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The US Supreme Court has consistently affirmed that Americans have a right to freely travel by the common conveyances of the day, and this right cannot be restr

The US Supreme Court has consistently affirmed that Americans have a right to freely travel by the common conveyances of the day, and this right cannot be restricted without due process. The government would be required to prove that a specific person has a high probability of harming the public before it would pass judicial muster outside of very narrow contexts that won't apply to most Americans. A vague "because you might have coronavirus" has the same weight as "because you might be a terrorist". As an example, this is one of primary legal arguments for why the No Fly List is unconstitutional.

Seenso 7y ago
But there's a nuance there that I think needs clarification: is the right to not be discriminatorily singled out or a right to be provided access to infrastructure in all circumstances? I think the right has to be the former, and general, nondiscriminatory restrictions would be OK. I posted in another comment that state governments regularly shut down roads and other infrastructure due to public safety concerns. I think closing roads in a lockdown could be done under similar authority. The latter, to be provided access to infrastructure in all circumstances, is kinda nonsensical when you think about it. For instance, it would mean everyone had a constitutional right to drive through roads that have been closed for construction, which would be ridiculous.
- jandrewrogers 7y ago
  No, this is not correct. There are only allowances for non-discriminatory "reasonable restrictions" such as closing roads during unsafe road conditions. There is no general "public safety" loophole that enables the Federal government to abrogate well-established rights, there must be due process for each individual so-deprived. This is essentially settled law in the US. And for good reason: it would give the government carte blanche to abrogate any Constitutional right using a nebulous notion of public safety as a fig leaf. It is the same reason that courts have consistently rejected public safety arguments for depriving Americans of firearms without due process, as well as de facto deprivation attempts via regulatory technicalities like a million dollar tax on guns or banning ammunition.
  - Seenso 7y ago
    > No, this is not correct. There are only allowances for non-discriminatory "reasonable restrictions" such as closing roads during unsafe road conditions. There is no general "public safety" loophole that enables the Federal government to abrogate well-established rights, there must be due process for each individual so-deprived. Do you have a citation for that? If you're correct, this interpretation is to be verging on Constitution-as-a-suicide-pact territory, and the Constitution should be amended or the opinion changed to correct the flaw, and allow suspension of those rights during serious epidemics.
    - jandrewrogers 7y ago
      This argument has been applied to many rights in the Constitution, and the courts have consistently held that any right that can be cast aside just because the government asserts an "emergency", regardless of type, is effectively a right that does not exist. The job of the courts is not to minimize risk to the population but to preserve their rights, and they mostly do that. As a practical matter, this is on the right side of history. There are myriad examples of governments stripping basic rights from the population in the name of public safety or some other contrived (or real) emergency. It virtually always ends poorly for the population because governments consistently abuse this latitude when expedient for whoever is in power. Would you have the courts remove all rights from anyone the government deems a "terrorist"? Or give Trump the power to suspend elections because pandemic/reasons? It is exactly the same argument. Giving people strong rights carries risks but also powerful benefits.
      - Seenso 7y ago
        > This argument has been applied to many rights in the Constitution, and the courts have consistently held that any right that can be cast aside just because the government asserts an "emergency", regardless of type, is effectively a right that does not exist. That's not my argument, though. I'm arguing against a kind fundamentalist absolutism that doesn't even allow for narrow, reasonable, and necessary exceptions in any circumstances. Applied to the First Amendment, that logic says you should be able to yell fire in a crowded room or libel someone, yet those things are prohibited and we haven't found ourselves in a dystopia on account of that. The Constitution itself even has such exceptions written into it, and the founders recognized their necessity even when not enumerated. I get where you're coming from, but I no longer believe that kind of absolutism is a protection from tyranny. Letting an undetected Typhoid Mary freely travel the country in the most convenient ways possible isn't actually going to do anything to prevent Trump from suspending elections or declaring Joe Biden a terrorist, if he likes, it's just going get a lot of people sick.

Seenso 7y ago

But there's a nuance there that I think needs clarification: is the right to not be discriminatorily singled out or a right to be provided access to infrastructure in all circumstances? I think the right has to be the former, and general, nondiscriminatory restrictions would be OK. I posted in another comment that state governments regularly shut down roads and other infrastructure due to public safety concerns. I think closing roads in a lockdown could be done under similar authority. The latter, to be provided access to infrastructure in all circumstances, is kinda nonsensical when you think about it. For instance, it would mean everyone had a constitutional right to drive through roads that have been closed for construction, which would be ridiculous.

jandrewrogers 7y ago
No, this is not correct. There are only allowances for non-discriminatory "reasonable restrictions" such as closing roads during unsafe road conditions. There is no general "public safety" loophole that enables the Federal government to abrogate well-established rights, there must be due process for each individual so-deprived. This is essentially settled law in the US. And for good reason: it would give the government carte blanche to abrogate any Constitutional right using a nebulous notion of public safety as a fig leaf. It is the same reason that courts have consistently rejected public safety arguments for depriving Americans of firearms without due process, as well as de facto deprivation attempts via regulatory technicalities like a million dollar tax on guns or banning ammunition.
- Seenso 7y ago
  > No, this is not correct. There are only allowances for non-discriminatory "reasonable restrictions" such as closing roads during unsafe road conditions. There is no general "public safety" loophole that enables the Federal government to abrogate well-established rights, there must be due process for each individual so-deprived. Do you have a citation for that? If you're correct, this interpretation is to be verging on Constitution-as-a-suicide-pact territory, and the Constitution should be amended or the opinion changed to correct the flaw, and allow suspension of those rights during serious epidemics.
  - jandrewrogers 7y ago
    This argument has been applied to many rights in the Constitution, and the courts have consistently held that any right that can be cast aside just because the government asserts an "emergency", regardless of type, is effectively a right that does not exist. The job of the courts is not to minimize risk to the population but to preserve their rights, and they mostly do that. As a practical matter, this is on the right side of history. There are myriad examples of governments stripping basic rights from the population in the name of public safety or some other contrived (or real) emergency. It virtually always ends poorly for the population because governments consistently abuse this latitude when expedient for whoever is in power. Would you have the courts remove all rights from anyone the government deems a "terrorist"? Or give Trump the power to suspend elections because pandemic/reasons? It is exactly the same argument. Giving people strong rights carries risks but also powerful benefits.
    - Seenso 7y ago
      > This argument has been applied to many rights in the Constitution, and the courts have consistently held that any right that can be cast aside just because the government asserts an "emergency", regardless of type, is effectively a right that does not exist. That's not my argument, though. I'm arguing against a kind fundamentalist absolutism that doesn't even allow for narrow, reasonable, and necessary exceptions in any circumstances. Applied to the First Amendment, that logic says you should be able to yell fire in a crowded room or libel someone, yet those things are prohibited and we haven't found ourselves in a dystopia on account of that. The Constitution itself even has such exceptions written into it, and the founders recognized their necessity even when not enumerated. I get where you're coming from, but I no longer believe that kind of absolutism is a protection from tyranny. Letting an undetected Typhoid Mary freely travel the country in the most convenient ways possible isn't actually going to do anything to prevent Trump from suspending elections or declaring Joe Biden a terrorist, if he likes, it's just going get a lot of people sick.