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Are shutdowns constitutional? #6820473
03/28/20 02:13 PM
03/28/20 02:13 PM
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nm
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adam m Offline OP
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Tea party of NM is suing the state because of the shutdowns citing it goes against the 1st and 2nd.
The state sees gun stores as non-essential and gave gun stores still operating a cease and desist order to stop normal operations. Transfers and online orders can be picked up by appointment only.
Churches can't gather, assembly of any kind is limited to 5 or less.

Are these restrictions constitutional or not?

Re: Are shutdowns constitutional? [Re: adam m] #6820477
03/28/20 02:20 PM
03/28/20 02:20 PM
Joined: Mar 2007
Posts: 35,129
McGrath, AK
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white17 Offline

"General (Mr.Sunshine) Washington"
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McGrath, AK
In my opinion there isn't much doubt.They ARE Constitutional


Mean As Nails
Re: Are shutdowns constitutional? [Re: adam m] #6820478
03/28/20 02:22 PM
03/28/20 02:22 PM
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williamsburg ks
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danny clifton Offline
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White17, from reading your posts there is no doubt you are an inteligent man but I could not disagree more with you on this.


Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety. Benjamin Franklin (1706-1790)
Re: Are shutdowns constitutional? [Re: adam m] #6820484
03/28/20 02:26 PM
03/28/20 02:26 PM
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Catch22 Offline
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I'm in between white and danny. There has to be a line there somewhere to become unconstitutional. Where in the world is pass-thru?


I wonder if tap dancers walk into a room, look at the floor, and think, I'd tap that. I wonder about things.....
Re: Are shutdowns constitutional? [Re: adam m] #6820488
03/28/20 02:28 PM
03/28/20 02:28 PM
Joined: Mar 2007
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McGrath, AK
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white17 Offline

"General (Mr.Sunshine) Washington"
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Joined: Mar 2007
Posts: 35,129
McGrath, AK


Mean As Nails
Re: Are shutdowns constitutional? [Re: adam m] #6820489
03/28/20 02:29 PM
03/28/20 02:29 PM
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Beatrice, NE
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loosegoose Offline
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From what I've gathered, quarantining a person who is sick or who came into contact with a sick person and has a high likelihood of getting sick is perfectly legal. Most of that power rests with local governments and not the feds. Quarantining healthy people "just to be safe" is not legal. Shutting down whole areas and cities and states almost certainly is not. In any case. you still have due process and if you feel you are being detained in your home against your will, whether by a quarantine, isolation, stay at home order, whatever, you can file a writ of habeas corpus.

You have a right to assemble, and a right to practice your religion, and a right to bear arms, and a right to be secure in your person, houses, papers, and effects, and those rights don't go away just because a bunch of people are getting sick.

Re: Are shutdowns constitutional? [Re: adam m] #6820490
03/28/20 02:29 PM
03/28/20 02:29 PM
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Posts: 16,951
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Catch22 Offline
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Yeah but you have to subscribe to read it.


I wonder if tap dancers walk into a room, look at the floor, and think, I'd tap that. I wonder about things.....
Re: Are shutdowns constitutional? [Re: white17] #6820491
03/28/20 02:30 PM
03/28/20 02:30 PM
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Beatrice, NE
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loosegoose Offline
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It opens, but ya gotta pay to read it.

Re: Are shutdowns constitutional? [Re: adam m] #6820493
03/28/20 02:30 PM
03/28/20 02:30 PM
Joined: Dec 2006
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NWWA/AZ
Vinke Offline
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You are Fffffe dd's


Slightly used Shoes 4 sale……………
Re: Are shutdowns constitutional? [Re: adam m] #6820496
03/28/20 02:31 PM
03/28/20 02:31 PM
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Posts: 25,692
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adam m Offline OP
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White I have to disagree the 1st and 2nd have been thrown out. Correct me if I'm wrong but the only way to throw out or suspended the constitution would be to declare martial law, right? No martial law has been declared.

Last edited by adam m; 03/28/20 02:31 PM. Reason: Stupid phone put wrong words
Re: Are shutdowns constitutional? [Re: loosegoose] #6820497
03/28/20 02:31 PM
03/28/20 02:31 PM
Joined: Mar 2007
Posts: 35,129
McGrath, AK
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white17 Offline

"General (Mr.Sunshine) Washington"
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Joined: Mar 2007
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McGrath, AK
Originally Posted by loosegoose

It opens, but ya gotta pay to read it.



OK I'll copy/paste


Mean As Nails
Re: Are shutdowns constitutional? [Re: adam m] #6820500
03/28/20 02:33 PM
03/28/20 02:33 PM
Joined: Mar 2007
Posts: 35,129
McGrath, AK
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white17 Offline

"General (Mr.Sunshine) Washington"
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Joined: Mar 2007
Posts: 35,129
McGrath, AK

A Constitutional Guide to Emergency Powers
Federal leadership is crucial, but there are measures only states have the authority to take.



The Covid-19 pandemic has led to extraordinary restraints on liberty, from international travel bans to state and local orders that businesses shut down, individuals avoid large assemblies and even stay home, and infected patients remain in quarantine. Depending on the epidemic’s progress, even more-draconian measures may be needed, such as restrictions on interstate and intrastate travel. It’s possible that “social distancing” will last for months rather than weeks.

All this goes against the grain in America, whose people treasure freedom and constitutional rights. But the government has ample constitutional and legal authority to impose such emergency steps.
The Coronavirus Changes American Life and the Economy
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Some state officials, such as New York Gov. Andrew Cuomo, have urged the White House to take charge. But this isn’t a task for Washington alone. While the federal government has limited and enumerated constitutional authority, states possess a plenary “police power” and have primary responsibility for protecting public health.

States may also take more drastic measures, such as requiring citizens to be tested or vaccinated, even against their will. In Jacobson v. Massachusetts (1905), the Supreme Court considered a challenge to a state law requiring everyone to be vaccinated against smallpox. Henning Jacobson refused vaccination and was convicted. The court upheld the law and Jacobson’s conviction.

“The Constitution,” Justice John Marshall Harlanwrote for a 7-2 majority, “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Instead, “a community has the right to protect itself against an epidemic.” Its members “may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

States also have the power, beyond criminal law enforcement, to make quarantine and isolation effective. If presented with widespread noncompliance, governors may call National Guard units to put their orders into force, to safeguard state property and infrastructure, and to maintain the peace. In some states, individuals who violate emergency orders can be detained without charge and held in isolation.

Federal leadership is crucial. Washington has wider access to data about the virus, its migration and trends. It is prudent for states to follow federal guidance on matters like quarantine and travel restrictions. But because Washington lacks states’ police power, compulsion is not always an option. The Constitution forbids federal officials from coercing the states or commandeering state resources or civilian personnel. While Washington may withhold some federal funds from states that refuse to follow federal law, it may do so only in ways that are tailored to advance the federal interests at stake and don’t amount to a “gun to the head,” as Chief Justice John Roberts put it in the 2012 ObamaCare case.

The federal government has the authority to order regional or nationwide containment and quarantine measures. The Public Health Service Act enables the surgeon general, with the approval of the secretary of health and human services, “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases.” President Trump listed the Covid-19 virus for this purpose in January. The act authorizes the federal government to apprehend, detain and conditionally release individuals to prevent the spread of infection, and to detain anyone who enters from a foreign country or who would spread the disease across state borders.

The act can be read to allow for the general quarantine of all people from a particular state or states, including those who are asymptomatic or even have tested negative. But an attempt to do so would certainly result in litigation. Congress should promptly enact a statute that would affirm federal authority to impose a general quarantine if necessary.

To enforce such measures, the president can deploy civilian and military resources. He could federalize the National Guard over the governor’s objection. The Constitution allows Congress to authorize the use of the militia as well as regular armed forces for a variety of purposes, including suppression of insurrections, defense against invasions, and execution of laws.

Congress has placed significant constraints on the domestic use of the U.S. military. The Posse Comitatus Act of 1878 generally prohibits the use of U.S. armed forces for “performing domestic law enforcement activities” and features criminal penalties for noncompliance. But lawmakers have enacted important exceptions that allow the use, in certain specified circumstances, of the military to enforce federal laws. One is the Insurrection Act, originally dating to 1807, which allows the president to use the military when dealing with domestic rebellions. Widespread noncompliance with federal quarantines and travel bans promulgated under the Public Health Service Act may qualify as an insurrection.

Containing the Covid-19 epidemic will require citizens, states, private companies and the federal government to work together. One may hope the steps that have been taken so far will suffice. But emphasizing the sound constitutional and legal basis of these measures is important in reassuring the public that government can do what is necessary to secure the general welfare.

Mr. Rivkin is a constitutional lawyer who has served in the Justice and Energy Departments and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Stimson is a senior legal fellow at the Heritage Foundation.


Mean As Nails
Re: Are shutdowns constitutional? [Re: adam m] #6820502
03/28/20 02:34 PM
03/28/20 02:34 PM
Joined: Jun 2018
Posts: 4,739
Beatrice, NE
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loosegoose Offline
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Beatrice, NE
Interesting article from NPR about whether or not you can quarantine a healthy person...quarantining healthy people Basically the opinion in the article is that quarantines have to be done on an individual basis, and you can't just quarantine everyone out of an abundance of caution. But keep in mind, this was from 2014 and Obama was president then, so media opinions have changed.

Re: Are shutdowns constitutional? [Re: Catch22] #6820504
03/28/20 02:37 PM
03/28/20 02:37 PM
Joined: Dec 2017
Posts: 6,190
Kansas
Pawnee Offline
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Kansas
Originally Posted by Catch22
I'm in between white and danny. There has to be a line there somewhere to become unconstitutional. Where in the world is pass-thru?


Same here Catch. I’m concerned we are being led to a steep cliff, but I can see a need to limit exposure for people in populated areas. Not sure what to think yet.


Everything the left touches it destroys
Re: Are shutdowns constitutional? [Re: adam m] #6820509
03/28/20 02:42 PM
03/28/20 02:42 PM
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Nevada
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nvwrangler Offline
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Im not a lawyer or constitutional scholar but in my opinion based on the wording i have always heard the first 10 amendments know as the bill of rights are inalienable rights and can only be taken or suspended by God .

Re: Are shutdowns constitutional? [Re: adam m] #6820514
03/28/20 02:45 PM
03/28/20 02:45 PM
Joined: Mar 2007
Posts: 35,129
McGrath, AK
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white17 Offline

"General (Mr.Sunshine) Washington"
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Joined: Mar 2007
Posts: 35,129
McGrath, AK
Here is a fairly long piece about the history of epidemics and society. From the WSJ this morning.

I found it very interesting. Maybe others will also.


How Epidemics Change Civilizations
Measures developed for the plagues of the 14th century are helping authorities fight the coronavirus now says Yale historian Frank Snowden.
By Jason Willick
March 27, 2020 7:06 pm ET


To put the coronavirus pandemic in perspective, consider what happened when the bubonic plague struck London in 1665. The onset of the disease could be sudden, says Yale historian Frank Snowden: “You actually have people afflicted and in agony in public spaces.” Trade and commerce swiftly shut down, and “every economic activity disappeared.” The city erected hospitals to isolate the sick. “You have the burning of sulfur in the streets—bonfires to purify the air.”

Some 100,000 Londoners—close to a quarter of the population, equivalent to two million today—died. Some sufferers committed suicide by “throwing themselves into the Thames,” Mr. Snowden says. “Such was their horror at what was happening to their bodies, and the excruciating pain of the buboes”—inflamed lymph nodes—that are the classic symptom of the bubonic plague. Social order broke down as the authorities fled. “Death cart” drivers went door to door, collecting corpses for a fee and sometimes plundering the possessions of survivors.
The Final Drama of the Coronavirus Bill
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The plague’s violent assaults on European cities in the Middle Ages and Renaissance periods created “social dislocation in a way we can’t imagine,” says Mr. Snowden, whose October 2019 book, “Epidemics in Society: From the Black Death to the Present”—a survey of infectious diseases and their social impact—is suddenly timely.

I interviewed Mr. Snowden, 73, over Skype. We’re both home in lockdown, I in California and he in Rome, where he’s gone to do research in the Vatican archives. In the mid-14th century, Italy was “the most scourged place in Europe with the Black Death,” he notes. In the 21st century, it’s among the countries hardest hit by Covid-19.

Science has consigned the plague, caused by the flea- and rat-borne bacterium Yersinia pestis, to the margins of public-health concern (though it remains feared as a potential aerosolized bioweapon). Yet its legacy raises challenging questions about how the coronavirus might change the world.

For all the modern West’s biomedical prowess, some of its blunt tools against a poorly understood disease are similar to what was first attempted in the 14th century. Take quarantine. Hundreds of millions of Americans and Europeans are isolated in their homes in an effort to slow the spread of the coronavirus.

Isolation as a defense against infectious disease originated in the city-states of Venice and Florence. Italy was the center of Mediterranean trade, and the plague arrived in 1347 on commercial ships. The dominant theory at the time was “miasmatism”—the atmosphere was poisoned—perhaps by visitors’ garments—and people get sick “when they breathe that in, or absorb it through their pores,” Mr. Snowden says. “That is, there is some emanation, and it can be thought to be coming from the soil, or from the bodies” of sick people.

After plague visitations, the Venetian navy eventually began to force sailors arriving at the harbor to disembark on a nearby island, where they remained for 40 days—quaranta—a duration chosen for its biblical significance. The strategy worked when it was enforced as disease-ridden fleas died out and the sick died or recovered. Mr. Snowden notes that Americans returning from Wuhan, China, in early February were “detained on army bases for a quarantine period”—14 days rather than 40.

“We can see the roots of many aspects of modern health already in the Renaissance,” he adds. Another example is the wax “plague costume” worn by physicians. It resembled modern-day medical garb—“the protective garments that you see in the hospital for people dealing with Ebola, or this sort of space suit”—but with a long beak containing resonant herbs. They were thought to “purify the air that you were breathing in.” The costume “did, in fact, have some protective value,” Mr. Snowden says, because the wax repelled the fleas that carried the disease.

Antiplague efforts dramatically changed Europeans’ relationship to government. “The Florentines established what were called health magistrates, which are the ancestors of what today we call boards of health or departments of health,” Mr. Snowden explains. “Endowed with special legal powers,” they coordinated plague countermeasures.

The plague was more traumatic than a military assault, and the response was often warlike in its ferocity. One response was a “sanitary cordon,” or encircling of a city-state with soldiers, who didn’t allow anyone in or out. “Imagine one’s own city, and suddenly, in the morning, it’s cordoned off by the National Guard with fixed bayonets and helmets on, and orders to shoot if we cross,” Mr. Snowden says. Cordons were regularly imposed in European cities in times of plague risk, leading to terror and violence. In the 18th century, the Austrian army was “deployed to prevent bubonic plague from moving up the Balkan Peninsula and into Western Europe” by halting travelers who might be carrying it.

The sociologist Charles Tilly (1929-2008) famously argued that “war makes the state”—that borders and bureaucracies were forged by necessity in military conflict. Plague had similar effects, requiring “military commitment, administration, finance and all the rest of it,” Mr. Snowden says. In addition to a navy to enforce quarantines, “you needed to have a police power,” a monopoly on force over a wide area. Sometimes “watchmen were stationed outside the homes of people who had the plague, and no one was allowed in or out.”

Yet while the plague saw power move up from villages and city-states to national capitals, the coronavirus is encouraging a devolution of authority from supranational units to the nation-state. This is most obvious in the European Union, where member states are setting their own responses. Open borders within the EU have been closed, and some countries have restricted export of medical supplies. The virus has heightened tensions between the U.S. and China, as Beijing tries to protect its image and Americans worry about access to medical supply chains.

The coronavirus is threatening “the economic and political sinews of globalization, and causing them to unravel to a certain degree,” Mr. Snowden says. He notes that “coronavirus is emphatically a disease of globalization.” The virus is striking hardest in cities that are “densely populated and linked by rapid air travel, by movements of tourists, of refugees, all kinds of businesspeople, all kinds of interlocking networks.”

The social dynamics of a pandemic are determined partly by who is most affected. Cholera, for example, “is famously associated with social and class tensions and turmoil,” Mr. Snowden says. A vicious gastrointestinal infection, it was most prevalent in crowded urban tenements with contaminated food or water. “We could pick Naples, or we could pick New York City in the 19th century,” he says. “Municipal officials, the authorities, the doctors, the priests, the middle classes, the wealthy, who live in different neighborhoods, are not succumbing to this disease.” That led to conspiracy theories about its origin, and to working-class riots.

Similarly, the bubonic plague struck India, then a British colony, in the late 19th century. The British responded by introducing Renaissance-era antiplague measures—“very draconian exercises of power and authority, but by a colonial government, over the native population,” Mr. Snowden says. “The population of India regarded this as more fearful than the plague itself” and resisted. Britain, worried that “this would be the beginning of modern Indian nationalism,” backed off the measures, which were mostly ineffective anyway.

Respiratory viruses, Mr. Snowden says, tend to be socially indiscriminate in whom they infect. Yet because of its origins in the vectors of globalization, the coronavirus appears to have affected the elite in a high-profile way. From Tom Hanks to Boris Johnson, people who travel frequently or are in touch with travelers have been among the first to get infected.

That has shaped the political response in the U.S., as the Democratic Party, centered in globalized cities, demands an intensive response. Liberal professionals may also be more likely to be able to work while isolated at home. Republican voters are less likely to live in dense areas with high numbers of infections and so far appear less receptive to dramatic countermeasures.

Infectious disease can change the physical landscape itself. Mr. Snowden notes that when Napoleon III rebuilt Paris in the mid-19th century, one of his objectives was to protect against cholera: “It was this idea of making broad boulevards, where the sun and light could disperse the miasma.” Cholera also prompted expansions of regulatory power over the “construction of houses, how they had to be built, the cleanliness standards.” If respiratory viruses become a more persistent feature of life in the West, changes to public transportation and zoning could also be implemented based on our understanding of science—which, like Napoleon’s, is sure to be built upon or superseded in later years.

In ancient literature, from Homer’s “Iliad” to the Old Testament, plagues are associated with the idea that man is being punished for his sins, Mr. Snowden observes. Venetian churches were built to demonstrate repentance. Mr. Snowden also highlights the Flagellants of the 14th and 15th centuries, who would embark on a “40-day procession of repentance, self-chastisement and prayer,” whipping themselves and others.

For Europeans who survived the plague, Mr. Snowden says, it impressed the idea that “you could be struck down at any moment without warning,” so you should focus on your immortal soul. Paintings often featured symbols like “an hourglass with the sands running out, a flower that’s wilting.”

Coronavirus is far less lethal, but it does shatter assumptions about the resilience of the modern world. Mr. Snowden says that after World War II “there was real confidence that all infectious disease were going to be a thing of the past.” Chronic and hereditary diseases would remain, but “the infections, the contagions, the pandemics, would no longer exist because of science.” Since the 1990s—in particular the avian flu outbreak of 1997—experts have understood that “there are going to be many more epidemic diseases,” especially respiratory infections that jump from animals to humans. Nonetheless, the novel coronavirus caught the West flat-footed.

It’s too early to say what political and economic imprint this pandemic will leave in its wake. As Mr. Snowden says, “there’s much more that isn’t known than is known.” Yet with a mix of intuition and luck, Renaissance Europeans often kept at bay a gruesome plague whose provenance and mechanisms they didn’t understand. Today science is capable of much more. But modernity has also left our societies vulnerable in ways 14th-century Venetians could never have imagined.

Mr. Willick is an editorial page writer at the Journal.


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Re: Are shutdowns constitutional? [Re: adam m] #6820515
03/28/20 02:45 PM
03/28/20 02:45 PM
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If I disappear for awhile, either Paul gave me a vacation or the Nazis got me. I have several things I need to do daily that require me to be about.

I

Re: Are shutdowns constitutional? [Re: adam m] #6820516
03/28/20 02:47 PM
03/28/20 02:47 PM
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Gary Benson Offline
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I wouldn't even have a problem with it if there wasn't so much evil waiting at every opportunity. I don't think it's constitutional but folks have to take their own personal safety into mind at some point.


Life ain't supposed to be easy.
Re: Are shutdowns constitutional? [Re: adam m] #6820520
03/28/20 02:49 PM
03/28/20 02:49 PM
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Guess we'll see how much of this is too save lives next flu season when thousands are expected to die.

Re: Are shutdowns constitutional? [Re: nvwrangler] #6820522
03/28/20 02:50 PM
03/28/20 02:50 PM
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white17 Offline

"General (Mr.Sunshine) Washington"
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Originally Posted by nvwrangler
Im not a lawyer or constitutional scholar but in my opinion based on the wording i have always heard the first 10 amendments know as the bill of rights are inalienable rights and can only be taken or suspended by God .



I think we all read the Bill of Rights as absolute...but Scotus has weighed in on this. From the first WSJ article above..............."“The Constitution,” Justice John Marshall Harlanwrote for a 7-2 majority, “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Instead, “a community has the right to protect itself against an epidemic.” Its members “may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”


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