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States Cannot Constitutionally Flag Down Out-of-State Drivers

Thursday, April 16, 2020 @ 11:59 AM States Cannot Constitutionally Flag Down Out-of-State Drivers ATTENTION: Major social media outlets are finding ways to block the conservative/evangelical viewpoint. Click here for daily electronic delivery of The Stand's Daily Digest - the day's top blogs from AFA.

Bryan Fischer Former Staff MORE

Florida and Texas state troopers are flagging down out-of-state motorists and requiring them to sign a form pledging to incarcerate in place for 14 days. Florida and Texas, along with Rhode Island, also require travelers give them the address where they are going to self-quarantine and to be prepared for a follow-up visit from someone in authority. 

These restrictions are flatly unconstitutional, along with most of the other coronavirus-inspired restrictions panic-driven governors are imposing on freedom of religion, freedom of movement, and freedom of assembly. It often seems as though the most disposable commodity in a crisis is the Constitution, especially when its clearly enunciated list of God-given rights interferes with the agenda of bureaucrats. 

The Declaration of Independence identifies “liberty” as one of our “unalienable” rights, unalienable because it is a gift from our Creator God and not from government. At a minimum this liberty must mean liberty of movement, the freedom to come and go and travel as we please. But these incarceration-in-place restrictions have blown that right to smithereens. 

Michigan’s governor Gretchen Whitmer has so restricted freedom of movement in her state that she is not permitting residents even to drive to their own weekend homes or visit members of their own families. Michiganders showed her what they think of her lockdown edicts by surrounding the state capitol this week in Lansing with their cars in full honking mode. 

In Delaware, state police are running checkpoints to Rehoboth and Bethany Beach, under orders from the governor to stop any vehicle with an out-of-state tag. They’ve been flagging down Pennsylvanians who have crossed state lines to buy booze, since liquor stores have been closed in the Keystone State. 

The Florida Keys have virtually been turned into a gated community by state troopers who have turned more than 4000 cars around since the end of March, blocking the only two routes into the Keys. 

Crossing a border from one jurisdiction into another is the very definition of immigration. Prior to 1808, states, as the sovereign and independent states they were since the Declaration of Independence was issued, controlled migration across their own state lines. States were in charge of who crossed their borders, including foreigners and slave traders. 

But in 1808, controlling immigration became exclusively the province of the federal government. This was due to a huge anti-slavery provision worked into the Constitution itself in Article I, Section 9. It reads (emphasis mine), “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight...”  

So states initially were in control of immigration. But after 1808, Congress was allowed to prohibit any kind of immigration it deemed contrary to America’s best interests, and assumed plenary control over immigration, both foreign and domestic.  

The slave trade was immediately abolished. This, of course, was the beginning of the end of slavery in America, for if there is something wrong with the slave trade there must be something wrong with slavery itself. 

But “We the People” granted an additional power to Congress, in Article I, Section 8 - the power to “regulate commerce with foreign nations and among the several states.” The meaning of “commerce” at the time of the Founding was quite simple: it referred only to the power to set tariffs. The Constitution grants exclusive power to the federal government to set tariffs not only over imported goods, but goods that cross state lines. This was an issue because would-be exporters in one state, for example, might have to transport their goods across a neighboring state to get to a port. In order to avoid quite predictable trade wars which would threaten the unity of the Republic, the people awarded sole power over the setting of tariffs in interstate commerce to the central government. 

What all this means is that Congress has sole power over the “migration” of people from one state to another. Since Congress quite explicitly has sole power over this subject, that, of course, means states do not. States have no constitutional authority to mess with the free travel of Americans across state lines. 

Bottom line: while their concerns are understandable, Florida, Texas, Rhode Island, and Delaware are operating in plain violation of the Constitution. But then so is Congress with its unending string of bailout bills, and so are governors with their hideous and draconian quarantines. Quarantines, if you have them, should just be for people who are actually sick, not for everybody in America. 

Locking people up who aren’t sick is like reducing the crime rate by throwing everybody in jail because they’re potential criminals. Yeah, it’d flatten your crime curve, but then what kind of a country would you have? It seems like everyone caught up in this coronavirus hysteria is flying by the seat of their pants with no regard for the Constitution. 

The governor of New Jersey, Phil Murphy, baldly admitted as much this week on national television. He appeared as a guest on Tucker Carlson’s Fox News program, and Carlson asked him a perfectly necessary question concerning his banning of religious services.  

“Now, the Bill of Rights, as you well know, protects Americans’ rights, enshrines their right to practice their religion as they see fit and to congregate together, to assemble peacefully. By what authority did you nullify the Bill of Rights in issuing this order? How do you have the power to do that?” 

“That’s above my pay grade, Tucker. I wasn’t thinking of the Bill of Rights when we did this. 

Re-read that last phrase and ponder the enormity of it. If familiarity with the plain language of the Bill of Rights is above this guy’s pay grade, he’s in the wrong line of work. He’s not qualified to run a sanitation department let alone one of America’s most important states. 

If we want to reopen America, all we need to do is reopen the Constitution and do what it says. Starting today. 

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