Stay-at-home-orders Amicus Brief (Part II)

Introduction

The United States is a republic, not a democracy. In a republic, sovereignty rests with the citizens and not with state or federal governments. As such, it is not the duty of government to protect the rights of a majority, but to protect the fundamental rights of all citizens equally. After all, majorities are often wrong such as in Dred Scott v. Sanford 60 U.S. 393 (1857) (slavery), Bradwell v. Illinois 83 U.S. 130 (1873) (deny women’s rights), and Plessy v. Ferguson 163 U.S. 537 (1896) (segregation). A fundamental right is self-evident to all or one that there is no disputing. Fundamental rights may be both enumerated or unenumerated and include the right to work, play, friendships (associations), marriage, health, life, property, contracts, knowledge, enjoyment of nature and arts, self-defense, self-preservation, religion, family, free speech, the right to vote, travel, and justice.

Covid 19 brought about unique circumstances causing strict government stay-at-home orders leading to the loss of many of the fundamental rights listed above including the right to work, play, friendships, contracts, knowledge, enjoyment of nature, and travel. Conversely, government restrictions during the Covid 19 crisis may also be viewed as protecting citizen’s rights to life and health. What is compounding the conflict between government and citizens is that the priority of fundamental rights among citizens is vastly different. While some may view their health and life as the most important rights, others may view family, religion, education, and work more important. After all, life without other rights is meaningless. What’s more, the prioritization of rights among citizens can change depending on the circumstances. For instance, does religion take precedence over work on days other than Sunday? Does religion take precedence over playing with one’s kids all the time? Does religion take precedence over one’s health all the time? Of course not, hence individual priorities are always in flux. The government historically can deny rights in four ways. First, they may deny rights because of a national emergency or crisis. Second, they may deny unenumerated rights using rational basis scrutiny. Third, they may deny rights because they regard some rights in a higher standing than other rights. In other words, by creating a hierarchy of rights. Finally, they may deny rights because they place limitations on fundamental rights.

That said, government has the right to deny fundamental rights if two predicates are met:

1. Government must have a compelling reason such as to protect the health and safety of citizens from Covid 19. Thus, the government meets this requirement.

2. The government must use the least evasive method to achieve its objective. This requirement has not been met. Part of the reason why governments fail to adhere to consequentialism doctrines such as “do the ends justify the means” and “the least evasive method to achieve its objective” is because they are impossible to measure since they are defined vastly different depending on the person. Furthermore, consequentialism documents are easy to manipulate depending on biases, opinions, and agendas of legislators.

Thus, usually the government only has to meet point 1 above to deny rights because point 2 is arbitrary. Hence, a better guideline or requirement is needed to protect the rights of individuals. This brief tries to define a better mechanism for protecting rights in four steps. First, rights need to be protected because sovereignty lies with the citizen. Second, to better define unenumerated and enumerated fundamental rights that require protection at all cost. Third, to demonstrate why government laws seldom use the least evasive method to deny rights. Finally, to make suggestions that would be beneficial to protect both government and citizen objectives.