The insightful newshound Don Surber notes in Hope for the future in this unconstitutional lockdown Readers may recall a judge threw Shelley Luther in jail for seven days because she refused to apologize for re-opening her beauty shop — Salon à la Mode in Dallas — amid this unconstitutional and ineffective lockdown.
The governor and the Texas Supreme Court sprang her from jail after two days, and Ted Cruz got a haircut. End of story, right?
But Shelley Luther is not the only star in this farce. Blacklock wrote the majority opinion. He made it so simple, even I could understand it.
He began with a quote, “The Constitution is not suspended when the government declares a state of disaster.”
Then he crisply explained it.
“All government power in this country, no matter how well-intentioned, derives only from the state and federal constitutions. Government power cannot be exercised in conflict with these constitutions, even in a pandemic.
“In the weeks since American governments began taking emergency measures in response to the corona virus, the sovereign people of this country have graciously and peacefully endured a suspension of their civil liberties without precedent in our nation’s history. In some parts of the country, churches have been closed by government decree, although Texas is a welcome exception. Nearly everywhere, the First Amendment ‘right of the people to peaceably assemble’ has been suspended altogether. In many places, people are forbidden to leave their homes without a government-approved reason.Tens of millions can no longer earn a living because the government has declared their employers or their businesses ‘non-essential.’
“Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate — both to its citizens and to the courts — that its chosen measures are absolutely necessary to combat a threat of overwhelming severity. The government should also be expected to demonstrate that less restrictive measures cannot adequately address the threat. Whether it is strict scrutiny or some other rigorous form of review, courts must identify and apply a legal standard by which to judge the constitutional validity of the government’s anti-virus actions. When the present crisis began, perhaps not enough was known about the virus to second-guess the worst-case projections motivating the lockdowns. As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny.
“Ideally, these debates would play out in the public square, not in courtrooms. No court should relish being asked to question the judgment of government officials who were elected to make difficult decisions in times such as these. However, when constitutional rights are at stake, courts cannot automatically defer to the judgments of other branches of government. When properly called upon, the judicial branch must not shrink from its duty to require the government’s anti-virus orders to comply with the Constitution and the law, no matter the circumstances.”