Coronavirus and the casual eradication of constitutional rights

A government that prioritizes prosecuting surfers and beer drinkers over pimps and drug dealers is a government adrift

Since the first states issued self-isolation orders in early March Americans have surrendered a shocking portion of their rights to the political class. In a matter of weeks 250 years of constitutional law has collapsed upon itself like a spectacular legalistic quasar. Like an imploding star the collapse has generated a massive release of energy, only instead of electromagnetic radiation the energy here is frenzied governmental activity.

To be sure, a pandemic like coronavirus requires robust public sector action. But the brute force of the official response is deeply disconcerting, more so in light of history: Governments that seize control rarely relinquish it.

At the same time, two months into the emergency people are discovering that every level of their government was utterly unprepared for a 21st century public health crisis that wasn’t just foreseeable but inevitable. The precursors were SARS, H1N1, and avian flu. To not have seen something like coronavirus coming amounts to willful ignorance bordering on criminal negligence.

Of course the very officials and bureaucrats whittling away at civil liberties (while continuing to collect their taxpayer funded paychecks) are the ones who failed to prepare in the first place. In late January the Centers for Disease Control and Prevention – an agency whose $5 billion annual existence is predicated on preparing for and responding to public health issues – was still reassuring Americans that coronavirus was not transmittable between people. In March, with the crisis in full bloom, the agency still was fumbling its response. So much for disease control and prevention.

The political class is proving that while they can’t contain a virus they can extinguish constitutional rights. Much easier for a governor or mayor to sign a one-page order written by staffers than to spend the months and years necessary to actually prepare for something like this in the first place. Much easier to bloviate at daily pressers than to devise a strategic response.

The price of their incompetence has been lost lives, lost jobs, lost wages, and lost futures. These countless individual tragedies have been compounded by a sudden, massive deprivation of civil liberties. In places like New York and California the deprivation has become virtually absolute.

With few exceptions people have accepted the diminution of cherished rights willingly, voluntarily, even enthusiastically. They’ve surrendered rights for which millions sacrificed, fought, and died over the course of two and a half centuries at the behest of a political class that in the best of times can’t keep the streets paved.

Virtually no one blinked last Thursday when Los Angeles Mayor Eric Garcetti announced the city was closing all public parks for 36 hours, from Saturday afternoon to Monday morning, specifically to prevent people from gathering to celebrate Easter mass. The order effectively suspended two of the Constitution’s most precious protections, freedom of religion and assembly. Churches, of course, have been closed for weeks already.

People convening for a few hours to observe the holiest day of the Christian calendar warranted draconian measures and the full force of the state’s police powers to suspend core constitutional rights. Mr. Garcetti said, “I know this is a time of the year when many of our families and friends celebrate Easter by getting together outdoors –– and we just can’t take any chances right now.”

Yet he’s been taking chances with tens of thousands of homeless people since the crisis started, which in turn threatens the well-being of every single Angeleno. Make no mistake: Mr. Garcetti, like California’s entire political class, has concluded that homelessness, prostitution, drug dealing, addiction, crime, and public disturbances are acceptable exceptions to self isolation orders.

As millions of Angelenos shelter in place public parks have remained havens for homeless, vagrants, and criminals. Dealers openly sell meth, opiods, fentanyl, even home-brewed liquor without the slightest fear of consequence. Open-air drug deals go down in plain view of law enforcement. The All Aspect Report observed a resident of L.A.’s “A Bridge Home” shelter in Venice yesterday dancing on a sidewalk screaming, “It’s corona time, baby!” A few minutes later shelter staff allowed him back inside, no questions asked.

Homeless people gather in close quarters and in small and large groups without any law enforcement response. Quite the opposite, in fact: The Los Angeles City Council ordered that illegal encampments and entire tent cities will remain in place 24 hours a day, indefinitely. Council’s tortured logic is that homeless people are safer in filthy, vermin infested, crime ridden camps. In reality they’ve simply given up. San Francisco quickly followed suit. Meanwhile, across California politicians’ bold plans to house tens of thousands of homeless in hotels, motels, and recreation centers has quietly fallen apart. And just today the Los Angeles Times reported that the LAPD has all but ceased enforcement of sex trafficking laws, exposing the most vulnerable girls and women to new levels of danger and exploitation.

In one of the more infamous examples a man paddle boarding near the Malibu Pier was arrested two weeks ago for refusing to comply with orders that he leave the water. While the man behaved foolishly in defying law enforcement’s orders, it beggars belief that a single individual in the middle of the breakers required two lifeguard boats, a half dozen Sheriff’s cruisers, and two dozen personnel. He was literally the only person for hundreds of yards in any direction.

When people (again, foolishly) crowded L.A. County hiking trails last month the official response was to close all trails completely. Instead of such drastic measures perhaps some of those Sheriff’s deputies who spent time arresting an errant wave enthusiast could instead have been dispatched to enforce social distancing on trails. Then again that would require planning, strategy, and creative thinking, all of which are in dangerously short supply among our city’s and state’s electeds. Last weekend the Santa Cruz sheriff’s department handed out $7,000 worth of fines to a group of young people whose offense against the state consisted of purchasing beer.

Meanwhile, the county is dispatching enforcers to small businesses perceived as violating shut-down orders. Most of these visits are unannounced. The owners of a small print shop in north L.A. report that they have received visits on consecutive days, first by the Sheriff’s department and then by an city official who refused to identify himself (he also claimed to be “out of business cards”) but who left orders from the county health department related to the shop’s operations. The owners, who asked not to be identified for fear official retaliation (let that sink in, by the way), have been keeping the shop open to serve residents seeking, among other things, to apply for relief or small business loans under the CARE Act. If that isn’t an essential service it’s hard to imagine one, but it remains to be seen whether they will be allowed to continue.

People need to be demanding answers from the political class. Why are hundreds of thousands of vagrants and criminals allowed to roam free, their lives virtually unchanged, while everyone else is subject to virtually unlimited control? Why are some kids buying beer considered a greater threat than vagrants assaulting women and dealing drugs?

Stripped to the essentials government’s purpose is protect the populace. At every level, government has failed. Instead of protecting the people the political class is stripping them of basic civil liberties. A government that prioritizes prosecuting surfers and beer drinkers over pimps and drug dealers is a government adrift.

The most egregious of the violations is the virtual suspension of due process. Stay at home orders, orders banning business from operating, and orders forbidding people from assembling amount to an unprecedented intrusion by government into every single American’s life and an unprecedented use of the state’s powers – and it’s happened with zero due process. The many constitutional infringements include:

• First Amendment. Stay-at-home orders by definition violate the First Amendment’s protection of peaceable assembly. In a very real way that right has all but ceased to exist. Meanwhile, city and state governments nationwide banned religious gatherings over Easter weekend. Some places like Los Angeles banned all gatherings, while states like Kansas banned more than 10 people. Regardless these orders are fundamental violations of the constitutional protections of religious freedom.
• Fourth Amendment. State and local officials across the country are urging people to report violations of stay at home orders to law enforcement. Last Tuesday Los Angeles mayor Eric Garcetti openly encouraged Angelenos to “snitch” on each other, and this week Riverside County released and promoted a mobile app that allows neighbors to anonymously report one another. As the print shop case proves in stark relief officials have abandoned standards of probable cause or even reasonable suspicion, in violation of the Fourth Amendment’s prohibition of unreasonable searches and seizures.
• Fifth and Fourteenth Amendments. Due process has virtually ceased to exist. Extraordinary government orders have deprived tens of millions of their civil liberties, not to mention their livelihoods, without notice, an opportunity to be heard, nor a chance to rebut the justifications behind the orders. Procedural due process is the guarantee of a fair legal process when the government tries to interfere with a citizen’s protected interests in life, liberty, or property. Substantive due process is the guarantee that the government will not encroach on fundamental rights of citizens. Government at all levels has abandoned these precious guarantees.
• Fifth Amendment, part 2. Official orders also are depriving millions of Americans of business income without any compensation. The shuttering of millions of businesses amounts to the biggest de facto public taking in American history, which under the Fifth Amendment requires due process and just compensation. A twelve hundred dollar check doesn’t count.
• Sixth Amendment. Many official orders arguably are tantamount to criminal prosecutions. Shuttering a business, putting dozens or hundreds of people out of work, and destroying people’s life’s savings is a profound exercise of governmental police power. Every affected business owner is effectively presumed guilty. They have been given no opportunity to be heard, no trial by jury, no opportunity to present contrary evidence or witnesses, and no legal representation.
• Eighth Amendment. The Excessive Fines Clause prohibits fines that are “so grossly excessive as to amount to a deprivation of property without due process of law.” While stay at home and other orders aren’t strictly “fines,” they have the same cumulative effect: Forcing businesses to close amounts to a fine, because the order deprives them of normal income. Moreover, to the extent the orders are enforced by government’s police power they may violate the amendment’s prohibition of cruel and unusual punishment.
• Fourteenth Amendment. Again, many of the orders issued at the federal, state, county, municipal, and local levels have deprived Americans of fundamental rights. No one has been given notice or an opportunity to be heard.

It remains to be seen how many of these new restrictions will become permanent or semi-permanent. Yesterday Governor Gavin Newsom justified more stay-at-home orders by remarking, “Not only is the past not equal to the future, but we also have to recognize that we are not just along for the ride as it relates to experiencing the future. The future happens inside of us.”

If you can translate that word salad, kindly email us. In particular, if you’ve ever felt the future happening inside you, we would love to hear about it.

In the meantime, despite Mr. Newsom’s incoherence, one thing has become abundantly clear: We have always been at war with coronavirus.