From the Convention Of States: “This deviation from constitutional democracy must not be allowed to become established precedent.”
The following was written by constitutional lawyer Michael Farris and originally published on his Facebook page. Farris is currently the president, CEO, and general counsel for Alliance Defending Freedom and was the co-founder of the Convention of States Project.
The general principle that Governors can take actions to protect the health of citizens is not in contention.
But there is a material difference between the old-fashioned quarantines (requiring sick people to stay in seclusion) and trying to require everyone to shelter in place.
But even that has a general principle that can be supported constitutionally.
Here’s the problem I want to focus on today.
These shelter in place orders all make a distinction between essential and non-essential services. Winners and losers are chosen with very serious consequences.
While that sounds like a reasonable idea, it is a construct that can and does lead to absolutely arbitrary and irrational distinctions.
Drive-in restaurants are OK. Drive-in churches not permitted.
You can’t visit your relative in a nursing home even when they are behind a solid glass window with no openings at all.
Hair dressers are allowed to go to a family’s home but not have one client at a time in their shop.
And there are countless other examples.
These denials of equal protection and rationality are not merely unconstitutional in application. They are, in my view, constitutionally suspect in the way they are created.
Read more: Convention of the States
