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Horowitz: States don’t have the constitutional power to place travel bans on each other

We are told that there is essentially nothing state officials can’t do to our bodies and businesses in light of their “internal police powers” to somehow arrest an epidemic. At the same time, those police powers seem to be missing in action as rioters loot, beat, vandalize, and block traffic with impunity. Now, those internal police powers that seem so impotent and dormant are suddenly resurrected to regulate external affairs, such as interstate travel, with many states now placing travel bans or quarantine requirements on even healthy people from other states. It’s time to speak with one voice against this grossly unconstitutional trend.

Isn’t it funny how the courts seem to deny a state the ability to regulate abortion, define marriage and sexuality, and even decline benefits to illegal aliens, but when it comes to corona fascism and banning interstate travel, they could deny the existence of the Constitution – or even the Articles of Confederation!

Even as the Articles of Confederation allowed states to regulate interstate commerce, Art. IV of that founding document states, "the people of each State shall have free ingress and regress to and from any other State." Thus, it’s a no brainer that the Constitution, which was designed to prevent states from banning interstate commerce, certainly bars states from regulating travel of American citizens. As the Supreme Court said in U.S. v. Guest (1966), “a right so elementary [as interstate travel] was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.”

“Indeed, as Justice Stewart reminded us in Shapiro v. Thompson, (1969), the right is so important that it is "assertable against private interference as well as governmental action ... a virtually unconditional personal right, guaranteed by the Constitution to us all." Id., at 643 (concurring opinion),” wrote the high court in the more recent case of Saenz v. Roe (1999).

This right of unrestricted travel within the confines of our great federal union is certainly a part of the Due Process and Equal Protection clauses of the 14th Amendment according to recent judicial case law. For us originalists who don’t interpret those clauses the same way, it is a part of the Privileges and Immunities Clause of the Fourteenth Amendment, which ultimately is sourced in Art. IV, §2, cl. 1 of the original Constitution: “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

These past court cases were dealing with state laws trying to bar residents from other states from seeking welfare. Public transfer programs are positive privileges, not inalienable rights, yet the courts still said that a travel ban cannot block access to those programs. How much more so this should apply to states that are mandating people be locked up in a home for 14 days for simply entering the state without any evidence they are sick.

Yes, the courts have ruled that states have the power to quarantine. But as I’ve noted before, the definition of quarantine is separating the sick from the healthy. The notion that you can quarantine anyone from any designated states, irrespective of their symptoms is unfounded in our Constitution and body of case law.

To essentially place anyone from another state under house arrest for 14 days without due process violates the most basic definition of liberty. Blackstone defined individual liberty as “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” It was from this principle that our Founders wrote the Declaration of Independence and the various state declarations in 1776. This is the definition of “privileges and immunities,” referenced in Art. IV, §2, cl. 1 and the Fourteenth Amendment, as Justice Clarence Thomas has written so many times [see concurrence in McDonald v. Chicago].

These natural rights don’t go away during an emergency. As the great Justice Robert Jackson, the lead prosecutor at the Nuremberg trial and the dissenter in the Japanese internment case, made clear the landmark Youngstown case of 1952, “They [Founders] knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation.”

He added, “We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis.”

In other words, the Constitution doesn’t wear a mask and natural rights do not lock down.

What is also so perverse and ironic about these interstate travel bans is that our government refused to place a travel ban or mandatory quarantine on most people travelling back and forth from Mexico, even as it became a hot spot for the virus in May.

At some point, we must question the mask mandates as well, especially as they have utterly failed to stop the spread. Even if they did help, it’s hard to imagine how one can justify demanding healthy people indefinitely be denied of breathing free air without their mouth covered, now even outside in many places. John Locke explained the origin of this liberty as follows: “To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.”

For government to now suggest that for any purpose, irrespective of their health status, to simply breathe free air and walk in locomotion without taking a positive action to cover one’s face harms others and justifies an arrest of their personage and dignity is a moral hazard that would have shocked the consciousness of any other generation.

If this passes constitutional muster, what else can the government do to you simply for sitting idly? Remember, even Chief Justice John Roberts, in his convoluted thinking in the Obamacare case, was only able to justify forcing a person to actively purchase health insurance based on the assumption that it was a form of taxation. If government can force you to cover your mouth and nose everywhere indefinitely, there is quite literally nothing they cannot mandate.

Thus, as you watch people gather in large numbers to vandalize statues and businesses, just remember they are not the only ones committing violence against the rule of law and the Constitution. The governors, in many ways, are engaging in a more severe and immutable form of violence against our life and liberty. After all, monuments can be rebuilt and buildings can be repaired, but liberty is never restored on its own.

One last thing…
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