Title : "The pandemic has resulted in previously unimaginable restrictions on individual liberty," said Justice Samuel Alito...
link : "The pandemic has resulted in previously unimaginable restrictions on individual liberty," said Justice Samuel Alito...
"The pandemic has resulted in previously unimaginable restrictions on individual liberty," said Justice Samuel Alito...
... in the keynote address at the national convention of the Federalist Society. The convention took place on line, which means we get video of something that ordinarily would not be recorded:I found a transcript of the speech at Reason. Excerpt:
The pandemic has obviously taken a heavy human toll... The pandemic has resulted in previously unimaginable restrictions on individual liberty.... [W]e have never before seen restrictions as severe, extensive and prolonged as those experienced, for most of 2020.
For brevity, I'm editing out a lot of cautioning about not taking this the wrong way. He's cushioning these remarks. Don't think he's not sympathetic to the victims of the disease.
Think of all the live events that would otherwise be protected by the right to freedom of speech, live speeches, conferences, lectures, meetings, think of worship services, churches closed on Easter Sunday, synagogues closed for Passover on Yom Kippur War. Think about access to the courts, or the constitutional right to a speedy trial.... [T]he COVID crisis has served as a sort of constitutional stress test. And in doing so it has highlighted disturbing trends that were already present before the virus struck.
One of these is the dominance of lawmaking by executive. Fiat rather than legislation. The vision of early 20th century progressives and the new dealers of the 1930s was the policymaking would shift from narrow minded elected legislators, to an elite group of appointed experts in a word, the policymaking would become more scientific. That dream has been realized to a large extent. Every year administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarfs the statutes enacted by the people's elected representatives. And what have we seen in the pandemic sweeping restrictions imposed for the most part, under statutes that confer enormous executive discretion?
We had a covid related case from Nevada. So I will take the Nevada law as an example. Under that law, if the governor finds that there is, quote, a natural technological or manmade emergency, or disaster of major proportions, the governor can perform and exercise such functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population. To say that this provision confers broad discretion would be an understatement. Now, again, let me be clear, I'm not disputing that broad wording may be appropriate in statutes designed to address a wide range of emergencies, the nature of which may be hard to anticipate, and I'm not passing judgment on this particular issue.
I want to make two different points.
First, what we see in this statute, and and what was done under it is a particularly developed example of where the law in general has been going for some time, in the direction of government by executive officials, who were thought to implement policies based on expertise — and in the purest form, scientific expertise.
Second, laws giving an official so much discretion can of course, be abused. And whatever one may think about the COVID restrictions, we surely don't want them to become a recurring feature after the pandemic has passed. All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes....
[W]hen the constitutionality of COVID restrictions has been challenged in court, the leading authority cited in their defense is a 1905 Supreme Court decision called Jacobson v. Massachusetts. The case concerned an outbreak of smallpox in Cambridge, and the Court upheld the constitutionality of an ordinance that required vaccinations to prevent the disease from spreading.... [The Court] rejected a substantive due process challenge to a local measure that targeted a problem of limited scope. It did not involve sweeping restrictions imposed across the country for an extended period. And it does not mean that whenever there is an emergency, executive officials have unlimited unreviewable discretion.
Just as the COVID restrictions have highlighted the movement toward rule by experts, litigation about those restrictions has pointed up emerging trends in the assessment of individual rights.
This is especially evident with respect to religious liberty. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.... When a Supreme Court decision called Employment Division v. Smith cut back sharply on the protection provided by the Free Exercise Clause of the First Amendment. Congress was quick to respond. It passed the Religious Freedom Restoration Act, RFRA, to ensure broad protection for religious liberty. The law had almost universal support...
Over the summer, the Supreme Court received two applications to stay COVID restrictions that blatantly discriminated against houses of worship, one from California, one from Nevada. In both cases, the court allowed the discrimination to stand. The only justification given was that we should defer to the judgment of the governors because they have the responsibility to safeguard the public health.
Consider what that deference meant in the Nevada case. After initially closing the state's casinos for a time the governor opened them up and allowed them to admit admit 50% of their normal occupancy. And since many casinos are enormous, that is a lot of people. And not only did the governor open up the casinos, he made a point of an inviting people from all over the country to visit the state. So if you go to Nevada, you can gamble, drank and attend all sorts of shows. But here's what you can't do. If you want to worship and you're the 51st person in line, sorry, you are out of luck. Houses of worship are limited to 50 attendees. The size of the building doesn't matter. Nor does it matter if you wear a mask and keep more than six feet away from everybody else. And it doesn't matter if the building is carefully sanitized before and after a service.
The state's messages this forget about worship and head for the slot machines, or maybe a Cirque du Soleil show.
Now deciding whether to allow this disparate treatment should not have been a very tough call. Take a quick look at the Constitution. You will see the Free Exercise Clause of the First Amendment which protects religious liberty, you will not find a craps clause or a blackjack clause or a slot machine clause.
Nevada was unable to provide any plausible justification for treating casinos more favorably than houses of worship. But the court nevertheless deferred to the governor's judgment, which just so happened to favor the state's biggest industry and the many voters it employs....
Support for freedom of speech is also in danger. And COVID rules have restricted speech in unprecedented ways. As I mentioned, attendance at speeches, lectures, conferences, conventions, rallies, and other similar events has been banned or limited. And some of these restrictions are alleged to have included discrimination based on the viewpoint of the speaker.... Even before the pandemic, there was growing hostility to the expression of unfashionable views.... You can't say that marriage is the union between one man and one woman. Until very recently, that's what the vast majority of Americans thought. Now it's considered bigotry...
Of course, the ultimate second tier constitutional right in the minds of some is the Second Amendment right to keep and bear arms....
Thus articles "The pandemic has resulted in previously unimaginable restrictions on individual liberty," said Justice Samuel Alito...
that is all articles "The pandemic has resulted in previously unimaginable restrictions on individual liberty," said Justice Samuel Alito... This time, hopefully can provide benefits to all of you. Okay, see you in another article posting.
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