The COVID-19 pandemic (war against humanity) sweeping our country and the world respects no borders or state lines. It has killed almost 200,000 of our fellow Americans and has given little indication of relenting in the foreseeable future. To fight this war and reduce the number of inevitable casualties our national, state and local governments have instituted rules and regulations intended to accomplish that purpose.
We have closed our international borders to certain noncitizens/nonresidents who present great health risks to our people. We have ordered the quarantine of those within our borders who are known to be infected. Federal, state and local governments have instituted closures of certain public and private accommodations and businesses. They have also instituted other rules designed to limit the spread of this highly contagious and lethal virus — e.g., social distancing and the wearing of protective gear.
The physical, emotional and economic toll on our people has been challenging to say the least. Most everyone has their own story to tell and those stories can be heartbreaking and devastating. Understandably, some have protested these actions out of frustration; others out of anger and resentment of any governmental interference with their personal life choices. We often see news accounts of those complaining that their “constitutional rights” are being violated by an oppressive government. To this latter group, I would respectfully disagree.
Over 100 years ago, the Commonwealth of Massachusetts established a law which provided that if the board of health of a city or town found it necessary for the public health or safety, they could require and enforce the vaccination and re-vaccination of all the inhabitants of the city or town and to do so without cost to the individual inhabitant. The City of Cambridge adopted a regulation consistent with this general law in order to combat the then prevalent small pox disease. The law was challenged on constitutional grounds — asserting that such a law contravened the Preamble to the Constitution as well as the rights of the individual secured by the Fourteenth Amendment. (Jacobson v. Massachusetts (1905) 197 U.S. 11).
The High Court rejected those challenges. An excerpt from its opinion might serve to enlighten as well as inform those who believe our current government is without constitutional authority to impose rules and regulations to combat COVID-19.
“[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” (195 U.S. at pp. 25-26, italics added.)
The Jacobson case was recently cited with approval by the Supreme Court in rejecting a challenge to state imposed restrictions on public gatherings and limitations placed on attendance at houses of worship and other closed environments put in place by California in response to covid19. (See South Bay Pentecostal Church v. Newsom, Governor of California (2020) 590 U.S. ___ [#19A1944; 5/29/20].)
Our Constitution does not protect individuals who threaten others with lethal force.
Edward H. Schulman is a resident of Kailua-Kona.