Stay at home orders Amicus Brief (Part V)

Hierarchy of Rights

Unfortunately, there are dozens of cases when SCOTUS gave more credence to some fundamental rights over others. For example, many cases dispute that rights found in the Bill of Rights are equal. For instance, one can surmise freedom of speech is a fundamental right everyone is born with. However, it is not as easy to argue that those procedural rights found in the Sixth Amendment (trial by jury, grand jury indictment, and 12 men unanimous jury) are fundamental. This observation may be true, but the government can create laws to protect fundamental rights such as a person’s fundamental right to justice or due process of the law. Hence, the rights enumerated in the Bill of Rights are all equal and critical to protect. For example, in Duncan v. Louisiana 391 U.S. 145 (1968), SCOTUS was correct to apply the Sixth Amendment right to trial by jury to the states via the Fourteenth Amendment. It was not good enough to espouse whether or not someone MAY have received a fair trial. On the contrary, it is important that someone DID receive a fair trial!

On the other hand, SCOTUS was wrong when it decided in Williams v. Florida 399 U.S. 78 (1970) 12 men juries were not essential for human justice. The Court was also wrong in Apodaca v. Oregon 406 U.S. 404 (1972) to insist unanimous verdicts were not required to ensure human justice. Sure, procedurally someone MAY have received a fair trial, but without eliminating human and enforcement errors from the equation, it is impossible to say that a person, without any doubt, DID receive a fair trial and henceforth true justice. Williams and Apodaca created a method of selective incorporation of the Bill of Rights to the states. These decisions are wrong because it creates a hierarchy of rights and clauses in the Constitution when none exists. Consider the headaches Williams and Apodaca produces, for instance, when SCOTUS decided in Ballew v. Georgia 435 U.S. 223 (1978) that five-man juries were too small. Why twelve, such a random number in Williams, but five is too small in Ballew? By straying from the original meaning of the Ninth and Fourteenth Amendments SCOTUS creates unnecessary conundrums, which allow for judges to input biases and opinions while denying fundamental rights.

In Prout v. Starr 188 U.S. 537 (1903) Justice George Shiras dispels the myth that clauses, amendments, and provisions found within the Constitution are not equal. Furthermore, if all provision are equal then it can be scientifically proven that all rights equal. Shiras wrote: The Constitution of the United States, with the several amendments thereof, must be regarded as one instrument, all of whose provisions are to be deemed of equal validity. It would, indeed, be most unfortunate if the immunity of the individual states from suits by citizens of other states, provided for in the 11th Amendment, were to be interpreted as nullifying those other provisions which confer power on Congress to regulate commerce among the several states, which forbid the states from entering into any treaty, alliance, or confederation, from passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or, without the consent of Congress, from laying any duty of tonnage, entering into any agreement or compact with other states, or from engaging in war, all of which provisions existed before the adoption of the 11th Amendment, which still exist, and which would be nullified and made of no effect if the judicial power of the United States could not be invoked to protect citizens affected by the passage of state laws disregarding these constitutional limitations. Much less can the Eleventh Amendment be successfully pleaded as an invincible barrier to judicial inquiry whether the salutary provisions of the Fourteenth Amendment have been disregarded by state enactments?

Placing Limitations on Rights

Many laws such as campaign finance and some abortion laws limit the free speech of some persons. For instance, laws restricting campaign contributions or restricting pro-life groups from protesting within so many feet from abortion clinic enterances. Although limitations are less intrusive, equal rights for all suggest everyone has the same opportunity to use their rights. Someone using their rights more than someone else does not equate to an injustice.

Conclusion

The findings in this brief are four-fold: First, since sovereignty resides with United States citizens fundamental rights cannot be abridged for any reason. Second, the list of both enumerated and unenumerated fundamental rights defined in early court cases and laws is vast. Unenumerated rights should be protected by the privileges and immunities or due process clause of the Fourteenth Amendment and the Ninth Amendment. Third, denying or disparaging fundamental rights has been routinely accomplished in the name of national crisis using evasive methodology, rational basis scrutiny, and a hierarchy of rights. Fourth, the government wants to protect the health, safety, and welfare of citizens but at the same time other citizens are willing to risk their health and welfare in favor of other fundamental rights. Both sides have a valid argument. Hence, a temporary and less evasive limitation on rights would be a good compromise when faced with a national crisis. Moreover, those affected the most by Covid 19 pandemic (older retirees) and those citizens primarily affected by the economy (young workers) are for the most part mutually exclusive. Thus, it makes little sense to have mandatory stay-at-home orders for everyone. It would be much easier for governments to provide options to citizens so they can prioritize their rights. For instance, it should be possible for people to go to work or to visit a park but with reasonable restrictions or guidelines to protect the health and well being of other citizens. If, on the other hand, some citizens want to prioritize their health and safety, then they can choose to do so and stay at home. The bottom line, it is possible to find some middle ground to protect the rights of all equally. This is the best way to find balance to protect life and mitigate the disastrous effects the pandemic has had on the economy.