What “Compelling” State or Government Interest Justifies This?

Both the U.S. and NJ State Constitutions recognize the “unalienable” rights of each citizen to work and enjoy his or her life.  Courts have ruled that fundamental, constitutional rights can only be abridged if there is a “compelling state or governmental interest” to protect lives or property.  Coronavirus rarely threatens the lives of people who are young and healthy.  What is the Governor’s “compelling” interest in ordering this arrest inside a Bellmawr, NJ gym on May 19?  Photo by Associated Press via GuardianUK.

According to Abraham Lincoln, our nation was created on July 4, 1776, when Americans held these truths to be “self-evident” in our Declaration of Independence:

“We are all created equal and endowed by our Creator with certain unalienable rights. That among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted exercising their just powers from the consent of the governed”.

The basic idea is that every American is free to make the most important choices in his or her own life, and long as this is not done by denying others the equal right to do the same.  That basic idea was written into both our national and New Jersey State constitutions.

Article I, Section 1 of New Jersey’s State Constitution states:

“All persons are by nature free and independent and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness”.

Eleven years later, Americans formed a new national government with a new federal Constitution in addition their state governments with state constitutions.

Our Constitution of 1787 was drafted by the most respected men in America.  And yet Americans refused to approve that Constitution until Ten Amendments, known as the Bill of Rights, were added.  These Ten Amendments specifically recognize and protect certain fundamental rights of each American.  The first eight amendments identify and protect certain specific rights.  They include freedom of religion, free speech, freedom to assemble, right to bear arms, freedom from unreasonable government searches, etc. Americans wanted their new national government to recognize and protect the “unalienable  Some Amendment identified specific rights. The Ninth and Tenth Amendments recognized that we enjoy other “unalienable rights” that are not specifically identified.

U.S. Constitution Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”.

The rights of every citizen in New Jersey to work and enjoy his or her own life should clearly be recognized and protected by Article I, Section 1 of New Jersey’s state Constitution, and the Ninth Amendment of our National Constitution.

For more than a hundred years both federal and New Jersey courts recognized that fundamental Constitutional rights cannot be infringed, except in certain rare situations to protect lives and property.

When law, rule, or other government action infringes on a fundamental Constitutional right, the state or government official has the burden of showing a “compelling state or government interest to do so”.   In those cases, courts apply “strict scrutiny” to the law, rule, or action. 

When “strict scrutiny” applies, the state or government officials must prove that they are using the “most narrowly tailored” or “least restrictive” means to achieve the “compelling state or government interest”. Some courts have said a law, rule, or action must be “necessary” or “crucial” to survive a “strict scrutiny” test. When that standard is applied, government officials are usually unable to meet that burden, and the law, rule, or regulation is set aside.

Under that test, it is not enough for Governor Murphy to close a gym because he wants to “slow the spread” of coronavirus.

We now know that the corona virus is rarely dangerous or deadly to healthy people who are 50 years old or younger. We know that people who are vulnerable to the disease can protect themselves by handwashing, using masks, and keeping social distance.

Therefore, there is no “compelling state or government interest” to stop young, healthy people from working, exercising, playing, or enjoying their lives.  Moreover, it appears that both the owner and patrons of this particular gym took great care to wear masks, clean surfaces, and social distance.  Those who are sick or elderly can protect themselves through handwashing, masks, social distance, and avoiding gyms like this that would make them uncomfortable.

Under that standard, any criminal charges against any young person who owned or worked out in that gym in Bellmawr, New Jersey should be immediately dismissed.

Every law enforcement officer must immediately recognize this. So must every state attorney general, prosecutor, and judge.

If you have received a summons for violating Governor Murphy’s order, I must admit that I have not done constitutional or criminal defense cases in years.  Please to not rely on this post as specific legal advice for your case.  Please consult with an attorney familiar with these matters.

Also, don’t count on the American Civil Liberty Union (ACLU) to rush to your defense.  They certainly didn’t rush to my defense when I was arrested for holding a sign and handing out literature on a public sidewalk outside a Town Hall Meeting when Democratic Governor Jon Corzine had a plan to “monetize” New Jersey’s toll roads.  It seems that the ACLU only wants to defend the rights of those who want to use their civil liberties to destroy America, not defend it.

I must also admit that both state and federal courts have so far been reluctant to recognize Article I Section 1 of our State Constitution or the 9th Amendment of our U.S. Constitution to protect citizen rights. However, I recommend that you or your lawyer put those defenses on the record in addition to your other defenses anyway.

Use these defenses like Hydroxycholoquine. They won’t do you any harm, and they just might do some good.

That is because the outrageous conduct of Governor Murphy during the past ten weeks may have raised awareness of the need to recognize and protect these rights. Also, if a Republican President and Senate majority are elected in November, we may have new federal judges willing to protect them.

Seth Grossman, Executive Director


453 Shore Road

Somers Point, NJ 08244


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