My friend and colleague Douglas Wilson has just written yesterday on the problems with Idaho Governor Little’s Mass Isolation Order. And you really should go read that if you haven’t yet. I want to touch on some of what he’s written and then add my three cents, pushing in a few different directions.
What Little Did
First, to reiterate: what Governor Brad Little has done is illegal. His order can be found here. And there he cites the Constitution of Idaho and Sections 46-601 and 46-1008 in particular as his basis for ordering the Director of the Idaho Department of Health and Welfare to impose and enforce orders of isolation and quarantine ala Idaho Code § 56-1003(7).
Idaho statute 46-601 authorizes the governor of Idaho to declare a state of “extreme emergency” which is defined as “the duly proclaimed existence of conditions of extreme peril to the safety of persons and property within the state,” including such disasters as “fire, flood, storm, epidemic…” And statute 46-1008 grants the governor the authority to make executive orders that have the force of law in the event of “disaster emergencies.” What is the executive order that Governor Little has issued? He ordered the Director of Idaho Department of Health and Welfare to promulgate an isolation order.
However, statutes often include definitions of certain words so we know exactly what was intended by them. And as it turns out, statute 56-1001 (4), (8) most helpfully defines the meanings of “isolation” and “quarantine” as used in 56-1003(7). Title 56, Chapter 10 Department of Health and Welfare 56-1001 (4) says “isolation” means the separation of infected persons, or of persons suspected to be infected, from other persons to such places, under such conditions, and for such time as will prevent transmission of the infectious agent. Likewise, under Idaho Statute 56-1001 (8) “quarantine” is defined as the restriction placed on the entrance to and exit from the place or premises where an infectious agent or hazardous material exists.
This means that at most Governor Little could have ordered the Director of Idaho Department of Health and Welfare to require the isolation and quarantine of infected persons — those who actually test positive for COVID19 or those proven to have been in contact with infected persons, but only for a precise and limited period time. If there had been an outbreak in some place or premise, it may have been legal to quarantine those particular places, if they were proven to be infectious or hazardous. But what Governor Little did was treat the entire state of Idaho as hazardous and infectious. He quarantined the whole dang thing. And he ordered the isolation of all “non-essential” residents, thereby effectively accusing them of being infected or suspected to be infected or that their houses, businesses, and/or places of worship were infectious or hazardous.
Erring On What Side?
There are many problems with this, not least of which is the precedent this potentially sets for any number of threats. What is the threshold for declaring a state of extreme emergency or an imminent threat to the health and safety of the citizens of Idaho? Get a bunch of guys on CNN blowing into paper bags. This is clearly far outside the intended meaning of that Idaho code. Governor Brad Little is a servant of the citizens of Idaho, and he may only operate in accordance with the constitution and codes of our land. His order is unconstitutional and therefore illegal. It is not lawful. And this statement of fact in no way dishonors Governor Little, the man or his office. Rather, we render honor when we hold men to the oaths of office they have taken. I do not doubt for one minute that Brad Little has intended to do good and protect our state from the harm of coronavirus by his order. I truly believe that. But no leader’s intentions may trump their actions or the laws of the land.
But the real travesty of justice here is the fact that due process has been effectively suspended in Idaho. Everyone has been summarily tried and de facto indicted by one man’s good intentions. The First Amendment protects citizens’ rights to assemble peaceably, and that includes assembling at their places of business, worship, and recreation, freely and unhindered. The Sixth Amendment protects the right of citizens to due process. This includes the right of a trial by jury of peers, the right to face your accuser and witnesses, as well as the right to supply your own witnesses in your defense. The threshold is steep for abridging or infringing these fundamental rights. There must be a clear and present danger — we’re talking the house is on fire, there’s an active shooter across the street, there’s a bomb in the building, or in the case of epidemic and quarantine, the threat level of the data needs to be demonstrable and certain. But all we have are models and charts with numbers that keep changing, scare stories out of Italy and New York City, and empty hospitals across the nation — nothing approaching demonstrable or certain.
And this is the deal: in God’s economy and in the framework of our constitutional republic and states, we err on the side of letting criminals go if the evidence is not clear. If you do not have two or three witnesses and if you do not convince a jury to vote unanimously to convict, then the accused goes free. And sometimes that means that an accused criminal goes free. But this is because the Christian legal tradition recognizes that it is better to let some evil go unchecked and leave the rest of the populace free to do good than to overcorrect in an attempt to suppress all evil, while running roughshod over the freedoms of the innocent and law abiding.
The same threshold must be kept in place when it comes to isolation orders and quarantines and emergency declarations — even of the sort allowed by Idaho code (and Biblical law, for that matter). Charts and graphs of what might be, of what could be are not sufficient. And this means that until we have hard facts, testimony, and clear evidence, you cannot legally take away the right of US citizens to assemble to worship, to do business, or whatever else they may do peaceably. This means that the threat must be allowed to persist — even in cases when it actually is a much more dire threat than COVID19 has turned out to be — sometimes evil and risk must be allowed to persist until the facts are demonstrated, despite the potential fallout. This is the necessary cost of true justice and freedom. And freedom-loving people and all Christians should rejoice in this principle of justice.
Innocent Until Statistically Guilty?
You cannot summarily convict an entire state of being infected, suspected of being infected, and thereby dangerous to public safety and placed under house arrest on the basis of data models. This is unjust, illegal, and unconstitutional. All accused, especially when the accusation brings with it massive ramifications of loss of livelihood and reputation, are to be afforded careful due process. Instead of that careful due process, the businesses of Idaho were summarily shuttered on accusation of infection and contagion and threat of extreme peril. But how many of them were actually infected? How many of them were even within hundreds of miles of an infected person? In biblical law, the sanctions for false testimony and false accusation were severe: the penalty that would have fallen on the accused if convicted on false testimony becomes the penalty of the false witness. The stakes really are high.
It is the civil magistrate’s job to punish evil doers, which means it is not his job to run around trying to prevent every evil from being done. That is the way of the police state, where every citizen is a de facto suspect. But in Christian nations, citizens are reckoned innocent and may not be harassed or restricted by law enforcement without demonstrable cause. What if an infected person walks into a senior citizens home and the disease is spread and some die as a result? Then bring your accusation against the person in a duly established court of law. Bring your charges to a judge, summon your evidence and witnesses, and if it can be proven that the person was reckless or even committed some form of involuntary/accidental manslaughter, let him pay the consequences and let the magistrate execute justice swiftly and let the populace fear and take greater precautions. But citizens are to be reckoned judicially innocent until they have been proven guilty. You cannot convict someone on the basis of statistics, probability, odds, or fancy data graphs. It is not the case that citizens are only innocent until proven statistically guilty.
What if many people are asymptomatic carriers? As it turns out all people are asymptomatic carriers of sin — well, with varying degrees of symptoms — but everyone carries around in their heart the capacity for great evil. Anyone might snap and go on a shooting spree. Anyone might accidentally crash their car or start a fire that harms many. It could happen. In fact, it does happen. What do we do with that threat? We take reasonable precautions, and then we trust God and hope for the best, but we do not take away the freedoms of the many simply because of the risk that remains with the few. This is what due process means. If intentional or reckless or unintentional behavior can be demonstrated to have caused harm, take it to the courts and make your case. This is what it means to presume innocence until proven guilty.
But I’m not done yet.
In addition to the general, universal house arrest order of Governor Little, he has added insult to injury by making a distinction in his isolation orders between what he deems “essential” and “non-essential” work or business or activities. But there is something massively unjust in this, not to mention demeaning. The civil magistrate’s job is to administer the law. He is an executive of written law. He is not a despot, a dictator, or king. Even in the event of disaster emergencies, his task is to protect our way of life and the laws of our land. And, importantly, he is to be a blind administer of that written justice. It is illegal for him to show preference to anyone. The law must apply equally to all and therefore must be limited and constrained to accomplish that equality. If the Governor’s order had applied equally to everyone, it might have still been foolish, but at least that would have demonstrated complete earnestness. But the selectivity of the order suggests that the epidemic threat is bad, but actually, not really.
One time my uncle was playing his trombone in our living room and it was clearly making our dog skittish. My uncle capitalized on the fun and gave a long trombone bellow in the dog’s direction, and she took off like a shot towards the door. But just before leaving the house, she leaned over as she passed our garbage can and snatched the leftovers of a mostly eaten sandwich. It was an emergency, but clearly not that much of an emergency.
But as soon as you wrongly convict the entire state of infection or contagion, you have already leapt off the cliffs of capriciousness. How will you pump the brakes in midair? Governor Little’s mass isolation orders for the entire state have already been tyrannical — a one man judge and jury convicting the general populace of infection, but now, realizing that this could result in complete devastation, it becomes clear that we need food and housing and (apparently) booze. So the Governor arbitrarily made a list of all the businesses that could remain open. The law only applies to some, not to others. This is the definition of discrimination.
But by what standard are liquor stores deemed “essential” but churches are “non-essential”? By what standard may grocery stores continue operating, with social distancing protocols in place while restaurants and movie theaters may not? And now, in the Governor’s more recent adjusted order, schools are apparently free to re-open at local school board discretion, while churches are still remanded to parking lots. By what standard? The problem is that there is no standard. These people are making it up as they go along. And that really is the definition of tyranny — even if we haven’t yet descended to the most depraved caverns of that dark hole.
One last thing.
As noted above, the First Amendment gives special protections for exercise of free speech, religion, and assembly. This means that the bar is higher for the state or a city to order churches not to meet. Arguably, the right of assembly includes all activities, whether for business or recreation, but the right of religion is one of the most prized possessions of the American people. This means that the government must use extreme caution in restricting religious expression. And when it does, it must do so using the most limited means possible and they are required to prove that. The burden of proof is on the government to demonstrate that they used every possible precaution and limitation in restricting religious gatherings. In other words, if the government is to err, it is required by law to err on the side of protecting religious freedom. But what our government has done is err on the side of protecting Jack Daniels. If you can’t work or support your family, at least you can go buy a fifth of something and get good and goosed.
My point is that the First Amendment has not been upheld at all. Grocery stores and hardware stores have routinely had a hundred people in them during this lockdown, with health and hygiene protocols in place, but places of worship? We have been treated like movie theaters and sporting events. We have been relegated to entertainment and social clubs. But the First Amendment enshrined our privileged position in this land. It is the First Amendment, right there at the beginning so you won’t miss it. Quite apart from everything else noted, this is straightforward religious discrimination, not to mention a deep insult to Christian believers everywhere to be treated as less essential than liquor stores and lumber yards.
There is no explicit provision in the Bill of Rights for liquor stores. There is no transcendent right handed down from God for men to have gin and tonic after work. There is no explicit provision for movie theaters or football stadiums — though they are arguably protected in the right to peaceful assembly. But there absolutely is a reference to religion and its free exercise. Churches got a special, explicit reference because for some reason it has been the tendency of magistrates to restrict them, ignore them, or condescendingly tut-tut them like they were a 4-H club or something. But the 4-H and Elks Club didn’t make it into the Bill of Rights.