I found a transcript of the speech at Reason. Excerpt:
The pandemic has obviously taken a heavy human toll... The pandemic has resulted in previously unimaginable restrictions on individual liberty.... [W]e have never before seen restrictions as severe, extensive and prolonged as those experienced, for most of 2020.
For brevity, I'm editing out a lot of cautioning about not taking this the wrong way. He's cushioning these remarks. Don't think he's not sympathetic to the victims of the disease.
Think of all the live events that would otherwise be protected by the right to freedom of speech, live speeches, conferences, lectures, meetings, think of worship services, churches closed on Easter Sunday, synagogues closed for Passover on Yom Kippur War. Think about access to the courts, or the constitutional right to a speedy trial.... [T]he COVID crisis has served as a sort of constitutional stress test. And in doing so it has highlighted disturbing trends that were already present before the virus struck.
One of these is the dominance of lawmaking by executive. Fiat rather than legislation. The vision of early 20th century progressives and the new dealers of the 1930s was the policymaking would shift from narrow minded elected legislators, to an elite group of appointed experts in a word, the policymaking would become more scientific. That dream has been realized to a large extent. Every year administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarfs the statutes enacted by the people's elected representatives. And what have we seen in the pandemic sweeping restrictions imposed for the most part, under statutes that confer enormous executive discretion?
We had a covid related case from Nevada. So I will take the Nevada law as an example. Under that law, if the governor finds that there is, quote, a natural technological or manmade emergency, or disaster of major proportions, the governor can perform and exercise such functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population. To say that this provision confers broad discretion would be an understatement. Now, again, let me be clear, I'm not disputing that broad wording may be appropriate in statutes designed to address a wide range of emergencies, the nature of which may be hard to anticipate, and I'm not passing judgment on this particular issue.
I want to make two different points.
First, what we see in this statute, and and what was done under it is a particularly developed example of where the law in general has been going for some time, in the direction of government by executive officials, who were thought to implement policies based on expertise — and in the purest form, scientific expertise.
Second, laws giving an official so much discretion can of course, be abused. And whatever one may think about the COVID restrictions, we surely don't want them to become a recurring feature after the pandemic has passed. All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes....
[W]hen the constitutionality of COVID restrictions has been challenged in court, the leading authority cited in their defense is a 1905 Supreme Court decision called Jacobson v. Massachusetts. The case concerned an outbreak of smallpox in Cambridge, and the Court upheld the constitutionality of an ordinance that required vaccinations to prevent the disease from spreading.... [The Court] rejected a substantive due process challenge to a local measure that targeted a problem of limited scope. It did not involve sweeping restrictions imposed across the country for an extended period. And it does not mean that whenever there is an emergency, executive officials have unlimited unreviewable discretion.
Just as the COVID restrictions have highlighted the movement toward rule by experts, litigation about those restrictions has pointed up emerging trends in the assessment of individual rights.
This is especially evident with respect to religious liberty. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.... When a Supreme Court decision called Employment Division v. Smith cut back sharply on the protection provided by the Free Exercise Clause of the First Amendment. Congress was quick to respond. It passed the Religious Freedom Restoration Act, RFRA, to ensure broad protection for religious liberty. The law had almost universal support...
Over the summer, the Supreme Court received two applications to stay COVID restrictions that blatantly discriminated against houses of worship, one from California, one from Nevada. In both cases, the court allowed the discrimination to stand. The only justification given was that we should defer to the judgment of the governors because they have the responsibility to safeguard the public health.
Consider what that deference meant in the Nevada case. After initially closing the state's casinos for a time the governor opened them up and allowed them to admit admit 50% of their normal occupancy. And since many casinos are enormous, that is a lot of people. And not only did the governor open up the casinos, he made a point of an inviting people from all over the country to visit the state. So if you go to Nevada, you can gamble, drank and attend all sorts of shows. But here's what you can't do. If you want to worship and you're the 51st person in line, sorry, you are out of luck. Houses of worship are limited to 50 attendees. The size of the building doesn't matter. Nor does it matter if you wear a mask and keep more than six feet away from everybody else. And it doesn't matter if the building is carefully sanitized before and after a service.
The state's messages this forget about worship and head for the slot machines, or maybe a Cirque du Soleil show.
Now deciding whether to allow this disparate treatment should not have been a very tough call. Take a quick look at the Constitution. You will see the Free Exercise Clause of the First Amendment which protects religious liberty, you will not find a craps clause or a blackjack clause or a slot machine clause.
Nevada was unable to provide any plausible justification for treating casinos more favorably than houses of worship. But the court nevertheless deferred to the governor's judgment, which just so happened to favor the state's biggest industry and the many voters it employs....
Support for freedom of speech is also in danger. And COVID rules have restricted speech in unprecedented ways. As I mentioned, attendance at speeches, lectures, conferences, conventions, rallies, and other similar events has been banned or limited. And some of these restrictions are alleged to have included discrimination based on the viewpoint of the speaker.... Even before the pandemic, there was growing hostility to the expression of unfashionable views.... You can't say that marriage is the union between one man and one woman. Until very recently, that's what the vast majority of Americans thought. Now it's considered bigotry...
Of course, the ultimate second tier constitutional right in the minds of some is the Second Amendment right to keep and bear arms....
41 comments:
Bravo.
Ivor Cummins' new video compares Ireland and Sweden. Ireland had strict lock-down restrictions, and Sweden had practically no lock-down restrictions.
Of all the rights we have, the right to peaceably assemble seems to be the only one being respected. And even then, it is only if in protest, and not assembling for reasons like work, church, family life.
Protesting has become the ONLY right that is unrestricted.
Policy by expertise rather than legislation. Even Trump, by letting Fauci dictate covid response, bowed to this. The man we elected to *not give more power to the Deep State mindset couldn't resist this trend.
"Unimaginable restrictions"? Oh, I think our friends the leftists imagined them long ago.
Sick people belong in quarantine not healthy people. There is no science or law to support ANY lockdowns. Period.
Lincoln Project and Republican are two different parties Chuck.
Not true, the FedSoc convention is recorded and open to the public. You have to buy a ticket, but so does everyone, including FedSoc members.
Take a quick look at the Constitution... you will not find a craps clause or a blackjack clause or a slot machine clause.
Did he check behind the right to abortion clause?
It's always in the last place you look!
Kate is right about referring to experts, although there were more actors than Dr. F calling for radical measures. I do find it interesting and kind of sad that Trump chose a cautious course of “two weeks to stop the spread” and even though this was more “action” than any other president ever took in a public health crisis, he is criticized by (literally a do-nothing guy like Joe who literally did nothing to address H1N1) small minded people for doing “nothing.” Without any evidence of “inaction” he is slandered by every Democrat. For taking the cautious approach and not causing mass panic he is vilified. Although he urged people to get back to normal, he is slandered as wrecking the economy. But we DID NIT suffer 2 million deaths. What he told woodhead from WaPo was true: his job is to keep calm and carry on not stoke fear and division like the LLRs of Lincoln and the Democrats. History will not be kind to the Democrats when this is over.
I'm reading this post after hearing part of a speech by Biden's advisor Michael Osterholm calling for a 4 to 6 week national lockdown to be paid for by borrowing against "the personal savings" of the American people. You can't go to work, you can't go to church, you can't invite family for Thanksgiving, you must wear a mask, and oh by the way, you can hand over your piggy bank.
synagogues closed for Passover on Yom Kippur War
It looks like Otter.ai transcription needs a lookover for editing before publish.
It has become one of my concerns lately:
• we already see the press dropping ellipses into quotes to completely change the meaning.
• we already see groups mining video of politicians and influential broadcasters like Rush to pull out of context quotes and make a thing of them.
• Once people are primed by an edited quote or (deliberately?) misheard transcription, it is really hard to convince them that there might be a more innocuous meaning that should be considered under the principle of charitable interpretation.
We Lincoln Project Republicans have never had any legal-ideology issues with Alito or his conservative brethren.
Except that the guy you voted for, and Lincoln Project Republicans voted for and stumped for, would NEVER have had Alito on the USSC in the first place.
Irony is always lost on someone who's filled with hate.
Alito seems to be on the same wavelengh as Lord Sumption, former Justice of the United Kingdom Supreme Court. If you search for his Freshfields lecture at Cambridge on the legislative response to Coivd, you will find an elegant and cogently argued classical liberal defence of liberty, which identifes the very questionable use of legislative powers for imposing restrictions that go much further than could ever have been contemplated when those powers were granted.
Of course the lockdowns are the direct result of people like you not following the most basic and simple public health measures like mask wearing which are proven to reduce the spread, presumably because of one or more of the following reasons:
1. You are morons who believe whatever you happen to Google or read on the FB feed as opposed to the opinions of ALL infectious disease experts and their peer reviewed studies,
2. You are a baby who finds masks to be too uncomfortable,
3. You are vain and probably don't realize that you look better with a mask than without one (like DJT)
4. You are selfish and have no understanding of the concept of helping your fellow man. I.e., you don't belong in a civilized society.
Ive linked what dave cullen dissident commenter has noted about the ultimate
Goal 'the great reset'
Ideas less hysterically received on the Left when the justice was William O. Douglas and the book was "Points of Rebellion" (1970).
What is going to be interesting is how does this presage what we are going to see out of a putatively 6-3 conservative Court, and esp in regards to the election disputes. COVID-19 was utilized as the pretext to grossly violate election laws across the country, in order to force a win for Biden. That was repeatedly given as the reason why Republican poll workers, etc, were not allowed to see the ballot counting up close, why mail in balloting was so liberalized, etc. Yes, it was very much a pretext. But the justification was always fighting COVID-19.
I think that Justice Alito showed his hand with how he is handling the cases in PA. I expect to see many tens of thousands, if not hundreds of thousands, of ballots there disqualified, on the grounds that while the Secretary of State there has a lot of discretion, when it comes to responding to COVID-19, that doesn’t extend to violating the black letter of election law. And she, along with the other Democrats, clearly did
I think that he will have four very willing accomplices (Justices Thomas, Gorsuch, Kavenaugh, and Barrett) to form a working majority, ultimately imposing limits on how much discretion that the state Executives (which includes their Secretaries of State) have in the face of an “emergency”, like this pandemic.
It’s an interesting problem. State (and federal) Executives have discretionary power from two sources. One is that they they are implicitly, or explicitly, given that power through their respective constitutions. For example, the US Constitution gives the President exclusive Executive power in the first sentence of Article II. Secondly, that power is both expanded, and limited by statutes by their Legislatures passing bills, and their Executive’s signing them into law. But there are well developed canons of construction, that would typically result in more specific, later enacted, election laws trumping earlier legislation giving the Executive broad discretion. And a somewhat similar argument can be made that the narrower protection of securing a Republican form of government trumps the broader constitutional power given to the Executive.
Justice Thomas has been troubled for years by the growth of the power of the administrative state. Alito seems to be joining him. I remember when Justice Gorsuch’s mother was a force in CO (and briefly National, under Reagan) politics, by championing individual liberty over government. Her son can, I think, at least be expected to take those arguments seriously. I have seen little to make me think that Justice Barrett won’t do the same, and her not having gone to an Ivy League LS may be critical here. That leaves Justice Kavenaugh and CJ Roberts. I expect that both are a bit squishy in this regard. But hopefully not too squishy, to help push back against overreach by the administrative state.
Bruce - None of Trump's BS cases will reach the Court. Also, you may not know this but the late arriving votes in Penn have not yet been counted and their exclusion will not impact the reported vote totals and Biden's 50,000 plus lead.
steve uhr - why are Trump's cases "BS" cases?
Indeed
https://www.theblaze.com/op-ed/commentary-mask-wearing-fanaticism-looks-a-lot-like-a-religion?utm_medium=push&utm_source=pushnami
Ironically, you can't go see Cirque because it's all shut down and bankrupt. Or so I hear.
Nice to know someone on the Court is paying attention tho.
This is good to hear.
"'Liberty'? What is this 'liberty' you speak of?" Obama wonders aloud.
“ 1. You are morons who believe whatever you happen to Google or read on the FB feed as opposed to the opinions of ALL infectious disease experts and their peer reviewed studies,”
And I say to you that you sound very foolish. It is called arguing by resort to authority. Peer reviewed in such a politically contentious situation means that the article conforms to the liberal orthodoxy. Nothing more. We have seen since at least ClimateGate this dynamic for what gets published in climate “science”. And we have seen it here too, with, for example HCQ positive papers being suppressed and intentionally not published. My kid, having gotten their STEM PhD in the PRB (People’s Republic of Boulder), carefully curates and selects articles on masking to send me, which I dutifully read. None so far have actually involved any real statistical look at slowing COVID-19 transmission, through masking. What they do have is a lot of analogizing and theorizing. Sure properly worn and frequently replaced decently protective masks may prevent some transmission of this virus, based on somewhat similar viruses. But, of course, masks are often not worn properly, aren’t frequently changed, and many of the face coverings in use have negligible screening capabilities for the SARS-CoV-2 coronavirus. All complications that have been conveniently assumed away. And no account is ever taken of carrying an increasing load of pathogens around on your mask all day, as you continue to wear it (remember - doctors don’t reuse masks, and change them between patients, which now days often means every 15-20 minutes). Little different from jumping from CO2 being a greenhouse gas, to the conclusion that the earth is going to burn up and everyone is going to die, if we don’t immediately ban all use of hydrocarbons. And NOAA fudged the data to look like the theories were accurate (making a flat temperature trend look like warming is occurring).
“Bruce - None of Trump's BS cases will reach the Court. Also, you may not know this but the late arriving votes in Penn have not yet been counted and their exclusion will not impact the reported vote totals and Biden's 50,000 plus lead.”
I think that I can speak for a lot of us here: Ha! Ha! Ha!
steve uhr,
Leave the masks aside for a moment. Let's talk about social distancing, shall we? I have been closer than six feet to anyone not my husband only a handful of times in the last eight months, and those only for the briefest of moments. I have not been protesting/rioting/looting, or throwing Biden victory parties. But all of the above are allowed, if not celebrated, by the same people purporting to follow the "medical expertise" that you cite wrt masks. (For the record, I wear masks myself -- not when walking by myself, but whenever entering a building not my own house; I couldn't buy groceries otherwise.)
Tell me, why is it OK for Chris Cuomo to get his hair cut in an indoor salon at a time when that was forbidden to ordinary residents of his state? Why could Andrew Cuomo's wife use a gym that was forbidden to ordinary residents of her state? Why was it OK for Muriel Bowser to travel to Delaware with a bunch of her staff to celebrate with the Bidens at a crowded party, and then come back to DC and not quarantine herself for two weeks as she demands that the ordinary DC schlub who visits Delaware must do? What's so goddamn "essential" about her "essential travel" that couldn't be handled by Skyping? Why did Gretchen Whitmer's husband think it was obviously OK for him to take his boat out, though his wife had forbidden sailing to all Michiganers? (He was stopped; score one for the MI police.) &c.
MayBee,
Not only is the "right to peaceably assemble" restricted now to protests (and Biden block parties), but some protests count and others don't. If you are in MI, say, and protesting the lockdown, you can space yourselves meticulously six feet apart and wear masks, and your "assembly" will still be attacked as dangerous to the public health.
¡El Don Hayden es en fuego!
While the very broad powers granted to Governors are deeply disturbing, even more disturbing is that these powers are granted for unlimited term, and without any provision for review, judicial, legislative or electoral. Essentially, a Governor who declares an emergency declares herself Dictator For Life, and can take any measures she deems necessary, including, it would seem, suppressing the election that might replace her. We must grant, however, that this is not primarily a fault in the Governors, faulty though they may be. The fault lies in the measures drafted by the legislatures.
MDT - Don't put words in my mouth. I never said any of the activity you describe is okay. If it violates CDC Guidelines than it is not okay regardless of who did it or the circumstances.
steve uhr has posted a lot of crap. He reminds me of the AZ SoS who called Trump supporters "Neo Nazis."
George Soros spent a lot of money the past few years on these minor state offices. He is getting his money's worth.
steve uhr,
I didn't say you personally said it was OK; I said that the people purportedly following the same medical "experts" you approve apparently think it's OK:
But all of the above are allowed, if not celebrated, by the same people purporting to follow the "medical expertise" that you cite wrt masks.
Fwiw, some of those have nothing to do with "CDC Guidelines," anyway. Whitmer's sailing ban (and gardening ban, and Heaven knows what else) can't be blamed on the CDC. The CDC itself doesn't shut down salons, or gyms, or force anyone visiting Delaware to self-quarantine for 14 days. It's state governors and the Mayor of DC that have done these things. And the "mostly peaceful" protests and the Biden block parties, which were against CDC Guidelines, have taken place because entitled people felt like it, and the police were understandably reluctant to intervene.
“If it violates CDC Guidelines than it is not okay regardless of who did it or the circumstances.”
“They’re more guidelines than actual rules.” —Capt. Barbosa.
Blogger Jupiter said...
While the very broad powers granted to Governors are deeply disturbing, even more disturbing is that these powers are granted for unlimited term, and without any provision for review, judicial, legislative or electoral. Essentially, a Governor who declares an emergency declares herself Dictator For Life, and can take any measures she deems necessary, including, it would seem, suppressing the election that might replace her. We must grant, however, that this is not primarily a fault in the Governors, faulty though they may be. The fault lies in the measures drafted by the legislatures.
Congress retains the power to intervene on the basis of the US Constitution's Republican Guarantee Clause (Article IV, Section 4). "The United States shall guarantee to every State in this Union a Republican Form of Government . . ."
http://ace.mu.nu/archives/391261.php
Because "spending time with your family" is unimportant.
By celebrating Democrat victories IS important.
Here's hoping we now have a Supreme Court that isn't going to play that game any more.
And we have seen it here too, with, for example HCQ positive papers being suppressed and intentionally not published.
The are waiting for a double-blind study, but what we have is positive effect of in vitro tests, a well-established low risk profile, and global reports (i.e. signal diversity) that the HCQ cocktail alone reduces disease progression and mortality by 80 to 90% with early low dose treatment. HCQ acts as border guard (enables Zn entry, impairs SARS-CoV-2). Zn inhibits viral viability. Az controls bacterial infection and inflammation.
Sure properly worn and frequently replaced decently protective masks may prevent some transmission of this virus
Exactly. The CDC recently posted a peer-reviewed meta-analysis of singular, isolated reports of mask efficacy to reduce infection. What they did not post was a peer-reviewed report from the early 80s of reduced patient infections in surgical centers across the country when the staff were not masked. They are even less effective for sub-micron particles, droplets (that evaporate) notwithstanding. WHO, with good cause, and Fauci, too, did not recommend masks for general use. In part, because they have limited utility, and create a false sense of safety, thereby lulling people to disregard effective precautions.
The following is report on mask(s) efficacy:
Masks
This one is about transmission modes and recommendations:
Dr. Elisabeth Bouvet
table 3: infection-control procedures... of common respiratory viruses
contact and droplets -
masks: not routinely recommended
surgical masks: diminish large-particle exposure
airborne -
cover the eyes, nose, and mouth are preferred
Postoperative wound infections and surgical face masks: a controlled study
Masks may be used to protect the operating team from drops of infected blood and from airborne infections, but have not been proven to protect the patient operated by a healthy operating team.
What they have discovered from onboard ship to hospital wards to isolated complexes to construction sites is that the primary asymptomatic transmission mode is consistent with fecal (contact). Masks are either unproductive or counterproductive in specialized use, and more so in general use. The proponents of universal restrictive mandates (see polio, measles), are fortunate that a large minority and perhaps majority have preexisting immunity, or responsive immune systems to mitigate disease progression, and that viral transmission had reached peak exponential spread before the mandates were enforced in many, most populations. Planned Parent, notably, excluded.
That said, people who wear masks, really should wear goggles, too, in order to complete their ensemble. The eyes are a window to contagion.
Because "spending time with your family" is unimportant.
There is evidence that self-abortions have been a progressive condition during social isolation and distancing. Wouldn't it be a tragic comedy if they were classified as Covidd-19 deaths.
A judge in CA has ruled that strip clubs may reopen. First amendment.
Churches are still closed. Democrats at work.
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