[zaroth]

> They aren't constitutional rights violations by definition.

IANAL, but pretty sure that’s not how it works. Articles incorporated against the State prevent the State from passing laws that violate the Article.

The Attorney General specifically has told the DOJ to be on the lookout for over-reach by the States in these lockdown orders.

[krapp]

>IANAL, but pretty sure that’s not how it works. Articles incorporated against the State prevent the State from passing laws that violate the Article.

IANAL either, but here are examples of legal decisions and opinions by the various courts including the Supreme Court which appear to disagree with you[0-2], as well as some articles [3-4] which provide a basis for a legal argument that states have the right to restrict the movements of citizens in the name of public safety, including the imposition of quarantine measures, and that these powers are not a violation of the constitution. What is not constitutional is a national quarantine enacted by Congress.

>The Attorney General specifically has told the DOJ to be on the lookout for over-reach by the States in these lockdown orders.

Indeed, here's an article on that[5] with the following quoted from a memo by AG Barr himself:

    "If a state or local ordinance crosses the line from an appropriate 
    exercise of authority to stop the spread of COVID-19 into an overbearing 
    infringement of constitutional and statutory protections, the Department 
    of Justice may have an obligation to address that overreach 
    in federal court."

So even from the AG's own pen, we have the admission that states do have appropriate authority in this case, although that authority is limited and can be abused. This is a different and more nuanced argument than the one apparently made by GP, that the first amendment prevents states from having any such authority at all. If that were the case, the AG wouldn't be telling the DOJ to be on the lookout for something that already exists in plain sight.

[0]https://casetext.com/case/best-v-st-vincents-hospital

[1]https://scholar.google.com/scholar_case?case=538811625763396...

[2]https://supreme.justia.com/cases/federal/us/441/418/

[3]https://nationalinterest.org/blog/buzz/yes-all-coronavirus-c...

[4]https://www.courier-journal.com/story/news/2020/04/19/protes...

[5]https://nypost.com/2020/04/28/barr-tells-prosecutors-to-look...

[zaroth]

You started with "these aren't constitutional rights violations by definition" which is specifically what I took issue with, and now moved into explaining why you believe these measures may survive strict scrutiny.

You can certainly make an argument that these measures satisfy "strict scrutiny" as being both necessary, as well as the least restrictive means possible to accomplish the goal. I merely hope we can agree on the correct framework for evaluating whether State and Local quarantine measures are constitutional or not.

To be clear, I believe any State or Local regulation limiting freedom of assembly (which necessarily involves freedom to assemble publicly) whether it be for health reasons or otherwise, has to pass "strict scrutiny" which is the legal term for how high the bar is set to prove the measure is Constitutional. In these cases it is incumbent on the government to prove the measure should be deemed Constitutional, which is flipped from how it normally is.

To quote Wikipedia;

1. that the law is necessary to a "compelling state interest";

2. that the law is "narrowly tailored" to achieving this compelling purpose;

3. that the law uses the "least restrictive means" to achieve the purpose.

The legal cases you link to are specific actions taken against individuals. An executive order ordering the quarantine of a single person. A mental health examination of a single person. None of them involve blanket orders against large populations.

The news articles are editorials, including the following quotes;

> "Pandemic is not a magic word that instantly negates all individual constitutional rights," said Jonathan Turley, a law professor at George Washington University. "A pandemic gives states a compelling state purpose in the imposition of restrictions. But when the state denies or restricts constitutional rights, it must satisfy a balancing test." The orders can be challenged on the basis that they're overly broad, he said, or that they don't properly weigh the individual restrictions against public health threats. Turley pointed to Michigan, a state he thinks has an order broad enough that it could be challenged.

[krapp]

>You started with "these aren't constitutional rights violations by definition" which is specifically what I took issue with, and now moved into explaining why you believe these measures may survive strict scrutiny.

I used the latter as a means of criticizing the former - if these measures were unconstitutional by definition, it would be impossible for them to survive strict scrutiny even in theory. Even AG Barr's memo concedes their legality, while warning about the potential of abuse.

Otherwise I think we're in violent agreement.

[zaroth]

I can agree with: "These aren't ipso facto constitutional rights violations."

Totally disagree with: "By definition, these aren't constitutional rights violations."

So I think we do probably violently agree, and I probably misinterpreted your: "These aren't constitutional rights violations by definition." statement.

Another way to think about it is that they obviously do violate Constitutional rights, but this is actually allowed only under very specific and limited circumstances, of which COVID may in fact be one of, but such a thing has never been tested in front of the Supreme Court as far as I'm aware.

[krapp]

I think so, the first statement is what I meant. Today doesn't seem to be my day for getting points across.

[Fjolsvith]

When the issue goes to the SCOTUS, I'm sure that parallels will be drawn to how our society manages restricting vulnerable populations versus restricting all population.

An example would be how children aren't allowed in establishments whose sole purpose is to sell adult restricted items like alcohol or pornography.

[krapp]

Everyone is vulnerable during a pandemic though, and the US is suffering from the effects of a lack of critical foresight and initial preparedness. I have no doubt at all that this is going to wind up in the Supreme Court but I don't think it's a cut and dry case.

[Fjolsvith]

For the first time in history, everyone is vulnerable during a pandemic? Not so.

For the first time in history, everyone is locked down during a pandemic? Yes.