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Comment by DenisM | Hacker News Reader

[...] In the majority opinion, Roggensack determined Health Services Secretary Andrea Palm should have issued regulations through a process known as rulemaking, which gives lawmakers veto power over agency policies. [...] GOP lawmakers who brought the lawsuit have said the legal challenge was necessary to get a seat at the table where Evers and state health officials make decisions about how to respond to the outbreak [...]

This is a fairly narrow decision, it only says the legislative must be involved into this.

Alas it did not address the question I had hoped it would - do sheltering rules violate the Bill of Rights?

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That's been ruled on in Jacobson v. Massachusetts:

> The Court's decision articulated the view that the freedom of the individual must sometimes be subordinated to the common welfare and is subject to the police power of the state.

From https://en.wikipedia.org/wiki/Jacobson_v._Massachusetts

A lot of Civil Rights rulings in force in 1905 were overturned in the century since. See my sibling comment: https://news.ycombinator.com/item?id=23173737

There weren't any "Civil Rights" rulings (note capital letters) prior to the mid-1960s, as the legislation and legal system supporting it didn't exist prior to that.[0]

Modern "Civil Rights" is a parallel legal system in the US that overrides the former Anglo-derived legal system (though both are still on the books) whenever they conflict.

That's why you get people on the Right muttering about "muh Constitution" wondering why Supreme Court rulings that were considered impossible 70 years ago are commonplace today. Civil Rights legislation even overrides the Bill of Rights.

It is what is. But it's 100% anachronistic to being talking about Civil Rights rulings in 1905—that's roughly equivalent to discussing Marxist governance in ancient Rome.

----

To those downvoting, explain the right already lost in the 1st Amendment to Civil Rights: the right to be a racist asshole and choose who you associate with. That was 100% legal under any Anglo-derived system (hell, it's literally in the Bill of Rights!), but it's obviously not legal under a Civil Rights regime. Hence, what was once legal is now illegal, "muh Constitution" and "muh Bill of Rights" or not.

And why didn't it take an amendment to the Constitution to lose that right? Precisely because Civil Rights established its own legal system and justifications, allowing the Supreme Court to re-interpret previously held rights through the lens of Civil Rights whenever convenient. Boom: no more legislation and laws supporting racist assholes.

This is also why things like The Federalist Society and their quote-unquote originalists are so potentially damaging. When they say "originalist", they literally mean the original Anglo-derived legal system (complete with racist assholes) vs. the new Civil Rights-derived legal system. That's what the conflict is about.

Nothing I've written here should be remotely controversial.

[0] Not strictly true, the rulings started in the mid-1950s with Brown v. Board of Education, and you can find various overrides of the Anglo-derived system even further back.... However, I would argue the legal (as opposed to ethical) basis for earlier decisions is dubious, and didn't actually arrive until the mid-1960s.

> Nothing I've written here should be remotely controversial.

I agree it shouldn't be, but apparently it is, given the downvotes you're getting. I've upvoted you to try to compensate a little, for what it's worth.

Not a downvoter, but you may have missed nearly a century of US history. The first Civil Rights Act (note the capital letters) was enacted in 1866 and there is loads of caselaw prior to the 20th century dealing with Civil Rights. Plessy v. Ferguson, decided in 1896, is one of the many landmark fuckups where the Supreme Court upheld racial segregation, for example. It is cases like this that the prior comment is addressing, I imagine.

edit: mild clarity

> The first Civil Rights Act (note the capital letters)

Title Case :P. I stand by the idea that modern "Civil Rights" began in earnest after WW2 and was primarily encoded in legislation in the mid-1960s (though some decisions were earlier—Brown v. Board of Education for example), and that modern Civil Rights (as a broad concept) supersedes the Anglo-derived legal system the US was founded on and replaces it with a different (and at times conflicting) set of principles.

Do you actually disagree with any of that? I'm genuinely curious to find someone who thinks that the law didn't fundamentally change in favor of modern Civil Rights after WW2, vs. what came before…

The 10th amendment partly exists to award police powers to the states.

>do sheltering rules violate the Bill of Rights?

Is an outstanding question about that?

There have been other pandemics, government actions to enforce health standards and etc. I don't think they've been ruled to be unconstitutional.

Quarantine for people who are sick or known to be exposed is definitely legal. But orders for everyone to stay at home are pretty much unprecedented.

Hence my question.

I also want to know where are all the other people asking the same question?

There's been widespread misinformation that similar orders were implemented during the Spanish Flu, which I think has defused a lot of the curiosity about it.

Our society is not lacking in people who are either well-informed or resourceful enough to explore the subject, or both.

Where are they?

I don't think they are dead, or threatened. Did they just agree to stay quiet?

Sorry, I don't follow the question. Where are who?

I mean where are "people who are either well-informed or resourceful enough to explore the subject", and why are they not raising the obvious question of violation of the consitution.

They are. William Barr had a whole letter about how he was watching carefully, and many personalities (Matt Walsh is the first example that comes to mind) have been very vocal that they think the Constitution's being violated and lockdowns must end immediately.

I wonder how many orders actually forced anyone to stay at their home?

Most that I'm thinking of didn't actually force you into your home, business was restricted, large gatherings... but it wasn't a situation where you weren't allowed to go outside. Maybe some did but I can't think of any.

I think most of them did. The Wisconsin order certainly doesn't mince words:

> All individuals present within the State of Wisconsin are ordered to stay at home or at their place of residence, with exceptions outlined below.

https://evers.wi.gov/Documents/COVID19/EMO12-SaferAtHome.pdf

It outright says you can go outside for activities, the type of activity you can do depends, largely on the number of people it would seem. It doesn't mince words about that ...

This strikes me as a dishonest response. The fact that the government graciously grants exceptions doesn't diminish the gravity of the order.

It's not an exception...its the nature of the order. You're not forced to remain in your home.

That was not at all a dishonest response. And, no, the exceptions don't diminish the gravity of the order. But the exceptions, which I believe every such order has had, do diminish the severity of the restriction. It is a huge stretch, actually dishonest, to imply that any of these orders prohibited people from leaving their home. Many of them were accompanied with language that in fact encouraged people to get outside to clear their heads. I will eat my hat if you can find a single one that prohibits people from going outside simply to exercise.

No they also occurred for the 1918 Spanish flu pandemic which also required people to ware face masks in public.

You've fallen victim to a widespread disinformation campaign. There were orders to close restaurants, ban public gatherings, etc., but general orders to stay at home were not issued during the Spanish flu. (It is true that many cities required people to wear face masks in public, and I agree that's almost surely constitutional.)

What extra powers would you need to order people to stay home, if you can already order them not to assemble publicly?

A lot of extra powers. Even in normal times there are some restrictions on public gatherings.

Uhh, people are still allowed to go outside. The so called ‘stay at home orders’ are just using that name.

There is no substantive difference between prohibiting most of the things people can do outside of the home and prohibiting leaving the home except for things that wouldn't be on that list of prohibitions. The framing of today's shelter-in-place orders is different than the orders issued in the 1918-1919 epidemic, the substance (in outline, details differ because the scope of options available to address is different) is not.

Not at all. The 1918 pandemic was very similar; stay at home, no gatherings, wear masks in public. Some of the articles from then read as if they were written last week.

Reading the history about the second and third wave into 1919 as a result of reopening and then re-closing business also makes for interesting and educative reading, recommended.

> But orders for everyone to stay at home are pretty much unprecedented.

Orders prohibiting most gatherings for non-essential purposes (with essential defined by the entity issuing the ruling), shuttering non-essential businesses, etc., very similar to today's shelter-in-place orders were fairly common in the 1918-1919 flu epidemic. They aren't at all unprecedented in the US.

Internment camps and limiting who had the right to vote weren’t unprecedented at that time either. That doesn’t make either acceptable by modern interpretations of the constitution.

Weird how the same people most interested in limiting who has the right to vote today are the same people who are most interested in overturning these shelter in place orders...

Care to offer a citation for your claim?

That there were internment camps in the US? There's a long history of moving first people into concentration camps in the US, and FDR moved Japanese Americans to concentration camps during WW2. https://en.m.wikipedia.org/wiki/Executive_Order_9066

There are more recent examples as well from America that house immigrants and prisoners from the Middle East.

> That there were internment camps in the US?

I think the challenge is for evidence that the broad principle (either internment camps or limitations on the franchise) conflicts with current application of Constitutional law, rather than that the practice occurred in the US.

> There are more recent examples as well from America that house immigrants and prisoners from the Middle East.

Yeah, that's a weakness of the claim, not evidence for it.

Are they issuing orders for internment camps to battle covid 19? Then how is it not a red herring to the question about there being zero precedence for stay-at-home during a pandemic?

That doesn’t make them constitutional.

The claim was that they were unprecedented, not that they were unconstitutional.

OTOH, states (unlike the federal government) have general police powers, so their legislation is constitutional absent an express constitutional prohibition, whereas the feds need specific constitutional authority.

And unfortunately, neither is lying about things being 'unprecedented' because you don't like them.

Unprecedented doesn't mean bad..it just means new. The last truly national pandemic we had predated the model T and approximately aligned with the first commercial airboat flight.

Not only is such action not unprecedented, but mislabeling it unprecedented repeatedly is a form of propaganda.

The Hong Kong flu of 68 killed 100k Americans. Does that count as a truly national pandemic?

Arguably true, but not as far as I believe you’re implying. The ability of the government to quarantine entire towns and counties has been tested and upheld in the courts over the centuries.

What’s new here is that people are being ordered to stay at home. But putting an imposition on a whole group of people without focusing on infected individuals is neither new nor unconstitutional.

There were absolutely mass closure orders during the 1918 pandemic. Famously a San Francisco official shot someone for refusing to wear a mask.

Yes.

For great many Supreme Court rulings there was an opposite ruling in the past. It used to be that the black did not have rights, the gays could not marry, the women could not vote, and speaking up against war was treason.

Times change.

Do you feel like something has changed?

Allowing people to vote and other liberties don't present the obvious yin and yang of freedoms vs public health and etc.

Most certainly. All the things I have enumerated have turned around completely.

Most (all?) of these arcane laws were presented in their time as justified curtailing of individual freedoms for the common good. You could not oppose war without going to jail - one could, and did, argue that such any such opposition was detrimental to resolve and ultimately the victory itself, leading to untold casualties. And yet here we are - oppose all you want!

Every oppressive law is introduced with justification of needing to protect the public, but finding the balance is not as simple as saying "yep, this might help in our fight against blah". The balance needs to be found in accordance with the Bill of Rights, in particular the 4th amendment.

uhhh some of those things became constitutional by modifying the constitution, overruling the Supreme Court by making unconstitutional things constitutional

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