Patricia A. O'Malley
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Established 1993

Patricia A. O'Malley

Social Policy & Programs Consulting

Training and Services for agencies working toward social and economic justice

Stay-at-Home and Social Distancing Orders ARE Constitutional
Americans need to learn what our schools refuse to teach.
May 15, 2020


For the last few weeks, astro-turfed organizations have been staging rallies demanding the end of that all stay-home and social distancing orders.  The protestors are white “patriots” – with guns.  Since they’re probably not planning to shoot the virus, their real purpose is to threaten and intimidate the rest of us. 

Apparently, coronavirus is no longer a threat, because we’re bored with it.   

These folks declare that government can’t do anything unless it is specified in the Constitution.
That’s true, but none of them ever bother to READ the document that they claim to revere just eversomuch. 

You have to read all of the words.   They’re connected.

Gee.  I wonder what would happen if scores of black men showed up brandishing weapons at state capitols, town halls, and downtown streets all over America.  But I digress.

Protestors claim that state stay-home orders violate their constitutional rights. 
There are three reasons why they’re wrong. 

  1. The first amendment does include the right to peaceful assembly.  However, in 1905 the US Supreme Court ruled in Jacobson v. Massachusetts – a case about mandatory smallpox vaccination – that all rights have limits, particularly where public health is in danger.  The court held that:

    Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.

  2. The Constitution’s Article I, Section 8 gives Congress the power to ... provide for ... the general Welfare of the United States … And to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    “General Welfare” means that Congress can make any laws that are in the best interest of the United States.  And it has the power to make any laws “necessary and proper” to implement those laws.  It’s called the elastic clause because it stretches to give Congress just about any power that the Constitution does not specifically prohibit.
    Sometimes the general welfare is more important than individual freedom.

  3. The tenth amendment says:
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    So even though the Constitution doesn’t specify that states can issue stay-home and social distancing orders, the Bill of Rights says they can.  And every state legislature has enacted laws giving the governors emergency powers. 

    You can find all state constitutions at the link below.

 So “your right to swing your arm ends where my nose begins”.*

Martial law is the imposition of direct military control of

normal civil functions or suspension of civil law by a

government, especially in response to a temporary

emergency where civil forces are overwhelmed, or in an

occupied territory.  (Wikipedia)

Some protestors, and other folks, have questioned whether

we might be headed for martial law.  I doubt it. 

Congress has the power to … provide for calling forth the Militia to execute the Laws of the Union, suppress

Insurrections and repel Invasions….  (Article I.  Section 8.  Clause 15)    

So martial law can be imposed in the event of civil violence.  

Normally, the government must produce an incarcerated person to a judge and explain why s/he’s under arrest.  The court then decides whether the person is free to leave or will stand trial.  A writ of habeas corpus is a court order to “produce the body”.  During rebellions and invasions, the Constitution allows Congress to suspend the privilege of the writ of habeas corpus. (Article I.  Section 9.  Clause 2)  That means that they can arrest you and throw you in jail,  without charges, indefinitely.

This tool can come in handy under martial law.


  • The Black Plague lasted for about five years.

  • The 1918 pandemic lasted for almost two years.

  • World War II-era Japanese-American internment lasted for four years.

  • The Holocaust lasted for four years.

  • The Great Depression lasted for ten years.

  • American slavery lasted for 246 years.

  • Legal Jim Crow lasted for 99 years.

We’ve all been stuck inside for about two months.  We are not oppressed.

Last week, a woman approached me in the grocery store, whining about how hard “all this stuff” is. 
Me:   “Yes, but it could be worse.” 
Her:  “Who has it worse than me?”
Me:  “Anne Frank lived in a small attic with six other people for two years, until the Gestapo dragged her to Bergen-Belsen, where she died of typhus.  Thousands of children have been in cages in this country for more than a year.  We can't count the number of homeless people, with millions more soon to be homeless.  Plenty of people have it worse than you.” 
She walked away mumbling to herself.

I’m not happy about this stuff either.  I wish I could do other things.  We’re all stuck in boats. 

Some boats are better than others.  I’ll take mine.

Pay attention to the open-up protestors.  They’re not demanding that they be allowed to work.  They’re demanding that our lowest-paid neighbors – their restaurant servers, hair stylists, personal trainers, bartenders, and babysitters– go back to work. If the workers refuse, they'll lose their unemployment benefits.  And their children will go hungry.   The whiners demand that the servants risk their own lives, and their children’s lives, to make the whiners’ lives comfortable. 

Then they call themselves “pro-life”.

Hell hath no fury like a white person mildly inconvenienced.
Stay safe.

*  According to, this quote, in slightly different forms, has been attributed to several different people,        as long ago as 1887.  

Read the Constitution
US Supreme Court:  Jacobson v. Massachusetts
Congressional Powers and the Elastic Clause
All state constitutions
Defective Teaching Methods Produce American Political Ignorance

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