutionality” of Gov. Brad Little’s efforts to contain the coronavirus really need a refresher in the basics of the American constitutional system.
North Idaho Rep. Heather Scott has been the most brazen, releasing a video last week where she asserted Little’s actions are “unconstitutional, un-American, and not the Idaho way . . This will not end if we do not push back . . .”
She was joined by fellow Idaho House member Tim Remington who is also a Coeur D’Alene pastor. He defiantly held a church service with a large number of attendees and claimed that orders not to hold public meetings “just showed everybody in this nation how, because of a flu, ok, they can completely take away all of your First Amendment rights.” In fairness to Remington, his church has indicated that the public worship service will not be repeated. He has not retracted his statement.
Lastly, there is Bonner County Sheriff Daryl Wheeler who wrote a letter to Little sharing his belief that the virus is a globalist conspiracy and “now it is time to reinstate the Constitution.”
All of these constitutional claims are heavily flawed.
Idaho’s Republican Attorney General, Lawrence Wasden, didn’t mince words, telling the Idaho Statesman “[t]he law in this area is clearly defined. I have no problems with providing a legal defense of the governor’s order and stand ready to do so should the need arise.”
Contrary to their beliefs, neither Scott, Remington or Wheeler, are arbiters of what is or is not constitutional in Idaho. As former U.S. Supreme Court Justice Antonin Scalia pointed out, the determination of whether something is constitutional in our American system “is the business of the courts”. That has been true since the Supreme Court handed down the case of Marbury v. Madison in 1803.
Part of their rationale for questioning Little is the flawed assumption that constitutional liberties are completely unlimited regardless of the circumstances. That is not accurate.
For instance, freedom of speech is directly guaranteed by the First Amendment. Yet, the case law is clear that it is not an unfettered right. As Justice Oliver Wendell Holmes wrote in 1919, in a case involving a speech made in opposition to the World War I military draft, “[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.” The takeaway is that government can block speech that endangers others by triggering a riot. Other recognized restrictions are for defamatory communications and, in certain situations, obscenity.
There are similar bounds on important rights like guns and even religion. Americans do not have the ability to own or possess any weapon, including much of the military’s arsenal (there is no right to possess a personal howitzer). And, a religion that required human sacrifice as a central tenet would be prevented in our country from acting on that belief.
That brings me to the point I made in a previous column. In a true emergency, like a pandemic, government has the clear power to override personal, even constitutional, liberties. I cited the 1905 case of Jacobson v. Massachusetts, upholding a state law and local order that required a man to be vaccinated for smallpox despite the unwanted intrusion on his person.
But, such extreme powers are not, in the end, unlimited. The power of government to take extreme actions unequivocally terminates once the emergency passes.
Thus, if Gov. Little were to assert that the right of assembly shall remain restricted after the fade of the coronavirus, he would be hit by multiple lawsuits from different directions. I have little doubt that the Idaho courts, both state and federal, would quickly step in and stop such abuse. And, the political consequences by the public and other officials would be brutal.
But, practically, Brad Little is not the sort who would abuse his power in such fashion. Idaho voters in 2018 choose him to be governor in part to tackle challenges like this. And, he will probably be rewarded at the ballot box in the future for his decisiveness in this time of crisis.
These three officials are harkening back to a doctrine (nullification) asserted by officials in the pre-Civil War South to justify fracturing the Union. The idea is that they (rather than courts which are today dominated by conservative judges) decide constitutional compliance. That is unsurprising on the part of Heather Scott in that she is a supporter of the so-called patriot movement’s effort to break away from the United States. But, the other two should know better.
Scott, Remington and Wheeler and any others who follow their example need to be held to full account for their reckless and flawed pot-stirring in a time of public danger. That obligation to hold them account rests in the hands of both their local constituents and their fellow office holders. The price paid should be heavy.