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phillips, hunt & walker COVID-19 Coronavirus Pandemic Legal Advice: How the U.S. Constitution May Be Violated by Covid-19 Enforcement


COVID-19 Coronavirus Pandemic Legal Advice: How the U.S. Constitution May Be Violated by Covid-19 Enforcement

by Attorney John M. Phillips, B.C.S.

As state executives make proclamations and executive orders, we must take a moment to reflect on the United States Constitution and its Amendments. Mayors, Governors and other leaders all across the country need to read the Constitution and its Amendments before having press conferences to “order” people to stay in their homes and shutter their lives.

Certainly, we all must make sacrifices to make sure our country survives tests such as the coronavirus known as Covid-19, but we also must maintain our rights. Once they are erased by precedent, they often never come back in full.

What Does the Constitution and its Amendments Say?


“We the People of the United States, in Order to form a more perfect Union, establish justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Things to balance:

Justice is the 17th word of the Constitution. Yet, it is impossible to establish justice when courts are closed. Even if courts are simply restricted, so is justice.

The November 2, 1918, edition of the Washington Post indicates that the court went on recess on October 8, one day after both chambers of Congress closed their public galleries, and did not begin hearing argument in cases again until November 4.

Currently, the United States Supreme Court is closed to the public. Its website states, “Out of concern for the health and safety of the public and Supreme Court employees, the Supreme Court Building will be closed to the public from 4:30 p.m. on March 12, 2020, until further notice. The Building will remain open for official business.”

Similarly, state courts are in various states of disarray. Some closed, some limited. Nearly all have stopped jury trials and limited court hearings. Even Speedy Trial laws have been given exceptions. We must not let this get out of hand as the Executive Branch in states and the federal government are usurping more power daily.

Amendment I (ratified December 15, 1791)

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Things to balance:

Assembly is the only right in the First Amendment that requires more than one person to exercise. One can speak alone, but one cannot “assemble” alone. And one cannot assemble while quarantined to their homes.

Furthermore, free exercise of religion certainly cannot be necessarily mandated to the home, either.

A free press cannot be confined to their home either. They must be able to travel wherever the government governs, which becomes more difficult as government becomes less in the sunshine if we are going to let or require the work of the people to be done solely via cell phones and text messaging. It’s beyond a slippery slope.

How can one petition the government if courthouses are shuttered or limited? Or redress grievances? All of these things will have to be addressed if the executive branches of various local, state and federal governments go too far.

Amendment IV (ratified December 15, 1791)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Things to balance:

We will see how this develops, but some level of forced entry onto people’s property, search warrants and required immunizations of the healthy could certainly pose constitutional violations.

Amendment V (ratified December 15, 1791)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Things to balance:

We will see how this develops, but the deprivation of life, liberty and property without due process certainly are the chief concerns, with an ever increasingly powerful executive branch of government and a closed or limited judicial branch.

Amendment VI (ratified December 15, 1791)

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

Things to balance:

As we have said, “the right to a speedy and public trial” is being infringed right now for some inmates. The question is, how long? Further, some prosecutors are offering deals to let inmates out of jail for pleas of guilty. While favorable to the inmate to let them out of jail, it certainly seems like duress under a constitutional microscope.

Amendment VII (ratified December 15, 1791)

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Things to balance:

Jury trials have ceased. The question is for how long?

Amendment VIII (ratified December 15, 1791)

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Things to balance:

How healthy and safe are our jails? Will some inmates die from COVID-19 because of a lack of proper sanitation, health facilities and treatment? Is that cruel and unusual?

Due to the difficulty of navigating the aforementioned issues that will or may arise, combined with the ever changing rules relating the Courts, the necessity to hire expert legal counsel to navigate you through these waters and the necessity to stay calm and attempt to be as reasonable and rational as possible is important.

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