Locking Down the Constitution

By Tom Mccaffrey

California governor Gavin Newsom has moved the covid lockdown goalposts for a second time. Per last week’s decree, larger counties in the state must “address inequity in communities such as low-income, Black, Latino, Pacific Islander and essential workers.”

Counties with a population greater than 106,000 must follow an equity metric to ensure that their most disadvantaged neighborhoods don’t lag behind. Counties with less than 106,000 residents must submit a plan that defines their disproportionately affected population and show plans to invest in at least interrupting disease transmission in these populations.

It appears Mr. Newsom does not see a great need to allow Californians to go back to work any time soon. It also appears that he is enjoying his new, dictatorial powers. And, if recent history is any guide, he has little reason to fear that the courts will interfere with his exercise of those powers.

This past May, the U.S. Supreme Court, in a 5-4 decision, found California’s covid-19 restriction that limited indoor church attendance to 25 percent of building capacity or no more than 100 persons to be “consistent with the Free Exercise Clause of the First Amendment.” The Court’s majority did not issue an opinion, but in a concurrence with the ruling, Chief Justice Roberts argued that, because the restriction did not discriminate against religious organizations but, instead, applied equally or more forcefully to “lectures, concerts, movie showings, spectator sports, and theatrical performances,” it did not violate the Free Exercise Clause.

In citing this non-discrimination standard, Justice Roberts was implicity endorsing a principle enunciated in the 1993 case of Lukumi Babalu Aye, Inc. v. City of Hialeah. “[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation … it is invalid …,” said the court in Lukumi. “The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.”

In other words, according to this standard, it can be perfectly constitutional for a law (or executive decree, as in the California case) to prohibit religious practice as long as it applies equally to comparable, non-religious organizations. The obvious problem with this standard is that the First Amendment is unequivocal and says nothing whatever about discriminating against religious organizations. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….”

But according to the Lukumi standard, it would be perfectly constitutional for a statute to force Christian bakers to bake wedding cakes for gay couples as long the law applied equally to non-Christian bakers. (In the recent case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court found in favor of the Christian baker because an examination of the proceeding of the Civil Rights Commission detected animus against the baker’s religiosity. In the absence of this bias, the rule would have been allowed to stand, one presumes.)

Likewise in the case of a rule that required Catholic organizations to provide health care plans that covered the cost of contraception for their lay employees. (The recent case of Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, which dealt with just such a rule, was decided in favor of the Sisters on technical grounds. Absent these grounds, the rule would have been allowed to stand, one presumes.)

And, indeed, the case of the California church lockdown validates this conclusion. Even the most egregious restriction of religious practice will be ruled Constitutional so long as the restriction does not apply only to religious organizations.

But Justice Roberts’s concurrence in the church lockdown case is noteworthy for another reason. He writes:

When [the politically accountable officials of the states] “undertake … to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).

In other words, since courts are not competent to adjudicate science, they should defer to legislatures (and administrative bodies) on such matters. Here Roberts is echoing a principle originated by the arch-Progressive, Louis Brandeis, in 1908.

The case was Muller v. Oregon, which involved an Oregon ten-hour law for women workers. Brandeis argued the case for the State of Oregon before the U.S. Supreme Court. A jurist of an earlier era might well have argued that on principle a person ought to be free to contract with another person on any terms that are agreeable to both— regardless of the peculiarities of the case in question. But to Brandeis all that mattered were the facts of the case in question—in Muller the “fact,” among others, that long hours of work are bad for a woman’s health.

Accordingly, in his brief Brandeis devoted just two pages to the legal argument, and an unprecedented one hundred-plus pages to statistics and other facts purporting to show that the Oregon Legislature had acted reasonably in enacting the statute. (It was not even necessary, Brandeis argued elsewhere, that the facts on which legislatures based their enactments be true. All that was needed was that the legislatures could reasonably be understood to have believed the “facts” on which they based their determinations.)

Brandeis did not intend to suggest that courts should go into the business of sifting through the mountains of facts upon which legislatures base their enactments. On the contrary, precisely because courts are not equipped to evaluate great quantities of such facts, he believed,they ought not try; they should leave such matters to the legislatures.

So the “conservative” Chief Justice Roberts has endorsed a legal principle—or, rather, anti-principle—that has been a linchpin of liberal jurisprudence since early in the Progressive era. As Brandeis’s Muller case illustrates, a legal system grounded upon science is antithetical to one grounded upon constitutional principles of law. Muller helped to extinguish an individual’s right to contract freely, a right which was a reality in the U.S. before the Progressive era. A Constitutional right that can be extinguished at will by a legislature on the basis of someone’s version of science or “the facts” is no right at all.

Progressive jurisprudence, much of it relying on such “science” as Brandeis had adduced in Muller, would go on to extinguish a great many of the economic and property rights that had made the U.S. a capitalist and industrial powerhouse. Indeed, it was the “science” of environmentalism that turned America’s industrial heartland into a Rust Belt. One can easily imagine freedom of speech, freedom of religion, and the right to bear arms all being extinguished by similar “science.”

To leave the lockdowns in California and other states to science, as Chief Justice Roberts advises, science which in the case of covid-19 has been notoriously uncertain, is virtually to abandon the rule of law in those states. It is to invest their governors with near-dictatorial powers. And it is to divest their citizens of whatever rights their governors see fit to suspend on any given day. These governors have caused enormous economic harm to individuals, families, companies, and the country; they have set a dangerous precedent with their wholesale suspending of constitutional rights; they have enabled a slow-rolling insurrection by Black Lives Matter and the Antifa Brownshirts to come into being; and they will likely throw the coming presidential election into chaos and, perhaps, a constitutional crisis. This is no way to run a free country.

Blogger’s Note: To underscore Tom’s overall thesis, here is an example (one of scores I have found) of how tyranny brutally victimizes violators of lockdown (for mask violations) mandates, or the arbitrary exercise of power in Australia. Watching this sends my BP skyrocketing.  Ausralia cop choking maskless ‘violator” of lockdown Melbourne.