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Horowitz: Cuomo admits ‘fear,’ not science, driving his restrictions on New York’s Jewish community

'It's not the best way to do it, but it is a fear-driven response'

Spencer Platt/Getty Images

As the virus continues to spread (with a low death rate) despite months of restrictions and mask-wearing, politicians keep returning to the same failed ideas in an attempt to stop the unstoppable. This exercise in repetitive insanity — trying the same thing over again and expecting different results — is certainly not being driven by science, but rather by fear, according to a recent phone recording of New York Gov. Andrew Cuomo.

It's been a shocking few weeks in New York City as an American governor in 2020 is explicitly targeting a sect of orthodox Jews for restrictions on their First Amendment rights to pray in synagogues. In recent days, he dispatched an army of public health officials to Jewish neighborhoods in Brooklyn to issue thousands of dollars' worth of citations. Now, Cuomo is admitting that it's not science or even anti-Jewish animus driving his latest power play, but the politics of fear and panic.

Earlier this week, Hamodia, a local Jewish community publication, posted 30 minutes of audio (beginning at 19:00) of a conversation between Gov. Cuomo and Jewish community leaders last Tuesday. In response to a question by one local rabbi as to why the governor is setting impossible standards, even on the reopening of preschools that had no cases or risk of serious illness, Cuomo offered a stunning admission that sheds light on what is driving all of these draconian measures all over the world.

"This is not a highly nuanced, sophisticated response," conceded the New York governor. "This is a fear-driven response. You know, this is not a policy being written by a scalpel. This is a policy being cut by a hatchet. It's just a very blunt."

In other words, the First Amendment, the right to pray, attending school, and opening a business are all subject to fear-driven hatchets. Imagine the absurdity of a private physician saying they will perform an operation with a hatchet instead of a scalpel. This, however, is "public health," driven by the "experts."

In addition to trying to shunt the blame off to New York City Mayor Bill de Blasio, Cuomo further admitted that what is driving these decisions is public fear and a clamor for action, regardless of whether there is any science behind that action. "I didn't propose this, you know. It was proposed by the mayor in the city. I'm trying to sharpen it and make it better, but it's out of fear. People see the numbers going up. Close everything! Close everything! It's not the best way to do it, but it is a fear-driven response.'"

But what about all the collateral damage? That never factors into the stampede of panic.

"The virus scares people. ... The fear is too high to do anything other than: Let's do everything we can to get the infection rate down now. Close the doors. Close the windows. That's where we are."

According to local Jewish community leaders, despite that candid admission, Cuomo himself later acted out of fear with a hatchet and violated his own promise on the phone call. During that conversation last Tuesday, Cuomo asked them to limit indoor gatherings to 50% capacity. But just several hours later, during a Jewish holiday, Cuomo announced that all synagogues would be limited to just 10 people, which essentially shuts their doors.

In what some see as an invidious targeting of the Jewish community, the mayor recently announced a $1,000 fine for those not wearing masks, even outdoors, while the fine for not wearing one on public transportation is only $50.

Over the weekend, $15,000 of fines were levied against individuals and institutions among a sect of orthodox Jews in Brooklyn.

What is shocking from a legal perspective is how all of our First Amendment jurisprudence has been abrogated at the altar of this cult of fear. For decades, the courts have articulated a standard of strict scrutiny for any governmental action taken against First Amendment rights. This jurisprudential standard subjects the policy to a litmus test of being "narrowly tailored" and the "least restrictive" means of achieving a compelling state interest. In other words, constitutional rights are by definition hallowed ground that cannot be trod upon with a hatchet, a blunt instrument, or a "do everything" approach. There are no exceptions to this rule. As Justice Robert Jackson famously said, the Founders "made no express provision for exercise of extraordinary authority because of a crisis."

The foundation for the legal argument of the coronavirus tyrants is Jacobson v. Massachusetts (1905), wherein the Supreme Court ruled, "It is within the police power of a State to enact a compulsory vaccination law." Putting aside the fact that this case cannot be reconciled with everything the courts have said about individual liberty and a supposed right to privacy over the last 60 years, even the Jacobson court ruled that public health measures cannot be enacted in "such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public." In other words, this forecloses on exactly what Cuomo and his ilk are doing, as articulated in his own words.

States have always had the power to quarantine, but those policies were very targeted to those who had an illness and they were limited in time and scope. The notion that an entire civilization could be locked down indefinitely after months of those policies clearly not working is absurd and well beyond the police powers of a state.

Nowhere was this principle better articulated than in New York's own court in The People vs. Peter W. Roff (1856). "The public health is doubtless an interest of great delicacy and importance," wrote the court regarding a state quarantine law. "But it can never be permitted that, even for the sake of the public health, any local, inferior board or tribunal shall repeal statutes, suspend the operation of the Constitution, and infringe all the natural rights of the citizen."

Too bad our forefathers never had the foresight to discover the "fear" and "hatchet" exceptions to fundamental rights expressed in the Constitution.
One last thing…
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