Royal Alexander: Framers specifically considered and rejected this approach

Every day gives rise to the possibility of another constitutional violation. Please know that I greatly value my own health and safety and that of others as well. It’s the natural order of life. However, health and safety are not the only issues we currently face as a state and nation. We are a nation of laws, grounded on a painstakingly, meticulously constructed Constitution. It is our blueprint for self-government and, aside from the Bible, is the most inspired document ever created.

Please also know that the drafters of our Constitution were real people; real men. They had lived real lives and suffered from and been exposed to every hardship life could impose. They had seen war; they had seen plagues and diseases; they had seen the very heavy hand of government, both driving the Pilgrims out of England in the first place and, yet again, when they formed colonies in America. They sought individual and economic freedom; to be able to pray and worship or not pray and worship. And speak out; associate, assemble and petition government for change—along with the many other powerful rights guaranteed by the Constitution. The drafters reflected all of that experience and judgment and prayer, as the basis for the creation of the document. And, they specifically rejected the idea that we must value health and safety over liberty. They didn’t do this because they were irrational and reckless. They did this because as much as they feared plagues, diseases, sickness and even death (and they had access to none of the medical miracles we enjoy today), they feared an authoritarian government more.

I feel, for example, they would have had real reservations about this latest idea of “contact tracing.” It may be the most prudent thing to do from a health and medical standpoint but, as I’ve described, health and safety are not the only considerations. Contact tracers, up to 700 or more people, will identify all individuals in Louisiana who may have come into contact with someone with COVID-19 or those who could develop COVID-19, including household members, intimate partners and those who may have provided a service in their home, as well as anyone who has been in close contact with a potentially infected individual for at least 15 minutes. That’s very broad. That’s alot of “contact.” That’s alot of gathering of medical and health information and, no doubt, privacy and civil liberties issues will arise (not to mention HIPAA issues). My point is that there is no pandemic exception to the Constitution. These fundamental rights don’t exist simply when the nation is calm. They exist in the really difficult times too. Especially then, in fact, is when they are most needed.

This is why a governor or president may not use a health emergency as a pretext to assume and exercise illegitimate power. Period. However, these restrictions, I humbly submit, are not only illegal, but make no common sense. In the Shreveport-Bossier area, for example, people were not allowed to gather in person and celebrate Easter, the holiest Christian day of the year, but Target, Walmart, Walgreens and CVS are all open. People have access to liquor stores but they can’t get a haircut; small business owners can’t have customers come inside, even if six feet apart, and children can’t play in the park. For that matter, if age and a weakened or compromised immune system are major factors, why weren’t nursing homes the focus early on? Louisiana moved quickly but the virus has ravaged nursing homes across the country; Why wasn’t public transportation shut down swiftly instead of the decidedly mixed messages we’ve received? In many cities in this country people are often packed into trains and buses.

Simply stated, there is no rational principle being applied that justifies these arbitrary distinctions. If people can social-distance in Walmart they can also do so in church. Government simply does not possess legitimate authority to take these actions. This unilateral exercise of power is exactly what the Constitution was created to prevent. Healthy people are being forced to remain at home and businesses are hamstrung (while abortions continue unabated). What’s next? Will there be some contrived justification to confiscate guns, seize property, ignore due process? This is not some abstract academic discussion. This is real. It’s happening right now. Let’s remain vigilant.

Royal Alexander is a Shreveport attorney.