Lockdown Not in Violation of Constitutional Rights, Law Professor Says

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NOTE: This article has been updated from its original version.

A common argument against Hawai‘i’s statewide lockdown is that it’s a violation of an individual’s personal freedoms — restricting movement, erasing jobs and punishing anyone who doesn’t comply.

So do quarantines or shelter-in-place orders actually violate your Constitutional rights? The short answer, according to some interpretations, is no — because, in these areas, Americans actually have almost zero rights to speak of.

“I think this whole situation is bringing to light the fact that we have a lot of inequity in the system and maybe we don’t have as many rights as we think we do,” said Andrea Freeman, associate Professor at UH-Mānoa’s William S. Richardson School of Law.

“Whatever it is people think they’re being deprived of, they never had that right in the first place.”

Freeman’s interpretation of the law is not universally agreed upon. Several legal experts have argued individual constitutional rights have been violated by lockdowns nationwide, and court cases are moving through the legal system challenging lockdown stipulations in several states.

One thing that is not under dispute is if a person goes to court and claims something is a violation of his or her rights, that person is required to identify which rights those are.

Under the Constitution, US citizens retain no specific right to work, no right to health and no right to basic income.

There is a specific right to interstate travel, which is why the Federal Aviation Administration can’t stop people from boarding planes to Hawai‘i.

Some have argued that freedom of association and freedom of religion are hampered by the fact that it’s now illegal to congregate inside of a church, or really anywhere.

Georgetown University Law School’s Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law, told National Public Radio in a March interview that when governments start imposing lockdowns during a pandemic on people who haven’t proven to be sick, that is “getting into territory that implicates the most fundamental constitutional rights and the right to freedom of movement, the right to freedom of travel.”

“What isn’t justified necessarily is to (quarantine) en masse, to have a complete lockdown.”

Any legal action attempting to challenge the mandatory lockdown in Hawai‘i would, in all likelihood, fail, Freeman said.

“I don’t think any type of challenge would stand because we have a good reason,” she explained. “The purpose here is to save lives. Stopping people from gathering together is the only way to do that.”

Part of the reason Americans have fewer specific rights upon which to challenge lockdowns is due to the capitalist system itself, Freeman continued.

“That’s not our political framework,” she said. “It is almost a completely capitalist state. There is some assistance, but you have no constitutional right to welfare, SNAP or any other assistance. It’s at the pleasure of government to give or not to give.”

“Usually people don’t object to this system. They believe people who work hard can climb the ladder and be prosperous,” Freeman continued. “It’s under these kinds of crises that the flaws in the system come out. A lot of constitutions around the world say you have a right to food, shelter and water. Those are affirmative rights. We don’t have those.”

Constitutions in countries built on more socialist models are typically the ones that guarantee things like shelter and healthcare, as they are designed to provide more of a social safety net, Freeman added.

Federal vs. State Powers in a Lockdown

President Donald Trump said Tuesday he has “total” authority to force states to reopen their economies.

So can Washington actually force Gov. David Ige to lift mandatory lockdowns and quarantines in Hawai‘i? The answer is that it’s possible, but there’d be no way to enforce such an order without deploying military assets.

Generally, federal law supersedes state law when an issue isn’t addressed specifically in the Constitution, or is only vaguely addressed. Authors and signatories made no reference to a pandemic in the country’s founding document.

Freeman said any attempt by Trump to force Hawai‘i, or any other state, to reopen its economy would be met with a legal challenge.

States have police powers, generally meaning that the powers of health, safety and welfare fall under its domain.

A pandemic and the resulting conditions fall clearly under the category of police powers, Freeman said, which would provide strong arguments in any state’s legal case against a federally-mandated economic restart.

Similar issues include things like the legalizing of medicinal cannabis, gay marriage rights and the establishment of Sanctuary Cities, where local governments don’t work with federal agencies in attempts to locate and deport undocumented immigrants, for example.

“It would be difficult to enforce,” Freeman said of a mandatory order to reopen the state’s economy. “If the feds said, ‘Ige, you need to open up Hawai‘i,’ how are they going to make you? They won’t send troops here. It doesn’t even make sense.”

People in Hawai‘i could rebel against the state’s lockdown and quarantine orders, which went into effect in late March and currently run through at least April 30, and some have.

But Ige draws his power from the state constitution. The same document that allows the governor to declare a lockdown and enforce it also allows him to up penalties from their current maximum levels of one year in prison and a $5,000 fine.