Examining the constitutionality of stay-at-home orders

BY MAKENNA ALLEN

What do the World War I Espionage and Sedition Acts have in common with the Emancipation Proclamation of the Civil War? On the surface, it might seem as though these pieces of historical legislation have nothing in common. In reality, however, they share a key element linking them together: the fact they were both unconstitutional in their own time.  

According to Dr. Jay Steinmetz, assistant professor of political science at Fort Hays State University, the Espionage and Sedition Acts deprived Americans of their First Amendment rights. Meanwhile, the Emancipation Proclamation, while just in its intent, proved to be a violation of private property based on definitions of property at the time.

While these pieces of history may seem irrelevant to modern society, they relate closely to the situation many Americans face in light of the COVID-19 pandemic sweeping the nation. As some individuals question the actions of state governments in closing places of business and worship through stay-at-home orders, it is ever-more important for United States citizens to learn about the rights granted to them more than 200 years ago.    

One basic First Amendment right, the freedom of religion, has drawn high levels of attention.  With stay-at-home orders issued in all but seven states, some citizens have begun to question the orders’ constitutionality with regards to the First Amendment as they restrict the practice of religion by limiting the ability of church members to congregate.

The issue became especially apparent in the state of Kansas during the week leading up to Easter Sunday. In a conflict dubbed “The War on Easter,” Republican lawmakers in Kansas gathered to reverse Gov. Laura Kelly’s order restricting church events to 10 people. According to an April 11 Washington Post article, lawmakers claimed the order was an attack on religious liberty. By Saturday evening, the council’s work had been reversed and Kelly’s original order stood.  

Kansas has not been the only state to see conflict regarding religious freedoms. Indeed, on April 12, Fox News reported that in Kentucky and Mississippi, even drive-in Easter Sunday services were blocked. In Mississippi, parishioners of King James Baptist Church and Temple Baptist in Greenville were ordered to leave their services or face a $500 fine.  

Now, as United States citizens question the constitutionality of their state’s emergency orders, it becomes ever more important for citizens to realize the power of the government during such times as these.

According to Steinmetz, even Constitutional Law is subjected to the powers of the government during times of emergency as a result of prerogative power.

“Prerogative power is the power to act outside of and in some cases contrary to standing law in times of emergency,” Steinmetz said. “The U.S. president has extraordinary powers of declaring a national emergency, directing the military to act, and an almost unlimited ability to issue executive orders. These extraordinary powers are not necessarily constitutional — keep in mind that government acts in unconstitutional ways more commonly than you may think.”

Historically, Steinmetz cites liberties abused as cruel and unusual punishment, warrant requirements, search and seizure, due process for the accused and equal protection under the law.  

Most commonly, citizens are stripped of such rights during times of war. Such cases include the First Amendment violation as a result of the Espionage and Sedition Acts of World War I and the loss of private property during the Civil War.

“The Emancipation Proclamation was the largest redistribution of private property in American history, wholly just but wholly unconstitutional,” Steinmetz said.  

Though in the case of the Emancipation Proclamation, the president of the United States exercised his executive power during wartime. National emergencies can become complicated as federal and state governments both work to resolve the situation.  

“The lesson here is that national emergencies that require immediate responses do not require chain of command control between federal and state and local governments,” Steinmetz said. “Government (executive) agencies should respond as best they can to immediate emergencies. But as the emergency moves from immediate containment and response to short-term and long-term mitigation and planning, coordination between federal state and local government agencies should become more coordinated over time, depending on the scope and scale of the emergency.”

In the case of the nation’s response to the COVID-19 pandemic, individual states have responded to the crisis in a variety of manners. However, citizens concerned that their religious freedoms have been violated can find their confidence in the Judicial Branch of government. As was the case with the Espionage and Sedition Acts of the early 20th century, the system of checks and balances works to ensure the rights of Americans for years to come.

Citizens interested in exploring in more detail our constitutional rights with respect to slavery and the Civil War can view Steinmetz’s recent Constitution Day presentation.

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