Stay at home is unconstitutional

In this post I will argue that stay at home orders, particularly those issued by the Director of the Ohio Department of Health, are unconstitutional and illegal. A society in which a general stay at home order is legal is not a free society.

Policy vs. Authority

I have disagreed with much of the various government responses to this new coronavirus pandemic as a matter of policy. As a matter of policy, travel bans are a good idea; masks are a good idea. As a matter of policy, closing parks is a bad idea; closing businesses that can accomplish social distancing is a bad idea.

These are a sampling of my opinions as to which policies are effective and ineffective. Reasonable people may find room to disagree about such things. The more important question is this: who gets to decide? I am not in a position of authority over these matters. If I declare a travel ban or quarantine over a city or state, it is meaningless. I do not have the right to decide.

Governors and state governments throughout the USA have been exceeding their authority and issuing orders they have no businesses issuing. Various stay at home orders are examples of this. I don’t mean they are bad or ineffective as policy, I mean these orders are illegal power grabs.

A governor is not a king, and a king is not a god. Every official has only limited authority. When any official acts outside the scope of his limited authority he is trespassing against the rights of others. It is up to those he has trespassed against to remind him of his proper jurisdiction. “Mind your own business,” is the appropriate response.

Why are these orders illegal?

As I said, the question of legality is distinct from the question of policy. When someone is being a buttinsky, interfering in matters outside of his authority, it doesn’t matter if his pronouncements are good policy or bad. If the state government of Ohio issues orders for Kentucky to practice social distancing, Ohio is out of order. The question is one of jurisdiction, not policy.

Similarly, if the state government of Ohio decides to tell me how close I can sit beside my wife on our couch, the state is out of order. Yes, my couch is in Ohio. There is such a thing as geographic jurisdiction, but there is also jurisdiction based on type of activity. The state government doesn’t have jurisdiction over the affairs of a household. It also doesn’t have jurisdiction over personal matters, such as how often I brush my teeth. None of their business.

A general stay at home order, issued to an entire state, oversteps the boundary of government authority by intruding into questions pertinent to households and individuals. This is rather obvious. Am I six years old? Is the governor my father?

If not for the pandemic, no one would doubt for a moment that such decisions belong to the individuals and households making them, rather than to the civil government. But those who assume that the pandemic justifies the government taking over all such decisions have made a grave mistake. The mistake is thinking that exceptional circumstances wholly overturn the nature of jurisdiction, erasing all boundaries.

The mistake is an authoritarian one. It supposes that all of life is a single chain of command and that in important situations the people at the top of that chain can make all the decisions for those beneath them. Nothing could be further from the truth. Life continues to be divided into a myriad of jurisdictions, personal, familial, and civil to name a few. There are important decisions to be made in each of these jurisdictions. The gravity of the decision makes no difference whatsoever to the question of jurisdiction.

Or perhaps the mistake is one of thinking that exceptional circumstances produce general changes to jurisdiction. This is what we might call an overreaction. But again, it tends toward authoritarian and indeed, totalitarian overreach. The exceptional circumstance does not re-order the general case. Exceptional circumstances produce specific exceptions that are as limited as the unusual circumstance.

For example, in general, leaving my house through my front door is my own personal decision. In the unusual event that my front porch is a crime scene under investigation, I may not be able to use my front door. But the bright yellow tape surrounding my front porch would have no effect on my use of the back door. The unusual situation of my porch being under investigation produces a limited exception to my general authority over the use of my home. That limited exception extends no further than necessary.

Ignoring boundaries produces chaos and disorder

Think of the chaos that would result from ignoring this simple principle. If exceptional circumstances are allowed to overrule general freedoms that have nothing to do with the specific situation, anything is possible and all limits on authority dissolve over night. Imagine a policeman saying “There’s been a murder, therefore no one in the whole State of Ohio can travel abroad.” Of course this is absurd. He must name specific suspects or persons of interest. He doesn’t gain general authority from a specific exception.

Then imagine the chief of a fire department discovering a car parked in front of a fire hydrant. The car prevents his firemen from using the hydrant. As a result of this, he concludes that he has general authority over the parking of all cars throughout the city. He hires an extra dozen employees and begins issuing permits so that citizens can park in their own driveways. No permit, no parking. A bit of an overreach, wouldn’t you agree? That is because exceptional circumstances produce specific exceptions not general ones.

Now imagine that an unusual virus comes on the scene making some things dangerous that were previously harmless. This unusual circumstance does not give governors or health directors general authority over things that continue to be harmless. It most certainly does not give them authority over routine personal decisions about leaving your house. It does not give them the right to assume general authority over your freedom of movement and then specify limited exceptions under which you may leave your house. This is tyranny pure and simple.

A turn for the worse

Sadly, this tyrannical overreach is exactly the route which the State of Ohio has taken.
See this quote from the stay at home order:

1. Stay at home or place of residence. With exceptions as outlined below, all individuals currently living in the State of Ohio are ordered to stay at home or at their place of residence except as allowed in this Order.

This turns righteousness on its head. The decision to leave your home is a personal matter. It is, in general, as obvious a matter of individual freedom as one can imagine. It is true that there are specific exceptions to the general rule, such as when a person is placed under house arrest, or when police responding to a crime order someone to “come out with your hands up.”

Authorities may also respond to a virus by issuing quarantine orders. This is long accepted practice. What they may not do is assume total authority over all movement decisions and then grant you exceptions so that you don’t starve to death. Note carefully the difference between general freedom with specific exceptions, and a generalized restriction with specific exceptions.

Dealing with some objections

Don’t the exceptions mean the state isn’t really taking over all authority? No, they don’t. The worst dictator in the world would, of course, grant exceptions by which people could leave their homes. That is, unless he wanted them to starve to death. If he wants to rule a country that serves him in any way, he won’t confine everyone to their homes. Granting exceptions doesn’t mean he isn’t a dictator. He is a dictator because he claims total authority over your decisions, regardless of whether he uses that authority to utterly destroy you or simply to enslave you.

But isn’t this a quarantine? No, it isn’t, and the authorities know it isn’t. Quarantine is when you separate the sick or those suspected of being sick from those believed to be healthy. Quarantine may apply to an individual, a household, a city, a county or perhaps even a whole state. If a household is quarantined, the members may visit with each other, but not with those outside the household. If a city is quarantined, the residents may engage in commerce with each other, but not travel abroad. In the case, of Ohio’s stay at home order, we’re all simultaneously sick and healthy. This is not a quarantine.

To demonstrate that the state knows it isn’t a quarantine, note that it is not called a quarantine in the order. Note also that the order mentions that they reserve the right to order quarantines:

19. No limitation on authority. Nothing in this Order shall, in any way, alter or modify any existing legal authority allowing the State or any local health department from ordering (1) any quarantine or isolation that may require an individual to remain inside a particular residential property or medical facility for a limited period of time, including the duration of this public health emergency, or (2) any closure of a specific location for a limited period of time, including the duration of the public health emergency.

They know how to carefully guard their own authority. I wish that they were so careful with ours.

But isn’t it technically legal? There’s a difference between feigned legality and true legality. The order quotes Ohio Revised Code 3701.13 granting the Director of the Ohio Department of Health power to “make special orders … for preventing the spread of contagious or infectious diseases.” If you look up that section of the Revised Code you’ll that it says almost nothing more than this quote. It would be very naïve to interpret that as granting the Director all power in heaven and earth.

Rather fundamental rights, like freedom of movement, require that all such powers be narrowly construed, regardless of the wording of the Revised Code. See this Wikipedia entry on strict scrutiny for how such things should be handled.

Let me ask you this, could the Director order all Ohioans to cease breathing for fourteen days? That would certainly stop the disease from spreading!

The easy conclusion

Please notice what we have not had to do to reach this conclusion: we have not had to arrive at any exact measurement of the deadliness of the disease. There is still a significant level of uncertainty about the disease, although the broad strokes are becoming fairly well established. We don’t need to get into the weeds on that. The indisputable truth is that leaving your home represents no particular threat.

In fact, the numerous and wide exceptions granted to this stay at home order are the best evidence that it is unwarranted. If I can safely leave my home and go to a public place like a grocery store then the threat must be relatively tame. If social distancing is sufficient for the continued operation of financial services like banks, why not for shoe stores? If I can go outdoors for exercise why not for sightseeing? At a certain point the exceptions have become so broad as to invalidate the rule.

The State of Ohio appears to have stumbled, through panic and folly, into an authoritarianism that is incompatible with a free society. This trespassing on the basic rights of individuals and families is contrary to the righteousness and wisdom by which God has ordered the world. It is incumbent upon as Christian citizens to confront those who trespass against us, and if possible, to be reconciled to them when they renounce their error.

May God grant us mercy, give us clear understanding and deliver us from tyranny no matter how benignly intended or inadvertently designed. Let us pray, as the lord Jesus taught us, that the affairs of men would be ordered according to the will of God. Amen.

 

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