How Can Government Suspend Constitutional Rights?

What does it take to suspend Constitutional rights?

It’s hard to imagine anyone who seriously thinks it’s OK to simply tear up the Constitution.

At the same time most reasonable people agree something had to be done to contain the spread of the Covid-19 virus.

Dictators face little trouble ordering people around.

But “stay at home” orders and other shut-down directives represent an extreme in the U.S.

Courts scrutinize orders to suspend or infringe basic civil liberties. They measure the terms of such orders against the extent of an emergency.

When Courts Say it’s OK to Suspend Constitutional Rights

Hurricane Andrew bulldozed through Southern Florida in August, 1992.  The violent storm left a path of destruction: homes, businesses, roads, power lines and communication networks.  Officials imposed a 7 PM to 7 AM curfew to address looting and other civil unrest.  Even though the hours of the virtual “stay at home” order were relaxed somewhat, people objected to being commanded to remain inside.

In upholding the curfew the 11th Circuit Court of Appeals held that authorities could impose such restrictions.  The court in Avino v. Smith limited it’s review to two factors.  First, did officials act in good faith?  Second, did facts support the decision that was necessary to maintain order?

In an emergency situation, fundamental rights such as the right of travel and free speech may be temporarily limited or suspended.

Smith v. Avino, 91 F.3d 105, 109 (11th Circuit Court of Appeals, 1996)

Notably some wiggle room existed in that case.  A strict reading of the Florida restrictions precluded any and all travel. But the court pointed out police were given discretion in arresting people who needed to drive for reasons including medical, work or school.

Riots & Looting

Constitutional rights “are not absolute” a California Appeals Court proclaimed.  The case involved a curfew imposed after riots and looting broke out in Los Angeles.  The court in that case went so far as to declare that the government does not have to make every effort to avoid trammeling constitutional rights.  The Government’s need to ensure community safety, the court held, can, in appropriate circumstances, outweigh an individual’s liberty interest.

The court held that the interest in safety outweighed key Constitutional rights to assemble, speak or travel in public areas so long as an imminent peril of violence exists.  The 1994 case, In Re Juan C., was based on the threat of violence and riots. Would that also apply in the face of a pandemic?

When Courts Warn its Not OK to Suspend Constitutional Rights

The Covid-19 pandemic presented a new threat.  Headlines focused on Wisconsin’s Supreme Court when it overturned Governor Tony Evers’ stay-at-home orders as unlawful and unenforceable.  The order confined people to their homes, banned travel and closed businesses. The court rejected that order, giving strength to those skeptical of government’s ability to suspend Constitutional rights.

“We further conclude that [the] order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02, upon which [the order] claims to rely.”

Wisconsin Legislature v. Secretary Palm, May 13, 2020, p. 33

However, the actual decision based its findings strictly upon procedural grounds.  In the case the executive branch failed to comply with that state’s statutory procedure setting up the framework for emergency orders.

In the final analysis free people demand their right to exercise constitutionally guaranteed liberties.  The law recognizes that officials trying to take those rights away, even in the face of an emergency, must comply with certain legal realities.

Orders must be limited in time and scope.  Executive orders must cite facts and not opinions about the emergency.  The tension between the unquestionable rights we’re all given, and government officials who claim to know better, requires balancing of the interests on both sides.

The author of this article, attorney Andrew D. Myers practices personal injury law in Massachusetts and New Hampshire.  The author also provides insight on other pressing legal issues.  This blog post represents an adaptation from attorney Myers’ column published in the Londonderry Times on May 28, 2020.

Photo Credit: Coronavirus by Nik Anderson on www.vperemen.com under license from Creative Commons.

Click the following links for previous blog articles on what officials did to the courts in the Coronavirus pandemic in Massachusetts and New Hampshire.

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