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Federal judge rules Pennsylvania governor’s coronavirus restrictions unconstitutional
“Even in an emergency, the authority of government is not unfettered,” District Court Judge William Stickman wrote in a decision Monday. “The liberties protected by the Constitution are not fair-weather — freedoms in place when times are good but able to be cast aside in times of trouble
...
Stickman added that the “solution to a national crisis can never be permitted to supersede the commitment to individual liberty.”

Citing the 1st and 14th, we see groundwork laid for what future litigation?
Will Pennsylvania businesses prevail seeking civil damages?
https://www.washingtonexaminer.com/news ... 2N0oxgL3eM

subgenius wrote: ↑

Mon Sep 14, 2020 11:32 pm

Federal judge rules Pennsylvania governor’s coronavirus restrictions unconstitutional
“Even in an emergency, the authority of government is not unfettered,” District Court Judge William Stickman wrote in a decision Monday. “The liberties protected by the Constitution are not fair-weather — freedoms in place when times are good but able to be cast aside in times of trouble
...
Stickman added that the “solution to a national crisis can never be permitted to supersede the commitment to individual liberty.”

Citing the 1st and 14th, we see groundwork laid for what future litigation?
Will Pennsylvania businesses prevail seeking civil damages?
https://www.washingtonexaminer.com/news ... 2N0oxgL3eM

“solution to a national crisis can never be permitted to supersede the commitment to individual liberty.”

I think this is a fascinating issue. Two things become conflated: Biology and Politics.

Covid-19 will kill in excess of 200,000 Americans this year. This year will have more fatalities from Covid-19 than ANY year of American Warfare. So set the stage with the fact that, with respect to fatalities, this is the deadliest enemy the United States has ever faced. No enemy has ever killed so many Americans many in such a short period of time.

We are in a war against Covid-19. When the U.S. is at war against a political enemy, the national crisis supersedes individual liberty in the form of a draft. We ask our young people to give up years, and their very lives, to fight an enemy. In the war against a pandemic, every human being is a soldier, whether they want to be or not. By virtue of the fact that you are part of the human genome, you have been drafted.

Why do I say you've been drafted? Because if you don't deny the enemy your body, then your body becomes a weapon of the enemy. There are no neutrals in this war. In the time of a Pandemic, we have obligations that are biological, not political. The virus doesn't give a flying fork about politics. It doesn't want your country. It wants your DNA.

We have special rules regarding civil liberties with regards to biology. A quarantine is a violation of your individual liberty. Our well being as human beings is predicated on a healthy human genome. In times of a pandemic, the laws of biology will be followed. If a person has the Corona virus and refuses to wear a mask, he can sentence others to death.

Oliver Wendell Holmes said your right to swing your arm while walking down the street ends where the other man's nose begins. With respect to Covid-19, the consequence is not a bloody nose, but perhaps multiple deaths.

MeDotOrg wrote: ↑

Wed Sep 16, 2020 8:21 am

subgenius wrote: ↑

Mon Sep 14, 2020 11:32 pm

Federal judge rules Pennsylvania governor’s coronavirus restrictions unconstitutional
...

“solution to a national crisis can never be permitted to supersede the commitment to individual liberty.”

I think this is a fascinating issue. Two things become conflated: Biology and Politics.

Conflated may not be the most accurate description since they are not mutually exclusive in this context.

Covid-19 will kill in excess of 200,000 Americans this year. This year will have more fatalities from Covid-19 than ANY year of American Warfare. So set the stage with the fact that, with respect to fatalities, this is the deadliest enemy the United States has ever faced. No enemy has ever killed so many Americans many in such a short period of time.

Interesting. But to make it apples to apples you would need to count not just deaths on battlefield but also anyone who dies that was related to a soldier who died, even if they did not test positive for battlefield.

We are in a war against Covid-19. When the U.S. is at war against a political enemy, the national crisis supersedes individual liberty in the form of a draft. We ask our young people to give up years, and their very lives, to fight an enemy. In the war against a pandemic, every human being is a soldier, whether they want to be or not. By virtue of the fact that you are part of the human genome, you have been drafted.

Notwithstanding the hyperbole, great example of things being conflated.

Why do I say you've been drafted? Because if you don't deny the enemy your body, then your body becomes a weapon of the enemy. There are no neutrals in this war. In the time of a Pandemic, we have obligations that are biological, not political. The virus doesn't give a flying fork about politics. It doesn't want your country. It wants your DNA.

mk. but the hyperbole isn't rational.

We have special rules regarding civil liberties with regards to biology. A quarantine is a violation of your individual liberty. Our well being as human beings is predicated on a healthy human genome. In times of a pandemic, the laws of biology will be followed. If a person has the Corona virus and refuses to wear a mask, he can sentence others to death.

Yes, except we don't call them "rules", we call them laws. And we have a special part of society that "judges" the application of those laws.

Oliver Wendell Holmes said your right to swing your arm while walking down the street ends where the other man's nose begins. With respect to Covid-19, the consequence is not a bloody nose, but perhaps multiple deaths.

So if i test negative for Covid then i am not swinging my arm at all. Ergo, the ruling above.
But let us pretend your OWH quote is reasonable in this situation. The Pennsylvania governor walked right down main street swinging his arm into the nose of every business owner, except for the noses he chose to not hit.
Ergo, the ruling above.

The rhetoric Subby quoted from the opinion is more extreme than the substance of the opinion. I think it raises some important constitutional issues and makes some very good arguments. I don't think the executive or judicial branches get to toss the constitution in the trash when there is an emergency. Part of the problem is that our constitutional jurisprudence on this issue is over 100 years old. Since we last dealt with a pandemic, the Supreme Court has devised a whole tiered system of scrutiny -- essentially, a system that determines how much latitude the government has in different circumstances: rational basis, intermediate scrutiny, and strict scrutiny. The fundamental issue in the case is whether this even more deferential 100 year old standard still applies.

The old cases involved quarantines. Quarantines are how public health officials tell us to handle epidemics. We did that with the cruise ships. We started to do that with all citizens who had been in and around Wuhan. I remember reading a news article talking about how a facility in a town near Seattle was being ready as a quarantine facility for Americans returning from China. At some point, that got changed to temperature checks and letting people go. I'd love to know how that decision was made.

Part of why quarantine passes constitutional muster is that only the liberty of people who are sick or exposed is affected, and the time is a fixed duration. That's the most effective way to protect the public health with the minimum restriction of liberty. A lockdown, on the other hand, curtails everyone's freedom. For the courts, it's something brand new that courts have not had to examine in the past.

The court recognized the necessity of taking extreme measures back in the spring, and did not rule on the constitutionality of the initial lock down. But it did look at reopening plans and found some of the restrictions unconstitutional. The distinction it drew was the fact that governments had time to make reopening plans and had more information about the nature of the disease. One of the issues was placing a hard cap on the size of gatherings, including political gatherings, but allowing businesses to operate at a percentage of their maximum occupancy under the fire code. So, the same size "gathering" would be legal at Wal-Mart, but would be illegal at a political rally, even if the rallygoers were masked and appropriately socially distanced. It didn't help that the state granted permission for a large festival to occur that exceeded the cap. Constitutionally, that's backwards. Political speech gets the highest level of protection, while commercial activities get a lower level of protection.

What the opinion actually says in substance is that the government does have latitude to deal with emergencies, but it can't be arbitrary and it has to do what is necessary in a non-arbitrary way that minimizes the restriction of constitutional freedoms. The federal courts will continue to struggle with where the limits on governmental limits on constitutional rights in a pandemic until the Supreme Court clarifies how the old pandemic cases fit with modern constitutional analysis.

I would accept going straight to herd immunity if we could be assured the people that would die are the idiots pushing to kill millions in order to achieve herd immunity.