Many people have been complaining that shutting down businesses and quarantining people are unconstitutional.
Doesn’t the Constitution guarantee people freedom of assembly? Limiting how many people can be in a bar or at a wedding ceremony smacks of heavy handed government denying us of our rights, doesn’t it?
No, actually the policies that local and state governments are taking during the coronavirus pandemic are in line with powers that are reserved to the States and to the People by the Constitution. You are free to limit who goes into your home; city leaders can take emergency measures to limit who goes into the city or who goes out in public places; the states have similar powers.
Actions by state and local authorities in emergencies are broad and easily enforced by local police power. There is no immediate Federal authority that will gallop in to preserve what some consider their precious first amendment rights. Or their second amendment rights for that matter. Sure, these amendments are fully incorporated to the states. If somebody thinks the mayor or governor is being too tough on them, they have recourse to the courts.
Spreading sovereign power across levels of government to cities and states is what distinguishes our constitutional republic from countries that rule from the top down. Doing so is the ultimate protection of our individual liberties. At times it may appear cumbersome but any perceived inefficiencies help us avoid the efficiencies of a dictatorship.
States’ Rights Issue
It’s interesting to watch the President and his advisors try to implement a national policy to contain the coronavirus pandemic. Advocates of unlimited federal power complain that Trump should force the states to follow a national plan. They say he should have acted sooner. To them, deferring to the governors is evading his responsibility.
To his credit, the President has stated that it’s not the federal government’s responsibility to do everything, especially what the states have the authority to do for themselves. He is praising governors for doing their jobs.
Complaints are a continuation of the great Left-Right divide that is plaguing our body politic. Unfortunately this puts the Constitution in jeopardy as people call for nationalization of key segments of the economy. Single payer national healthcare and other socialist schemes of the Left ignore the Constitutional principles that have allowed our economy to be strong. As attractive as some of these proposals are to a large number of Americans, they clearly exceed the power of the federal government granted to it by the Constitution.
The Tenth Amendment was included in the Bill of Rights to define the balance of power between federal and state governments It says that the federal government has only powers specifically granted by the Constitution. These powers include the power to declare war, to collect taxes, to regulate foreign and to some degree interstate trade, among other enumerated powers.
The Constitution includes sections that seem to favor strong states’ rights, while others like the Commerce Clause have been used to claw back authority to the Federal Government. It grants Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Over time it has allowed the federal government to grow into a massive enterprise that creates money and dominates the world economy. It bribes the states with grants of money. Local and state entities are lulled into believing that they must follow every dictate of the Federal government if they want the money.
The Texas Example
The constitutions of the various states often mirror the U.S. Constitution by incorporating the enumerated rights of the people and the states. Here we will discuss Texas as an example. Check the constitution and laws in your own state to see if your governor and local officials are acting constitutionally.
During hurricane Katrina that hit New Orleans in 2005, a local authority tried to disarm the people. New Orleans police superintendent Edwin Compass called for blanket confiscation all firearms: “Only law enforcement are allowed to have weapons,” It was of course unconstitutional on both the state and federal level but there is little time to argue or go to court during an emergency. Actual instances of gun confiscation were fortunately limited and mostly carried out by inexperienced or out-of-state voluntary personnel.
That did not happen in Texas. After Katrina, then Governor Rick Perry pushed for a bill, S.B. 112, that was intended to protect the right to bear arms during a catastrophe. While the idea was noble, the bill unfortunately died in committee, not an uncommon fate in a state where “if it ain’t broke(n), don’t fix it” prevails.
Over the years Texas has enacted many laws to protect the people and their agricultural crops and livestock, including numerous laws and regulations that include emergency measures such as quarantine.
What about the coronavirus emergency? Can the state and cities enforce quarantines or isolation? What is the difference between quarantine and isolation?
Texas Home Rule Amendment to State Constitution
In 1912 Texas voters adopted the Home Rule Amendment to the state constitution and the legislature followed in the regular session in 1913 with the necessary enabling act.
A home-rule municipality may adopt rules to protect the health of persons in the municipality, including quarantine rules to protect the residents against communicable disease. The following are a few of the current enabling statutes.
Sec. 122.005. POWERS OF TYPE A GENERAL-LAW MUNICIPALITY.
(a) The governing body of a Type A general-law municipality may take any action necessary or expedient to promote health or suppress disease, including actions to:(1) prevent the introduction of a communicable disease into the municipality, including stopping, detaining, and examining a person coming from a place that is infected or believed to be infected with a communicable disease; (2) establish, maintain, and regulate hospitals in the municipality or in any area within five miles of the municipal limits; or in any area within five miles of the municipal limits; or (3) abate any nuisance that is or may become injurious to the public health.
(b) The governing body of a Type A general-law municipality may adopt rules: (1) necessary or expedient to promote health or suppress disease; or (2) to prevent the introduction of a communicable disease into the municipality, including quarantine rules, and may enforce those rules in the municipality and in any area within 10 miles of the municipality.
(c) The governing body of a Type A general-law municipality may fine a person who fails or refuses to observe the orders and rules of the health authority.
Penalties. A person commits an offense if the person knowingly fails or refuses to obey a rule, order or instruction of the department or an order or instruction of a health authority issued under a department rule and published during an area quarantine under this section. An offense under this subsection is a felony of the third degree. (Underline Ours)
Of course it is up to the local authorities to decide if they will charge and prosecute offenses, and it is up to a court to decide innocence or guilt. A felony, even a third degree felony is a serious matter.
Texas Response during Spanish Flu
Texas had thought through the pandemic thing in advance of the worldwide flu pandemic of 1918 by enacting Home Rule for cities, although the above statutes are the product of on-going revision and rendering into plain English since the 1960’s.
Today Texas has a population of almost 30 million people. The governor has responded logically and firmly during the coronavirus pandemic. In 1918, then Governor William P. Hobby was dealing with many problems including WW I, the flu epidemic, raids on the border with Mexico, just to name a few. During WW I, one-third of deaths in the US military was due to the Spanish flu, not being killed in battle.
When the Home Rule amendment was passed in 1912, the total population spread across a huge area stood at about four million. In 1910, San Antonio and Dallas were near 100,000 in population; Houston and Fort Worth were well over 50,000; and only 40 other cities in the state had more than 5,000 people. Laws regarding quarantine where highly focused on preventing diseases affecting agricultural produces like cotton but there were also strong provisions given to state health authorities to prevent the spread of disease within the human population.
There was no question that the state had authority to shut things down.
Art. 4419.  (1913)
General duties and powers.-The State Board of Health shall have general supervision and control of all matters pertaining to the health of citizens of this State, as provided herein. It shall make a study of the causes and prevention of infection of contagious diseases affecting the lives of citizens within this State and except as otherwise provided in this chapter shall have direction and control of all matters of quarantine regulations and enforcement and shall have full power and authority to prevent the entrance of such diseases from points without the State, and shall have direction and control over sanitary and quarantine measures for dealing with all diseases within the State and to suppress same and prevent their spread. The president of the board shall have charge of and superintend the administration of all matters pertaining to State quarantine. [Id. Acts 1913, p. 147.]Art. 4420. 
Epidemics are Part of Human History
Understanding the decentralized nature of our Republic and how emergencies can be managed locally are necessary to understand how various communities can react differently, sometimes to their advantage, but also to their detriment. A lot depends on local leadership at the time. Over the years local communities and states have managed many different diseases, most of which are forgotten except to students of history:
- 1633-1634: Smallpox from European settlers – Native Americans were devastated. In 1796 Edward Jenner developed a crude vaccine from cow pox . The Latin word for cow is vacca, and cowpox is vaccinia. Jenner called his procedure vaccination. Now only old people have the smooth little scar on their arms from the immunization that was subsequently refined from vaccinia.
- 1793: Yellow fever from the Caribbean.
- 1832-1866: Cholera – in successive waves between 1832 and 1866.
- 1858: Scarlet fever also came in waves until penicillin was developed.
- 1906-1907: Typhoid Fever – like coronavirus there were healthy carriers.
- 1918: “Spanish flu”- The 1918 Pandemic (H1N1 virus) during WW I is a lesson on how not to treat a pandemic.
- 1921-1925: Diphtheria epidemic. Now mothers only know the name because children get their DPT shot.
- 1916-1955: Polio – every summer for many years until Jonas Salk and Albert Sabin became national heroes.
- 1981-1991: another measles outbreak prompting doctors to recommend a second immunization.
- 2010, 2014: Pertussis again, whooping cough -time to take immunization seriously. Part of the DPT shot.
- 1980s to present: HIV/AIDS. Good drugs are available for treatment but there is no real cure.
- Every year: seasonal flu – sometimes severe. 2009: flu pandemic in the United States was a novel strain of the Influenza A/H1N1 virus.
An excellent historical review by Sean McConnell published in the Galveston County Daily News shows similarities between the largely voluntary coronavirus shutdown and measures that were taken in 1918 in Galveston Texas to slow down the spread of flu. Today’s effort is vastly more effective. We are not sending infected soldier off to war on transport ships. We have doctors who know more than doctors knew in 1918. There are hospitals with respirators. Antibiotics, and a host of other drugs help manage concurrent morbidities like bacterial infections.
Our Constitutional form of government, a Representative Federal Republic, has left the power to deal with such problems with the people, municipalities, and states. It is a mistake to expect the Federal government to do any more than assist with whatever limited Constitutional authority it has.
The fiscal stimulus is probably appropriate. One can forever argue about taxes and debt, single payer healthcare, and the myriad of demands made by people looking to the Federal Government for salvation. Salvation is in the hands of the people, as is their ruin if they if they are too lazy or stupid to accept personal responsibility for their existence on the planet.
The Federal Government has legitimate powers of quarantine within its limited mandate. It can quarantine immigrants and goods entering the country. It may quarantine soldiers in military service. Section 361 of the Public Health Service Act (42 U.S. Code § 264) allows the executive branch to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states. The President can stop airplanes flying in from China and his opponents are free to say he is racist for doing so and for calling the SARS-CoV-2 virus the “Chinese Virus.”