Mandatory Quarantines

Finch: The problem is, he knows us better than we know ourselves. That's why I went to Larkhill last night.
Dominic: But that's outside quarantine!
--V for Vendetta

Can government apply a mandatory quarantine policy, where individuals or groups are required to remain in their households in the name of 'public health'? Judge Nap considers the question from a constitutional perspective.

The Declaration and the Bill of Rights are clear: freedom is the default position. Our rights to think, speak, publish, worship, defend ourselves, travel, own property, and to be left alone are natural to our humanity. Government does not grant these rights. Rather, it is government's job to protect these rights.

Unfortunately, 200+ years of political and judicial interest have stretched government authority far beyond the boundaries established by our founding ancestors. As government power has expanded, liberty, by definition, has declined.

That said, if government (state or federal) wants to impair the life, liberty, or property of any person, then, per the Fifth Amendment, it must follow due process. Although the federal government has since granted itself powers beyond those delegated to it by the plain meaning of the Constitution, the courts have still recognized constitutional safeguards to protect natural rights.

Thus, if extant state or federal government want to confine individuals against their will to protect public health, they need to comply with the constitutional requirement of both substantive and procedural due process.

A government-ordered quarantine of people in a geographic area would be an egregious violation of both substantive and procedural due process. Substantively, no government in American has the lawful power to curtail natural rights by decree.

Procedurally, the states and feds can only quarantine those who are actively contagious and will infect others imminently. Government must present evidence of both in court--at separate trials for each person that it wishes to quarantine. The evidence must be compelling, as the government bears the burden of proof in those trials.

A legal argument sometimes submitted to justify mass quarantines by edict is that the situation is similar to one where an attack seems eminent and offensive force is necessary to quell the threat. But the standard necessary to justify preemption is high--as it should be. If you see someone who you believe dislikes you walking toward you on the street, and you think he might be carrying a concealed weapon, then do you have the right to attack him in the name of self-defense? Not hardly.

Infringing upon a person's freedom--even the freedom of a madman or of a contagious person--is always constitutionally guarded. That means a trial before every quarantine, no matter the public danger. The trial must be fair--not one animated by mass hysteria or government-inspired fear.

The longer government-mandated lockdowns persist, the more likely legal challenges grounded in constitutional arguments will arise.