Pacific Legal Writes to Gov. Newsom

I was happy to learn yesterday that the Pacific Legal Foundation has written a letter to California Governor Gavin Newsom and other officials on behalf of art gallery owners Quent and Linda Cordair, who have defied a statewide lockdown by reopening their doors.

The letter is just over six pages long, but I highly recommend reading it for the many very good philosophical, legal, and historical issues it raises in regard to the irrational policies so many officials have pursued since the epidemic gained steam.

Too many have, like Newsom, continued these policies well past the point that a reasonable person could see them as wrong, but at least motivated by panic or genuine concern.

Here is just one passage:

Image by Tingey Injury Law Firm, via Unsplash, license.

The State must act in accordance with due process

While the government may adopt laws to protect public health, its power is not unlimited. Even during a pandemic, the State and County must abide by constitutional limits. As one federal court has ruled, the government may legislate to prevent the spread of infectious diseases, but "it does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state." And the United States Supreme Court has held that a community's power to "protect itself against an epidemic" might be exercised "in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons."

Together, principles of due process and equal protection ensure that laws are a rational means for achieving legitimate ends rather than arbitrary restrictions on personal liberties. Due process requires laws to have a means-ends fit, while equal protection ensures that similarly situated people are not treated differently without a legitimate reason. In the context of public health, these principles "guard against the risk that governmental action may be grounded in popular myths, irrational fears, or noxious fallacies rather than well-founded science." In other words, due process and equal protection ensure that the government's actions are designed to protect people and not merely to control them. [notes omitted, bold after subtitle added]

Knowing that good people at the Pacific Legal Foundation are on the case is cause for relief and optimism, and not just on behalf of the Cordairs. State and local governments almost everywhere have displayed a disgraceful and disconcerting appetite for improper and intrusive power over the last few months.

We are all Cordairs, now.

-- CAV