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

Argument

I. Sovereignty

Justice James Wilson wrote one of four brief Supreme Court majority opinions for Chisholm v. Georgia 2 U.S. 419 (1793) citing it was the people of the United States that are the sovereign power, not the state or federal governments. Chisholm held that citizens had a right to sue state governments. Wilson’s opinion was joined by fellow Constitutional Conventionalist John Blair, Chief Justice John Jay (author of five Federalist Papers), and William Cushing. In fact, Wilson, Edmund Randolph, and Oliver Ellsworth were on the five-member committee responsible for drafting the Constitution. This committee took proposals from Constitutional Convention members and wrote document drafts, which were reviewed, debated, and edited by the entire convention. Without a doubt, these Founders understood the meaning of Constitution better than anyone in United States history. At the Pennsylvania ratifying convention Wilson proclaimed, “[I]mpartiality is the leading feature, there ought to be a tribunal in which both parties (state and citizen) stand on a just and equal footing.” Attorney General Edmund Randolph, who defended Chisholm, said although states are sovereigns, governments were created for the happiness of the people. Randolph understood protecting the rights of the people was the primary purpose of governments.

Some argue that the passage of the Eleventh Amendment made the holding in Chisholm moot. However, Justice John Marshall’s opinion in Fletcher v. Peck 10 U.S. 87 (1810) held suing state governments may no longer be in the Constitution, but Chisholm was correct and provided the proper meaning of the Constitution. In other words, the Eleventh Amendment does not change the meaning of the Constitution, it merely prohibits citizens (from different states) from suing states. Marshall’s exact words in Fletcher were,

The Constitution, as passed, gave the courts of the United States jurisdiction in suits brought against individual States. A State, then, which violated its own contract was suable in the courts of the United States for that violation. Would it have been a defense in such a suit that the State had passed a law absolving itself from the contract? It is scarcely to be conceived that such a defense could be set up. And yet, if a State is neither restrained by the general principles of our political institutions nor by the words of the Constitution from impairing the obligation of its own contracts, such a defense would be a valid one. This feature is no longer found in the Constitution, but it aids in the construction of those clauses with which it was originally associated.

Therefore, Marshall does not necessarily think Chisholm was completely repudiated by the Eleventh Amendment. In Marshall’s view, Chisholm was a sound decision whose principles still represent legitimate constitutional jurisprudence. Put another way, citizens are still sovereign within the structure of the Constitution and the Eleventh Amendment was not an open invitation for states to violate the rights of its citizens.

II. Rights

The Privileges and Immunities Clause of Fourteenth Amendment provides, “No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States.”

The due process clause of the Fourteenth Amendment provides, “nor shall any state deprive any person of life, liberty, or property, without due process of law.”

The Ninth Amendment provides, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

There are fundamental rights of individuals that government is to preserve at all cost. These rights, liberties, freedoms, and privileges and immunities are defined in the Declaration of Independence, the Northwest Ordinance (1787), the Constitution (1789), the Bill of Rights, the Civil Rights Act of 1866, Calder v. Bull 3 U.S. 386 (1798), Corfield v. Coryell 6 Fed. Case 546 No. 3,230 C.C.E.D Pa (1823), Allgeyer v. Louisiana 165 U.S. 578 (1897), and Meyer v. Nebraska 262 U.S. 390 (1923). Those privileges and immunities defined in the Fourteenth Amendment include the right to work, play, friendships (associations), marriage, health, life, safety, happiness, liberty, property, contracts, knowledge, enjoyment of nature and arts, self-defense, self-preservation, religion, family, free speech, the right to vote, travel, and justice.

The Constitution protects several fundamental rights. Article I, Section 9, Clause 2 and 3 provide:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed.

The above procedural rights protect the fundamental right to justice. The writ of habeas corpus provides no one is jailed without receiving the full benefits of the judicial system; prohibiting ex post facto laws protects people from being jailed for retroactive laws; and prohibiting a bill of attainer law which would find persons guilty without a trial. The contract clause, defined in Article I, Section 10, Clause 1 of the Constitution, is also a natural law fundamental right protected by the Constitution.

The Bill of Rights protects freedom of speech, freedom of expression, freedom of association, freedom of press, freedom of religion, gun rights for self-defense, and property rights. The other procedural clauses in the Bill of Rights protects everyone’s right to justice similar to those provisions discussed in the previous paragraph. In other words, these clauses protect our inalienable right to be presumed innocent of any crime. These clauses provide the fundamental right of justice through procedures such as a jury trial, a right to a unanimous verdict by a jury for conviction, a right to a speedy trial, a right to face the accuser, a right to no cruel and unusual punishment, a right to grand jury protections, a right to no illegal search and seizures, a right to no self-incrimination, and a right to an attorney.

In Calder v. Bull 3 U.S. 386 (1798), Chief Justice Samuel Chase defined some fundamental rights as:

A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A. and gives it to B.: it is against all reason and justice, for a people to entrust a legislature with such powers; and therefore, it cannot be presumed that they have done it. The genius, the nature and the spirit of our state governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them.

In 1823, Circuit Judge Bushrod Washington wrote the opinion for Corfield v. Coryell 6 Fed. Case 546 No. 3,230 C.C.E.D Pa (1823) This court upheld a New Jersey law that prohibited non-residents from gathering oysters and clams from state waters. Washington refused to apply Article IV, Section 2 of the Constitution which states, “Citizens of the several states are allowed to participate in the all the rights which belong exclusively to the citizens of any other particular state.” Washington explained that Article IV, Section 2 of the Constitution “did not guarantee equal access to all public benefits a state may choose to make available to its citizens.” Instead, Washington pointed out that Article IV, Section 2 of the Constitution only “applied to those rights which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.” Washington defined our rights in the Coryell decision as follows:

Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. Furthermore, Justice Washington opined that the privileges and immunities enjoyed by citizens of each state when in other states include: The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state.

The Civil Rights Act of 1866 provides that people have the right:

To make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefits of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

The passage of the Fourteenth Amendment, two years later in 1868, was necessary to enforce the Civil Rights Act of 1866 since many did not believe Congress had the power to pass civil rights legislation via the Constitution or the Thirteenth Amendment.

In Allgeyer v. Louisiana 165 U.S. 578 (1897), Justice Rufus Peckham held in a unanimous decision:

The ‘liberty’ mentioned in [the Fourteenth] amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts, which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.

In Meyer v. Nebraska 262 U.S. 390 (1923) Justice James McReynolds held:

Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

The first three Articles of the Northwest Ordinance of 1787 (drafted before the Constitution) held:

Article 1. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.

Article 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, for which the proof shall be evident or the presumption great. All fines shall be moderate, and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and, should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.

Article 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools, and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.