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After reading a few reactions to my thoughts this week on the Raleigh Police Department ordering protesters outside North Carolina’s Legislative Building to disperse under threat of arrest earlier this week, and subsequently arresting someone, and on the religious-liberty implications of COVID-19-related “safer at home” orders, and reading some of my students’ hypothetical questions involving the coronavirus pandemic, some additional constitutional law discussion is in order.

Before getting to that issue however, a quick point of information on the situation in Raleigh:  the Raleigh Police Department now claims on Twitter that they did not effect the arrest, but that it was the state capitol police.

Raleigh Police on Twitter: “The arrest was made by the State Capitol Police. / Twitter”

The arrest was made by the State Capitol Police.

Despite this, I wouldn’t change a single letter of my constitutional analysis.  Who did the arresting just shifts likely liability for an unconstitutional, retaliatory arrest from a municipal police department to a state police agency (N.B., however, that Nieves v. Bartlett, 587 U.S. __ (2019), a recent case decided by the Supreme Court of the United States, stands for the proposition that, in some cases, a plaintiff cannot prevail on a retaliatory-arrest claim where there was probable cause to arrest; this brings a whole new can of worms to the discussion, i.e. whether criminal enforcement is the appropriate legal mechanism for remediating alleged violations of a COVID-19 order; I candidly do not know North Carolina’s criminal laws well enough to know the answer to that question with certainty).  The Raleigh Police Department could also still be held liable under the First Amendment for threatening to arrest people for protesting, and thus chilling protected speech, even if the state capitol police was the agency that actually took someone into custody.  Again, you can watch the video for yourself right on the Raleigh Police Department’s Facebook page.  You can hear the officer say, “If you want to leave, no harm, no foul,” right before the video cuts off.  It is reasonable to assume, of course, that the subtext to his comment is “If you don’t disperse, the full force of the executive power of the city of Raleigh will come crashing down on you.”  I.e., keep it up, lots of harm, lots of fouls.

As for the substance, the Raleigh Police Department has also now retreated to that favorite posture of every authoritarian caught with its hand in the cookie jar:  “We were just doing our jobs, nothing to see here, please move along.  Also, please stop calling us and kindly direct your questions to the DA, who is in charge of deciding whether and how to arrest someone, and the state capitol police, who actually put that one person in handcuffs and took them into custody.”

https://twitter.com/raleighpolice/status/1250211595663421443

It’s enough to make a free-speech advocate’s head explode, as if there weren’t also many other galling examples of people with badges and guns trying to silence people–even teenagers–during the pandemic.

As for the main topic of this post, some question has arisen pertaining to the vertical distribution of power between the federal government and the states for which the structure of the United States Constitution provides, and whether that would have any bearing on states’ legal liability for violating people’s constitutional rights during the COVID-19 pandemic.

The Tenth Amendment to the United States Constitution says simply that “The powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  My former Cato Institute boss Ed Crane once quipped to me that “The Tenth Amendment is like the ‘Constitution for Dummies.'”  All it says is that the United States federal government is one of limited and enumerated powers, and all other governing powers remain with the states.

The founders were very suspicious of highly concentrated, far-reaching power, an attitude that was born of living under a despotic Crown.  America’s original written constitution, the Articles of Confederation, was an attempt to make a collegial nation out of 13 states that were created from the 13 original colonies.  But so many problems arose under the Articles of Confederation that the founders were forced to consider a national government with enough centralized power to solve the collective action problems of the day, like raising sufficient tax revenues to pay for certain things that were in the national interest, i.e. fighting a war against, at the time, the world’s arguably greatest and most accomplished imperial army.  Thus began the effort to draft a new written constitution, and Alexander Hamilton, John Jay, and James Madison published a series of love letters to what would eventually become the United States Constitution.

But how to thread the needle?  James Madison in particular wrestled with how to give a national government enough power to solve certain problems under the Articles of Confederation without giving it so much power that it would crush the states:

But what is government itself, but the greatest of all reflections on human nature?  If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.  In framing a government which is to be administered by men over men, the great difficulty lies in this:  you must first enable the government to control the governed; and in the next place oblige it to control itself.  A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Setting down a list of very specific, limited powers in the Constitution was a good starting point.  But it wasn’t enough to assuage some people’s fears, which they espoused at ratification debates across the country.  The persistence of these fears was what prompted the drafting of the Bill of Rights immediately after the Constitution was ratified.  The Bill of Rights was the kind of auxiliary precaution that Madison had in mind.  Among the amendments that made it through the processes of adoption and ratification was what is, today, the Tenth Amendment.  It reaffirms, in express terms, that the national government has only the powers that are enumerated in the original Constitution, and the states retain all the powers they had traditionally held.  These state powers are called “police powers.”  States had, and still have to this day, plenary authority to regulate the health, safety, welfare, and morals of their citizens.

But here’s why the express reservation of police powers to the states won’t shield state entities from liability for constitutional violations during the COVID-19 pandemic.  First, the Supremacy Clause of Article VI of the Constitution provides that the Constitution is the supreme law of the land.  In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall applied the Supremacy Clause to the tension between (a) the original subject matter jurisdiction that Article III of the Constitution vests in the Supreme Court of the United States and (b) the subject matter jurisdiction to issue a writ of mandamus that the Judiciary Act of 1789, a federal statute enacted by the first Congress, purported to confer on the Supreme Court.  Because Article III did not confer authority to grant a writ of mandamus on the Supreme Court, and the Constitution is the supreme law of the land, the Marshall Court ruled that this particular portion of the Judiciary Act was unconstitutional and invalidated it.  Ever since, when a statute comes into conflict with a constitutional legal principle, the statute must give way to the Constitution.

Second, after the Civil War, Congress adopted, and the states ratified, the Fourteenth Amendment to the Constitution.  That is, the Constitution was amended again after the Tenth Amendment was ratified.  The Due Process Clause of the Fourteenth Amendment provides that no state shall deprive any person of life, liberty, or property without due process of law.  When we think about the word “process,” certain procedures come to mind.  Indeed, the traditional hallmarks of due process are sufficient notice of a deprivation and a hearing in which someone has the opportunity to state their case for why the deprivation should not occur.  However, the Supreme Court of the United States has also interpreted the Due Process Clause as having a substantive character.  In other words, there are some areas of life in which a law or governmental action is so fundamentally unfair that it does not matter what procedures a state affords to someone; the result is not justified under any conceivable scenario.

Think, for example, of a hypothetical statute that imposes life imprisonment or the death penalty for the crime of jaywalking.  You could provide someone who was prosecuted under the statute all the criminal trial procedures in the world to aid them in their defense, but a finding of guilt would result in a sentence that is so disproportionate to the act complained of that it would always be fundamentally unfair whenever it was imposed.

So, yes, the Tenth Amendment makes clear that states retained their plenary police powers under the federal structure of the Constitution.  But subsequent amendment provided controlling contours to states’ uses of those powers.  In the Raleigh situation, the liberty interest at stake is the freedom of speech, or, more specifically, the freedom to protest government action.  The Supreme Court of the United States has interpreted the word “liberty” in the Due Process Clause of the Fourteenth Amendment as incorporating most of the civil liberties explicitly provided for in the Bill of Rights, including the right to speak enshrined in the First Amendment’s Free Speech Clause.  And because of the Supremacy Clause, any state use of police powers that violates the right to speak must give way to the Constitution.

One precedent that demonstrates how these principles work is Gitlow v. New York, 268 U.S. 652 (1925).  Defendant-Appellant Benjamin Gitlow, who was a member of the Socialist Party, was arrest, tried, and convicted of criminal anarchy under New York law for writing and publishing papers that advocated the violent overthrow of government.  Following his trial, the intermediate appellate court and state supreme court affirmed his conviction.  On appeal to the Supreme Court of the United States, Gitlow argued that his conviction could not withstand scrutiny under the Due Process Clause of the Fourteenth Amendment.  The Court agreed with Gitlow that the freedom of speech is included in the word “liberty” as used in the Due Process Clause, but it affirmed Gitlow’s conviction because his papers incited violent, unlawful rebellion.  As I mentioned the other day, there are some categories of speech–“incitement,” which is a term of art with a definite legal meaning, being one of them–that the First Amendment does not protect.  But in affirming Gitlow’s conviction, the Court also implicitly recognized that states may not encroach on protected speech without running afoul of the Free Speech Clause.  Furthermore, our constitutional law on the freedom of speech has matured substantially in the last century.  There are even more protections against state encroachments on free speech today than there were then.

And that brings us full circle to the question, “Does the Tenth Amendment and reservation of police powers to the states under the Constitution create any special hurdle to liability for quashing protests?”  The answer to that question is a resounding “no.”