Quarantine and Isolation: What are your Constitutional rights? How does this impact your personal liberty for the cause of social liberty?

When the Founding Fathers convened the constitutional convention over 250 years ago, they were very familiar with pandemic diseases. They had personally witnessed the devastation of smallpox and yellow fever amongst others. They were also familiar with the first quarantine law passed in the colonies, established by the Massachusetts Bay Colony in 1647. With this knowledge, did they include anything in the US Constitution that would provide for a response, activities, or actions in order to prevent the spread of the disease?

What are your rights if government forces a quarantine? Or isolation? What does the US Constitution say, or the law, in regards to your personal liberty in this situation? Who has the authority, the jurisdiction, to do what and under what criteria can they do it?

The events of 2020 are not the first time where people would seem to be willing to give up their personal liberty for the sake of what they perceive will benefit their security and safety. But, how much liberty are you willing to give up if it is a misapplication of power? What if the scenario were more personal? 

What if authorities showed up at your door to take away your 10 year old child, or your spouse, because they have paperwork that says they tested positive?

In order to address these questions, we must understand the difference between quarantine and isolation; they are completely different and each come with a different set of rules and authority.

Under the US Constitution, which we know guides the actions and affairs of the Federal Government as well as the rights and freedoms of its citizens, the federal government does have the authority to isolate IF the disease is on a list of diseases under Executive Order (such as Ebola for example). BUT, the federal government DOES NOT have statutory authority to quarantine. A bit more on this a little later.

What is the difference between isolation and quarantine? Isolation happens when a person, or persons, has been flagged positive for the disease. Quarantine happens when a person, or persons, are believe to have been EXPOSED to the disease but we don’t know for sure yet.

When the Founding Fathers established the Constitution, they retained authority at the Federal Level for Isolation, but they left the authority for Quarantine at State and Local levels. 

Isolation and Quarantine are both legal and necessary, everyone should follow the direction of local and state officials; but, there are limits, as there should be, to this power. What are the criteria? How serious does the disease have to be? When can they call for quarantine? What if the person, or persons, have been misdiagnosed or no evidence of a diagnosis is provided?

People may not care much whether the authority is at federal, state or local level, or, they may not care much about the difference between a quarantine and isolation. But this is also why it is critical that we understand what we are giving up when we give up personal liberty for security and safety, even if it’s the misapplication of power or a false sense of security at the sake of liberty.

We need to follow the direction of authorities but we should also understand the process and the rules for how this would take place. If your child or spouse were taken from your home simply because their paperwork says they have tested positive, would you like to know where they are going?  Would you like to see the paperwork? Would you like to see evidence? What if there was a mistake?

Should your family be hauled off instead of the obnoxious jerk that definitely has the disease but still wants to go to the office party and get everybody infected? Now its personal and due process will matter much more to you.

Webster’s defines “liberty” as: 1)  the quality or state of being free, the power to do as one pleases, 2) freedom from physical restraint, 3) freedom from arbitrary or despotic control, 4) the positive enjoyment of various social, political, or economic rights and privileges.

In a society, we give up certain natural liberties in exchange for civil liberty; however, liberty that is going to be infringed by civil liberty has to be when there is an absolute necessity for the safety of the entire society.

A great example of acceptable infringement of personal liberty that most people would agree with is that the government should do its best to prevent a highly infectious person from infecting others and stop that person from infecting everyone else. But, who should handle this? Federal, State, Local? What is the due process protecting you from abuses of this power?

While the decisions and issues of quarantine are left to state and local governments, they all do it differently, including the use of different criteria. This creates a problem when the disease crosses state lines. This, in turn, is when the federal government gets involved; but under what authority does the FED intervene?

Rolled up into the Immigration Laws is the authority to quarantine people entering the country if they are suspected of having been exposed to a disease – this includes US Citizens returning back to the US from abroad. But, this still creates a legal problem for the FED within the boundaries of the country. The answer to this was to use the Commerce Laws, but……

Some people don’t know that the Center for Disease Control (CDC) falls under the Department of Health and Human Services (HHS). Generally speaking, state and local authorities receive guidance and opinions from the CDC about proper mitigation and response to infections – almost all will request it, so no issues there. But the CDC did not have legal authority; at least they didn’t until the very last day President Obama was in office.  Before going further, we need to understand what a STATUTE is and what a federal REGULATION is.

A STATUTE is a law that is passed by our elected representatives (i.e. Congress). Once passed, it becomes the law of the land.

A REGULATION is a rule that a department or agency head passes down within his/her department. The Department is then expected to follow these regulations. It is important to recognize that an agency Department Head is an appointed bureaucrat,  they were not elected.

Regulations are often challenged in court systems – as they should – to which favor tends to lean more often for the department than the complainant; but not always. The result being that we have courts, more often than not, enforcing rules that are not law, which sets both a legal precedent and a mechanism for appointed officials to influence behavior that they feel is necessary – in their opinion.  

The downward impact of “regulation abuse” can be an infringement on your personal liberty and can be considered an abuse of power. The question then becomes, if it were that important, why does this not get forwarded to Congress to be voted on and passed into law? Great question!

On 19 January 2017, the day before President Trump took office, the Secretary of HHS dropped a regulation and passed it to the CDC, giving them authority that expanded their power in granting broad quarantine actions. This was unprecedented.

I know, people just want the virus stopped, the disease mitigated, so many are willing to give up whatever authority is necessary with little forethought. But, it is exactly in times like this, that we have got to be careful in granting any new power to government, especially the federal government; particularly when it comes to something that will give up your liberty and the liberty of future generations.

So, what can you do if you or a loved one is taken into custody for mandatory isolation or quarantine? You can request a medical review; however, the doctor giving the review will be appointed by the CDC who now, because of the Obama Administration, has the authority to not only isolate you, but also quarantine you.  If that feels wrong, it is.

The final item you can do is request a judicial review, but experts continue to debate if this is valid and actionable. Therefore, you may likely run into walls if you were to attempt this route. Herein is the argument for guarding your personal liberty as much as you can before it is taken from you.  What we need is improved due process without limiting the correct levels of government to fulfill their obligation to protect social liberty.

Can we prevent abuse? This is hard to say and would likely lead to unfounded conspiracy theories. The government should have the right to quarantine and isolate, but it should be the “right” government, and, you should have due process.

Should the FED have control over everything? I sure hope not, this is dangerous and is a path to authoritarianism. However, whatever authority the federal government needs should be taken up as a Constitutional Amendment that would give them that authority. Your personal liberty SHOULD NOT be impacted based on the opinion of an unelected court system or an unelected federal agency head.

And this, my friends, is the truth as we know it today. God bless and may His Spirit continue to guide and protect you.