“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”
– Ex Parte Milligan, Supreme Court of the United States, 1866.
Last week, the media in New Jersey began to ask Gov. Phil Murphy when he would surrender his emergency powers. He claimed emergency powers in March 2020, and he also claimed that those powers are not limited by the Constitution when he said on Fox that the Bill of Rights is above his pay grade. His reply to the media inquiries was that he will surrender them when he surrenders them!
I am using the example of Murphy in order to address the concept of emergency powers, but there is no hyperbole here. Murphy quite literally issued executive orders barring folks from doing what the Constitution guarantees them the right to do, and he imposed criminal penalties for violating his orders, and he had folks who defied him arrested and prosecuted. Stated differently, he assumed the powers of the state legislature — which is to write the laws — and he violated his oath to uphold the Constitution.
He claimed that somehow he can interfere with the exercise of basic human freedoms — like going to church, going to work, shopping for food, operating a business, assembling and traveling — because he declared a state of emergency.
If the government declares an emergency, can it thereby acquire the lawful power to interfere with constitutionally guaranteed freedoms? In a word: No.
Here is the backstory.
When the states formed the federal government in 1789, they did so pursuant to the Constitution. The Constitution was written to establish and to limit the federal government. In 1791, just two years later, the Constitution was amended to add the Bill of Rights. The original understanding of the Bill of Rights was that it restrained only the federal government by articulating negative rights.
A negative right restrains the government from interfering with the exercise of a preexisting right. Thus, the First Amendment does not grant the freedom of speech — because it comes from our humanity — but it does prohibit Congress from infringing upon it. – READ MORE
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