Citizens in many states have recently rallied together to protest the stay-at-home orders issued by their state governors. I have watched as protestors allege that the government has no right to restrict their first amendment rights to assemble and of religion.

At some point down deep, I can feel what they are feeling. I find myself thinking that the government controlling the primary areas of my life is a bit like communism. And my emotional libertarian streak emerges but is soon pushed back down by commonsense and the reality that I am in the critical group because of age and Type II Diabetes.

I expect most of us can sympathize with those marchers as this quarantine stretches on, and paychecks dwindle or disappear. Not forgetting their misery What is the legal basis of the governors’ orders?

I am not an attorney. My doctoral dissertation was a study of the 4^th Amendment (search and seizure) in public schools, and I was a professor of school law for almost 20 years. Most of my classes focused on where schools and the Bill of Rights came into conflict.  

Let’s start with some givens that help us to understand Constitutional principles.

1. The Constitution applies to people individually and in groups
2. If the government violates one person’s Constitutional rights, the government is in the wrong
3. The Courts are the arbiters of whether or not rights have been violated
4. Governments (usually state governments) can violate our rights in certain very, very narrow circumstances

Back in 2001, soon after 9-11, a Muslim lady wearing full bourka with only her eyes showing came to the Florida DVA to obtain her driver’s license.  The state of Florida refused unless she removed the bourka. She refused, and off it went to the Federal Courts, who agreed with the state of Florida. One obvious question for us is, Didn’t the lady have the religious, first amendment right to wear the burka, a symbol of Islam?

We need another question. Were there special circumstances that gave Florida the right to breach her first amendment rights? The court ruled that the state driver’s license is a primary means of identifying people, and the state’s need for increased security, superseded the woman’s First Amendment right of religion.

For a government (at any level in the U.S.) to invade our Constitutional rights, there must be a compelling governmental interest.

I expect you can surmise at this point how the state governments have the right to designate essential services and nonessential services. Indeed, going to church, the synagogue, or the mosque is essential to us as individual worshipers. However, the state’s interest in maintaining the health of its citizens is a compelling state interest that is greater than our own rights during the pandemic.

There is an interesting question emerging about whether it is a violation of the 4^th Amendment’s rights to privacy covers drones being used to determine if people out in public have fevers. I guess if we end up with mass cheek-swabbing-checks, the 4^th Amendment would be involved again!

This may not be what you hoped for. Still, I hope this helps a bit. I am convinced as our country is more and more divided, that the U.S. Constitution, in all its wisdom, will eventually bring us all back together. I believe resolutely that our future depends on it.