[Seenso]

> Or just reroute off an interstate onto a different road between states, which is a lot more likely.

If you're implementing a lockdown, you'd close more than just the interstates for that exact reason. At a minimum, you'd probably want manned checkpoints on the interstates, state highways, major county roads, and obvious choke points like bridges; and unmanned barriers on the minor roads.

> Then somebody takes the whole thing to the courts, and the courts tell the Feds to knock it off and let people through because they are violating the law of the land.

I'm skeptical that the courts would act as you assume when "the public Safety may require it."

Also, who says "the feds" have to implement it? It's my understanding that state authorities have broad powers to combat epidemics, too. They're also the ones with the manpower to implement lockdowns.

[jandrewrogers]

The US Supreme Court has consistently affirmed that Americans have a right to freely travel by the common conveyances of the day, and this right cannot be restricted without due process. The government would be required to prove that a specific person has a high probability of harming the public before it would pass judicial muster outside of very narrow contexts that won't apply to most Americans. A vague "because you might have coronavirus" has the same weight as "because you might be a terrorist".

As an example, this is one of primary legal arguments for why the No Fly List is unconstitutional.

[Seenso]

But there's a nuance there that I think needs clarification: is the right to not be discriminatorily singled out or a right to be provided access to infrastructure in all circumstances?

I think the right has to be the former, and general, nondiscriminatory restrictions would be OK. I posted in another comment that state governments regularly shut down roads and other infrastructure due to public safety concerns. I think closing roads in a lockdown could be done under similar authority.

The latter, to be provided access to infrastructure in all circumstances, is kinda nonsensical when you think about it. For instance, it would mean everyone had a constitutional right to drive through roads that have been closed for construction, which would be ridiculous.

[jandrewrogers]

No, this is not correct. There are only allowances for non-discriminatory "reasonable restrictions" such as closing roads during unsafe road conditions. There is no general "public safety" loophole that enables the Federal government to abrogate well-established rights, there must be due process for each individual so-deprived. This is essentially settled law in the US. And for good reason: it would give the government carte blanche to abrogate any Constitutional right using a nebulous notion of public safety as a fig leaf.

It is the same reason that courts have consistently rejected public safety arguments for depriving Americans of firearms without due process, as well as de facto deprivation attempts via regulatory technicalities like a million dollar tax on guns or banning ammunition.

[Seenso]

> No, this is not correct. There are only allowances for non-discriminatory "reasonable restrictions" such as closing roads during unsafe road conditions. There is no general "public safety" loophole that enables the Federal government to abrogate well-established rights, there must be due process for each individual so-deprived.

Do you have a citation for that?

If you're correct, this interpretation is to be verging on Constitution-as-a-suicide-pact territory, and the Constitution should be amended or the opinion changed to correct the flaw, and allow suspension of those rights during serious epidemics.

[SllX]

If there is ever an epidemic so bad that the Constitution becomes a suicide pact, then it would probably be cast aside in the name of survival, but the United States of America would cease to be a legal entity in its current form and we’ll have much bigger problems.

https://usconstitution.net/

Here’s a link to the Constitution, you can read it back to front. Congress writes Federal law, you can read Article I to confirm that much, and Article II and III to confirm that the President and the Courts do not.

You can then review Article I to confirm the limits of Congress’ powers, and then Amendments I through XXVII to figure out what changed. For example, the first five words of the First Amendment is “Congress shall make no law”, and the subsequent passage outlines the various rights that Congress shall make no law a about. It doesn’t say anything like “except in public emergencies” or “except if aliens invade” or “except unless they really really want to.” All case law related to the first amendment is related to what the press, association, peaceably to assemble, petition, redress, grievances, establishment of religion, the exercise of religion and so on and so forth even mean.

What it comes down to is, back to front, every right listed within the Constitution and even some that are not listed at all is considered a natural right, not a civil right, not an insert-descriptor-here right and it is outside the authority of the Congress, and by extension the enforcers and interpreters of the laws which Congress passes to curtail or abridge these with two notable exceptions in habeas corpus when suspended and in conviction of a crime after due process has been established and a sentence passed.

You were born with these rights and you will die with them as far the Constitution is concerned, and since we practice Constitutional supremacy rather than say, Parliamentary supremacy, it’s not within the powers of Congress, the President, the Courts or any other jurisdiction subject to the US Constitution to throw their hands up, squint really hard and say “no, not really, not in circumstances X, Y, and Z.”

[jandrewrogers]

This argument has been applied to many rights in the Constitution, and the courts have consistently held that any right that can be cast aside just because the government asserts an "emergency", regardless of type, is effectively a right that does not exist. The job of the courts is not to minimize risk to the population but to preserve their rights, and they mostly do that.

As a practical matter, this is on the right side of history. There are myriad examples of governments stripping basic rights from the population in the name of public safety or some other contrived (or real) emergency. It virtually always ends poorly for the population because governments consistently abuse this latitude when expedient for whoever is in power.

Would you have the courts remove all rights from anyone the government deems a "terrorist"? Or give Trump the power to suspend elections because pandemic/reasons? It is exactly the same argument. Giving people strong rights carries risks but also powerful benefits.

[Seenso]

> This argument has been applied to many rights in the Constitution, and the courts have consistently held that any right that can be cast aside just because the government asserts an "emergency", regardless of type, is effectively a right that does not exist.

That's not my argument, though. I'm arguing against a kind fundamentalist absolutism that doesn't even allow for narrow, reasonable, and necessary exceptions in any circumstances. Applied to the First Amendment, that logic says you should be able to yell fire in a crowded room or libel someone, yet those things are prohibited and we haven't found ourselves in a dystopia on account of that. The Constitution itself even has such exceptions written into it, and the founders recognized their necessity even when not enumerated.

I get where you're coming from, but I no longer believe that kind of absolutism is a protection from tyranny. Letting an undetected Typhoid Mary freely travel the country in the most convenient ways possible isn't actually going to do anything to prevent Trump from suspending elections or declaring Joe Biden a terrorist, if he likes, it's just going get a lot of people sick.

[chimeracoder]

> Also, who says "the feds" have to implement it? It's my understanding that state authorities have broad powers to combat epidemics, too. They're also the ones with the manpower to implement lockdowns.

The authority to restrict travel into a state (from an adjacent state) unambiguously lies with the federal government, under even the narrowest possible interpretation of the Commerce Clause.

[Seenso]

> The authority to restrict travel into a state (from an adjacent state) unambiguously lies with the federal government, under even the narrowest possible interpretation of the Commerce Clause.

Honestly, the scenario I had in mind was intrastate travel restrictions, especially around cities.

[chimeracoder]

> Honestly, the scenario I had in mind was intrastate travel restrictions, especially around cities.

Also covered by the Commerce Clause, since 1937.

[Seenso]

> Also covered by the Commerce Clause, since 1937.

So you're saying the commerce clause requires states to keep intra-state transportation infrastructure open, regardless of the public safety risk? That's unbelievable, since that infrastructure is regularly closed for public safety reasons (e.g. closing roads during blizzards):

https://www.mprnews.org/story/2019/12/01/blizzard-closes-hig...:

> To the west, the Minnesota Department of Transportation closed a stretch of Interstate 35 between Duluth and Cloquet. The Cloquet Police Department posted a photo of vehicles stranded along Highway 33 in that city late Saturday.

https://apnews.com/25d827c21bff49bba79339c51a6f3407:

> The Nebraska State Patrol has closed Interstate 80 from the Wyoming border east to North Platte as well as all state highways in the Nebraska Panhandle as a late-winter blizzard swept into the state.