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Coronavirus quarantine fights not a first for U.S.

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historically speaking

Theodore Roosevelt’s 1904 presidential address to Congress is famous for bringing us the Roosevelt Corollary, which warned European nations from involving themselves in the affairs of Latin America. What is not as well-known is a small paragraph sandwiched between two other issues. In the address Roosevelt said: “It is desirable to enact a proper national quarantine law. It is most undesirable that a state should, on its own initiative, enforce quarantine regulations which are in effect a restriction upon interstate and international commerce. The question should properly be assumed by the government alone. The Surgeon-General of the National Public Health and Marine-Hospital Service has repeatedly and convincingly set forth the need for such legislation.” As early as 1905, years before the now famous Spanish Flu, and over a century before our current crisis, the government and the states already were arguing over jurisdiction and legality for public health.

Before the Spanish Flu or COVID-19, southern Americans feared Yellow Fever epidemics that sprung up every couple of years. States like Louisiana suffered many of the same calamities we have today as people became so sick that businesses began to fail and their lives were turned upside down. It was estimated that the Louisiana economy suffered the loss of hundreds of thousands of dollars in those years.

Believing the fever was spread by germs, the state and towns’ boards of health did all they could to prevent the spread by ordering quarantines of towns and homes where the disease was, making it difficult to conduct business in such towns. As the numbers of dead reached into the thousands, contagious cities could not even hold funerals as the dead were rushed away too quickly for burial before the contagion could spread. Another way to stop the spread was to order every ship entering the state to be checked and cleared by medical personal. Ships suspected of fever were quarantined for 10 days before they could continue up river.

During this time, the federal government, under the Marine Hospital Service instituted in the John Adams’ administration, tried to coordinate with the Louisiana state health boards. The problem was the national health boards were being blocked by similar state health boards. Not far removed from the Civil War, the gulf coast states did all they could to boost their own quarantine laws so as to reject national help and push out any federal oversight.

The year 1897 was a particularly bad year for Yellow Fever and New Orleans solution was basically a shelter in place order and quarantine for anyone suspected of infection. They even put guards at homes containing Yellow Fever. The city split in two over the decision. Some, including prominent doctors, argued that keeping people in their homes surmounted to imprisonment without trial. They wanted quarantines limited to those who showed symptoms only. The state board disagreed. The board argued Yellow Fever was simply too dangerous to allow people to congregate. The board recognized the injury to workers and business, but insisted credit was made available to assist them.

In 1898, just a year after the deadly epidemic, a French ship, the SS Britannia, carrying mainly Italian passengers arrived in Louisiana. That arrival led to an important legal precedent for quarantines. All 408 passengers cleared the state-run quarantine center and made their way up river. However, when they reached New Orleans they were informed of a new decree meant to stop the spread of Yellow Fever. The decree forbade the passengers entry into the city or any other city in the quarantine area. The ship’s owners tried to get a judge to block the decree, but were denied. The ship ended up taking their passengers to Florida. The ship’s owners, trying to sue for redress, took their case to the Supreme Court in what became known as the 1902 Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health Case. The high court sided in favor of the Louisiana Board of Health and ruled quarantines fell under the authority of state’s police power to protect their state. The judges used as part of their argument the 1824 Gibbons v. Ogden Supreme Court case. That case not only helped define quarantine laws in Louisiana, but effects the federal government today when dealing with COVID-19.

This was a commerce case dealing with interstate shipping. Chief Justice John Marshal said that the Commerce Clause in the Constitution gave the federal government power over shipping on rivers that were interstate. However, he also said the 10th Amendment to the U.S. Constitution limited police powers to the states, including quarantine powers. If Congress or the Trump administration attempts a national quarantine, they would run into issues with the courts because of Gibbons v. Ogden. However, the Gibbons ruling, combined with the Louisiana Board of Health decision, gives the states’ power to do so.

What we saw in the beginning of this article was, however, a push for a national quarantine law in 1905. The idea for federal quarantines started becoming popular in the 1880s with the progressive movement and a large influx of immigrants. Knowing the government could not replace state quarantine laws, they focused on quarantine of immigrants. Laws passed in 1891 and several later years even put a 40-day quarantine of ships knowing the price it would cost the shipping companies. Most states supported this decision; one that did not was Louisiana. The Federal government by 1906, using the Commerce Clause, had established a federal quarantine for international and interstate travel. Yet, the role of local quarantines still resided with the states, and the laws differed state by state.

This was the situation in 1918 when the devastating Spanish Flu ravaged the world. The federal government could control entrance into the U.S., but it was up to the states to contain the virus within their borders. The Spanish Flu took the lives of around 675,000 Americans and created a situation not unlike ours today. It was during this time towns and states took unprecedented steps to stop the spread of the flu. To try to curb the spread, or as we say today flatten the curve, they not only issued quarantine orders, but mandated stay at home orders. In my own state of Oklahoma, local principalities like Sapulpa, OK began to mandate stay at home orders. However, like today, eventually the State got involved with its own orders, to the ire of Sapulpa. On October 18, 1918 Dr. John M. Duke, the state health officer, ordered all schools, theaters, and other places of gathering closed. He went on to say, “All gatherings of more than 12 persons must be avoided. People do not seem to realize that the influenza is extremely infectious and is an extremely dangerous disease.”

“This is a great mistake and has done much harm to speak of this disease as the “Spanish Flu” because it is not a disease to be taken lightly. The present epidemic is the worst that has been known for a century, with the possible exception of the epidemic of 1889-90, and it must be remembered that the present epidemic is still at its height.”

“It must be borne in mind that in a considerable portion of cases the influenza tends to turn into pneumonia. When pneumonia developed form influenza the death rate is about 45 percent. By comparison with almost any other disease, this death rate is extremely heavy.” A similar statement was reported in another paper. This time Duke said, “Had not the statewide quarantine been imposed, the epidemic would have been deadlier. This is not theory, but amply proven by comparing the experiences of localities which were quarantined and those which were not”

The Sapulpa Herald called the state action drastic. The town had planned to reopen schools and churches the next day believing the spread of the disease had been curbed. They did not like the fact that the state government overstepped their bounds.

They did not have to wait long for redress. About three weeks after the state quarantine was issued it was retracted on November 9. The Norman Transcript newspaper in Norman, OK opened their story with one that would probably sound familiar today: “Much to the displeasure of the school children, possibly, but to the extreme satisfaction of almost everyone else in the state, the influenza quarantine order…will be lifted…There has been a great deal of inconvenience caused by this quarantine, at least until we became accustomed to it. We have now been quarantined longer than three weeks, I wonder if any of us feel accustomed yet?” Now, it’s 2020. Just like in Roosevelt’s day, there are those calling for national quarantine laws to fix our current situation.

I am far from a constitutional lawyer, but from what I can tell any federal national quarantine effort will never get past the courts. There is too much precedent leaving that remedy to state policing power. The federal government can make laws such as they did when banning Chinese travel to the US, which by the way the U.S. has done plenty in past epidemics.

A real question for today, however, is can state governments shut down healthy businesses during a pandemic? Clearly, they can quarantine those sick or suspected of being sick. The Supreme Court has ruled in favor of that.

What is not clear is can they stop all businesses and churches from functioning and force social distancing? It is alluded to in Louisiana and was clearly done for about three weeks in 1918, but there is no evidence of the rule ever being challenged. There is a case in California where the First Church of Christ Scientists sued for the right to practice. Four members of the church board were arrested with hopes of getting a court decision in their favor. It is difficult to find more information on the case, but from newspaper accounts the charges were dropped on the groups because closing their church was unconstitutional. Yet the order to close churches continued to be enforced.

I am not saying there were not more challenges; I just found no evidence of it. There are possible issues with the First Amendment rights of religion and assembling. So, historically speaking, this controversy is, once again, really nothing that we have not seen before. The biggest difference may end up being in scope and, if this goes on much longer, there could possibly be legal challenges to the states’ authority to keep everyone in their homes.


Dr. James Finck is an Associate Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. Follow Historically Speaking at www.Historicallyspeaking.blog or Facebook at @jamesWfinck.

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Religion In Government

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I am inspired this week by an assignment my wife is doing for a Law in Education class. Her assignment was to write about religion in school and particularly release time for religious classes. It is an interesting assignment for her because, unlike most of her class, she grew up in a state that actually does have release time in the high school. Religion, in general, is an interesting subject and historically speaking I have found most people are confused about what the Constitution says.

When I teach classes on the Constitution, after I cover the checks and balances and go over how the Constitution protects the people from the government and the government from the people, I then like to throw out some interesting questions to my students. First, I ask what the Constitution says about political parties, hint it says nothing. Then I like to ask, which article covers the separation between church and state. This is a trick question because even though the vast majority of Americans believe this line is in our founding document it is not. In actuality, the original Constitution said nothing at all about religion or God. You cannot argue for or against religion using the original document, there is simply nothing there to support your claims. Now after the Constitution was ratified, the first Congress amended the Constitution with the First Amendment which contains the Establishment Clause that states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” You can interpret that for yourself if that clause restricts religious influence on government or just whether government cannot interfere with the practicing of religion. If you are wonder where the wall between church and state comes from, it was in a letter Thomas Jefferson sent to the Danbury Baptist Association.

If you are so inclined to see the Constitution as a Christian document, there are two good arguments. First, all the framers of the document were Christians, not all active church goers, but all would profess a belief in Christianity. Secondly, the Supreme court will not take up a case about religion until 1878. So, for eighty-nine years the courts, nor the government had any problem with some blending between church and state. The state simply could not interfere with how people practiced their own faith. That is until the government decided to crack down on polygamy in Utah in 1878. The courts really did not start taking up religious cases until the 1940s. If you are inclined to believe there should be a wall between the two, the best historical ground is simply if the Founders wanted to protect Christianity, they could have done so. Almost every state Constitution in 1789 had religious protections. The Founders did not just forget to add it.

However, while not everyone reads the Establishment Clause the same way, what is important is how the courts have interpreted it and the Supreme Court today has seen it as a wall. Today, whenever the courts have to decide a religious issue they apply what is known as the Lemon Test. In 1971, the Supreme Court struck down a practice in Pennsylvania where the schools were helping to pay for teacher’s salaries and books at religious schools. Alton Lemon led the charge against Pennsylvania for violating the Establishment Clause. Acknowledging the First Amendment’s language is vague, the Court determined a simple three question test to determine if any government is running afoul of the Constitution. The Lemon Test asks, 1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state.

For my wife’s assignment, the Lemon Law had not come into effect when the Supreme Court originally denied an Illinois school board the ability to allow release time in 1948. The case, McCollum V. Board of Education said that since the school was allowing religious education on school grounds that it was unconstitutional. However, four years later the Court saw things differently in the case of Zorach V. Clauson in 1953. In this case, New York was allowing students release time for religious instruction off campus. They saw the difference in schools supporting religion as opposed to just accommodating it. Though it was not a unanimous decision Justice William Douglas wrote in favor of release time, “The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise, the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly.” In other words, Douglas was arguing that the government does not need to be hostile to religion to be separate.

Though release time from schools is still allowed by law, the Lemon Test since 1971, though controversial, has moved government more towards a wall of separation. The controversial part of the test is “excessive entanglement” and what that means.  The test was supposed to clarify the Establishment Clause and yet in some ways has only made it more confusing. With conservatives now the majority on the bench the question is will the Lemon Test continue to apply or might the Court swing the other direction and protect religious rights as we have seen with Hobby Lobby in Burwell v. Hobby Lobby.


Dr. James Finck is a Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. To receive daily historical posts, follow Historically Speaking at Historicallyspeaking.blog or on Facebook.

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Parents/Guardians of High School age students (Public, Private and Homeschool)

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If you are interested in a wonderful opportunity for your High School student to learn about community service, engage with other local students, and learn more about leadership, please reach out to me at mdub0308@gmail.com

There is a wonderful program through Rotary International called Interact and RYLA (Rotary Youth Leadership). You can learn for yourself by going to www.rotary.org or watching this video.

 

Specifically, and locally, there is a “free” full-day event at the Northern Virginia 4-H Educational Center on Saturday, December 4, with guest speakers, free lunch, snacks, and a Rise Against Hunger Service project, where we will package 10,000 meals in two hours, in order to help fight global poverty.

Students will network with other students (from their school and others) to learn how to become true humanitarians, positive citizens, and be good stewards of their community and World.

Michael S. Williams
Vice President, Rotary Club of Warren County, VA
Lifelong Youth Advocate

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Governor Northam and Transitions

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The morning after the election, I drove into town and a man (not a gentleman) in an SUV began tailgating me. As I sat at the light at Rt. 55 and Commerce Ave., I saw that he was just inches from my bumper. He had his hand on the top of his steering wheel and he gave me the middle finger. I then realized he didn’t like the Democratic bumper sticker that I have not yet been able to peel off my car.

I drove on after the light changed thinking that he had deliberately demonstrated what kind of person he is.

Now, we are seeing our President and Governor Northam demonstrate what kind of people they are in accepting the results of a free and fair election that didn’t go their way. And in the same issue, we see the results of more good work completed by Democrats in Congress, including Senators Warner – who led the fight for more money for rural broadband – our Senator Kaine, and now Governor Northam’s administration is delivering.

It’s not just broadband that’s being delivered. Democrats have delivered much-needed funds to our local community to spur delivery of needed improvements including expansion of sewer lines that will help us manage flooding due to extreme weather events. We have a climate crisis on our hands and work to do to deal with its consequences.

And it would seem we have had no help at all from our own Rep. Cline who continues to oppose, as recently as Nov. 5, the final passage of any legislation that delivers much-needed assistance to rural communities in the Shenandoah Valley.

Some people choose to be mean. Others are afraid of those mean-spirited people. That is not leadership. That’s caving in and stoking hateful behavior. I do recommend reading “Peril”, by Bob Costa and Robert Woodward. Hatred and the promotion of falsehoods establish the basis for extreme violence, no matter who is preaching it or finding tortured logic to condone hatred of people based on creed, country of origin, race, or sex. Hatred easily becomes violent. Our species is awfully good at killing.

As for the man who made that obscene gesture? He knows who he is and what he is. As for that bumper sticker? It’s going to require a blow dryer to melt the glue enough to peel it off.

Rea Howarth
Warren County, Virginia

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Ronald Reagan asked a very famous question “are you better now than you were 4 years ago?”

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The wisdom of our founding state and local fathers incorporated into state laws and local charters the value of having nonpartisan elections. It was their intent to elect quality candidates that would focus on local issues and not party dogma (which includes our school boards) in building the quality of life in our individual communities They felt that at this level that partisan politics would only repress the communities’ ability to make good community decisions.

With the increased activity and influence of the WCRC endorsing candidates in our nonpartisan elections, are we better now in Front Royal than we were 4 years ago? What has the town council done to improve the lives of its citizens in that time? Over the last four years the Council has:

  • Focused excess energy toward state and national concerns rather than on local town problems
  • Ignored or delayed town financial commitments, creating a hostile environment among town and county officials (failure to pay for the new police station)
  • Participated in activities that could be perceived to be conflicts of interest in their business relationships, causing a decrease in town tax revenue
  • Fostered a hostile work environment by threats of staff terminations or actual firings
  • Spent taxpayer dollars on useless lawsuits that went nowhere
  • Reduced town revenue by eliminating our own Tourism department and outsourcing to an outside firm
  • Failed to pursue a long-term solution to our water problems, stalling future growth of jobs and housing

Most of the elected Town Council were endorsed and financially supported by the WCRC. In the 2021 election cycle, this unfortunately has been extended to school board candidates as well.

Every day we become aware of more situations that confirm the influence of party politics, demonstrating the disingenuous character of the WCRC endorsed candidates past and present

It is my hope that the people in our community will choose the most qualified people running for these nonpartisan positions of which we have some great non-endorsed individuals running.

I have always been told that I am a glass-half-full guy but my expectations from our community changing are very low. Hope I am wrong.

Michael Graham
Front Royal, Virginia

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Melanie Salins will represent you well

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In response to a letter I co-authored to the Royal Examiner on October 19th, Michael Williams (in his letter-to-the-editor on October 28th) describes Angela Robinson as a “conservative candidate for the School Board.” The only true conservative in this race is Melanie Salins.

Here’s why:

Melanie is not an education insider. She will bring badly-needed fresh ideas and insights to the board. Since July, she has temporarily filled the North River seat and has been outstanding. Many say she has been the most articulate and impressive member of the board during this period. She has listened well, asked hard questions, and made extremely pertinent comments to school board discussions.

Melanie will stand up to the local teachers’ union whenever they make unreasonable demands on the school board. She says teacher’s unions in America are one of the most radical lobbying groups in our country. Melanie does not believe teacher unions should be involved in politics or curriculum development.

Melanie will stop the Marxist-based “critical race theory” (CRT) from being taught in Warren County schools. She says it badly divides our community and perpetuates racism. Is CRT being taught in local public schools? Yes, according to local teachers who have come to Melanie and said CRT is being taught under the guise of other titles — like “cultural-legal-theory,” “cultural-competency,” “culturally-responsive-teaching,” “cultural intelligence” (CQ),” and “character curriculum.” Melanie says she will stop those programs.

Melanie clearly understands why 23 percent of school-aged children in Warren County aren’t attending local public schools. She grasps very well why parents are extremely dissatisfied with a watered-down curriculum, falling academic standards, state mandates, classroom discipline problems, bullying and fights on the playground, and the poor performance of a handful of substandard teachers. Melanie says she will work hard to solve these problems. She says she will also work hard to support and retain the many good teachers in Warren County schools — more than a few of which have come to Melanie and said they resent being bullied by administrative officials regarding what they can say and do in the classroom.

Melanie believes strongly that parents are the primary educators of their children, not the state Board of Education or the teacher’s unions. Melanie believes strongly that teachers work for the parents, not the other way around. Melanie says parents should have the final say on the curriculum — not the state.

Vote for Melanie Salins on Tuesday. She is the true conservative in this race. You will not be disappointed. She will represent you well.

John Lundberg, Colonel, U.S. Army (retired)
Front Royal

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Former student supports Angela Robinson for School Board

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I first met Mrs. Robinson during my kindergarten year at Leslie Fox Keyser. Walking into the classroom for the very first time, Mrs. Robinson (who at the time was known as Mrs. Clark) was outside her classroom ready to invite us all in. The way she presented herself and cared for each and every one of her students always gave my mom peace of mind each morning when she would drop me off. I remember hearing my mom say, “Now that is a teacher who really cares. I wish every teacher was like her.” From that year on after having Mrs. Robinson, I knew I wanted to become a teacher just like her. Mrs. Robinson always knew how to make learning fun while also showing her students and their families how she really cared.

As the years went on, Mrs. Robinson always checked in on her past students to make sure they were okay. In high school, I took a course titled Teachers For Tomorrow where I would go into a classroom and get to observe a teacher. When I was first given the assignment I already had in mind who I wanted to ask. I reached out to Mrs. Robinson, who at the time taught 3rd grade at Ressie Jeffries. She took me in with open arms, ready to teach me everything she could about becoming the best teacher I could be. One of the main things she taught me was that being an educator not only meant teaching students, but she showed me the importance of getting to know the families and the backgrounds of each individual student.

Looking back on all that Mrs. Robinson has done not only for me but for others over the years, I can not think of anyone who is more deserving and equipped for being on the Warren County School Board. Mrs. Robinson has been a member of this community for years and has experience teaching at Warren County Public Schools. Based on the impact she has left on so many of her student’s lives, we definitely need Mrs. Robinson on our school board.

Ashley Murphy
Front Royal, Virginia

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