Angry man.

Anger abounds during this pandemic, but what Constitutional rights are being threatened?

We should all commiserate with someone who owns and operates a restaurant, bar or combination of both in this year of the pandemic. It was tough enough before when many concessions had to be made to keep dining rooms open, as well as limitations on hours of bar sales and other restrictive recommendations. Many supporters of these small businesses in our communities stepped up and did what we could to keep them in business, whether it was take-out orders in the summer or taking advantage of outdoor dining when available— even if it meant sitting at a table on a sidewalk next to a fire hydrant. Most of us try to understand the logic of these restrictions and commend those establishments who have made major adjustments to comply with coronavirus advisories and edicts throughout the summer and fall.

Then came Saturday, December 12, when a state edict went into effect barring indoor dining at all retail food services, ranging from restaurants, bars and wineries to private catered events. Mary and I happened to be in New York State Friday, the day before the Pennsylvania shutdown. With the exception of New York City itself, the state still allows indoor dining, and we knew of a place along the Vestal Parkway that follows all the aforementioned mitigation rules, including throw-away menus, disinfection of tables and booths after every use and even plexiglass shields at strategic locations.

Our masked server expressed sympathy for restaurants and their employees in Pennsylvania. She told of one owner on our side of the state line who had been meticulously observant of all the virus advisories and had recently completed innovative accommodations at great expense to stay open and keep customers and employees safe and healthy over the holidays. Then, with little advance warning, came word from Harrisburg proclaiming the temporary elimination of indoor dining (until January 4).

“They were doing it the right way, and now they don’t even know if they can hold on until they can open their doors again in January,” she sadly observed. “They had planned ahead and now they are even worse off.”

I was still trying to digest the recent statewide shutdown ordered in Pennsylvania, knowing that some restaurateurs were essentially proclaiming their constitutional rights to stay open and earn a living. At about the same time last week, Bradford County District Attorney Chad Salsman announced on Facebook that “no criminal cases will be filed against businesses who choose to remain open or people who do not comply with the Governor’s mandates.”

He went on to explain that noncompliant business owners will not have committed a crime, because there is no such crime in the books. Additionally, the governor is not empowered to enact laws extraneous to the legislature and the courts.

Chad is correct, as far as I can tell, in stating that he does not have the authority to prosecute, because there is no law making such a violation a criminal offense. That means no penalty for restaurant owners who refuse to comply with the shutdown, in this instance, except from people who refuse to do business with them because of their rebellious position.

These so-called constitutional objectors may be ripe for future civil action when people start blaming the perceived spreaders of the virus on the deaths or debilitating illnesses of loved ones. We know that in this country we have freedom of ignorance, especially when we choose to sue someone for something we should have avoided doing in the first place.

Perhaps a warning at restaurants who opt to ignore indoor dining bans would legally cover their butts:

Warning! This establishment is not responsible for any negative impact on your health due to dining here. #Not My Problem

There are all kinds of perceived constitutional violations that might be challenged against state bans or advisories, including freedom of public assembly, freedom of speech and even freedom of religion under the First Amendment. Again, there is freedom of ignorance, which, in itself, is not criminal but certainly a freedom enjoyed by most of us at one time or another.

Here’s the crux of the incongruity. The struggle to keep businesses open during hard times conflicts with the probability of spreading contagious disease that is potentially lethal.

Where are the laws to protect the public health? What protections there are fall under the aegis of state governments. This explains the difference between Florida and Pennsylvania, for example. One leans toward allowing citizens to be responsible for their own actions, and the other strives to be protector of the citizenry.

Under the authority of the U.S. Constitution’s Commerce Clause, the federal government does oversee health-related responsibilities such as the inspection of meat, poultry, and other foods. Restaurants and other business can be legally closed, temporarily or indefinitely, and fined due to such violations. Technically they can be prosecuted for endangering public health, but exposing patrons to a virus isn’t covered under that.

We’ve all heard stories about the Department of Health closing down restaurants because of insects, rats, dirt, garbage and improperly stored food and chemicals in the kitchen. That’s due to an existing condition and not an implied threat.

Constitutional scholars feel that most judges, federal or state, would be unlikely to strike down measures seeking to promote public health in the midst of the pandemic. Does that mean a DA, for example, should or shouldn’t take legal action against owners of business establishments flaunting these bans? It is an issue that likely wouldn’t be settled in a high court until long after the immediacy of the pandemic.

Making Concessions to Stay in Business

One restaurant owner in Luzerne County who ignored the indoor dining ban this week said he had absorbed a big financial hit in the spring after closing down for several weeks at the height of the first wave. When he reopened, he took the mitigation seriously, rearranging tables and booths for spacing and disinfecting all surfaces after each dining party left. He considered the crowds at the Walmarts and grocery stores and said he knew, in his heart of hearts, that his customers were safer from the virus than in those establishments.

And yet he feels he was penalized for doing the right thing, thrown together with others in the business who did as little as they could get away with.

Have we learned anything from the 1918 pandemic? It seems we’re not only making the same mistakes they did then, but we gained nothing from any case law that would have helped a century later.

There is a dearth of federal case law because the U.S. government has chosen not to get involved in establishing measures for mitigating the impact of contagious diseases and other health threats. The closest to it might be national seatbelt requirements first instituted in 1968 and other vehicle safety measures to reduce highway deaths and injuries. Even smoking, a proven killer, is only subjected to warnings. Otherwise, the responsibility for protecting the public health has been incurred by state and local governments since colonial times.

Wearing or not wearing face masks or where we choose to eat our meals have little to do with Constitutional rights, and only guarantee individual freedoms if you are not treading on someone else’s domain. If a grocery store demands you wear a mask and you refuse, they have the right to order you to leave private property. If you physically resist or make a scene, you could be criminally charged. If you cough in someone’s face in protest of a mask requirement in a grocery store, does that constitute a crime like simple assault or reckless endangerment?

Ironically, perhaps the most significant Supreme Court decision on public health protection came in 1904 and had to do with a state’s right to vaccinate its citizens from smallpox— something that has been taken for granted by generations of Americans. In Jacobson v. Massachusetts the court ruled the existing state law requiring smallpox vaccination was “a legitimate exercise of the state’s police power to protect the public health and safety of its citizens.”

“The danger of smallpox to the community greatly outweighed the individual dangers that a vaccine might suffer,” reports Ed Richards of the National Constitution Center. That decision, he explained, affirms “the right of the state to endanger individuals for the benefit of society.”

The right to endanger others is not granted to any person, business or organization. It does not necessarily mean you are subject to arrest or prosecution if deemed a threat to public health.