Pernicious Passphrases

     All our Gentle Readers know what a password is, right? It’s an indicator to a guard – human or otherwise – that you have permission to go where you’re headed. It protects the destination from persons unauthorized to visit. If you don’t have the proper password, the guard will refuse to admit you.

     A passphrase is the same sort of thing, a non-magical incantation that enables you to pass through a particular gate. With it, you can go where you want to go or get what you’re after. In some high-security circumstances, passphrases are embedded into challenge / response rituals that must be completed correctly.

     Passphrases have become a regular feature of our legal system. Here are a few of the most commonly used ones:

• compelling government interest
• exigent circumstances
• sovereign immunity
• public health

     Anyone who lived through the COVID-19 panic will know the power of that last one. Indeed, its full power often goes unappreciated. Most recently, it’s been used to vitiate the First and Fourth Amendments as regards schoolchildren:

     A New York State law requiring Amish students to receive vaccinations does not violate those students’ constitutional rights, a Second Circuit panel ruled Monday.
     The case, which the panel heard this past November, had been brought by three Amish community schools that were fined in 2019 for failing to comply with state-mandated school vaccinations.
     The schools and Amish parents argued their First and 14th Amendment rights had been violated, as many Amish seek to live separately from the modern world and abhor vaccines.
     New York had since 1966 allowed exemptions from mandatory school immunization for medical reasons or sincerely held religious objections. However, following a nationwide measles outbreak in 2018 and 2019, the Legislature removed those exemptions, joining four other states to prohibit any kind of nonmedical exemption.

     I was unaware that a state legislature could override explicit provisions of the federal Constitution. Were you? But let’s proceed:

     Shortly after the new rule was passed, the Dygert Road School, Pleasant View school, and Shady Lane school were fined tens of thousands of dollars each for violating state law after they refused to comply with the law. The schools and several board members sued the state for an injunction.
     In 2024, U.S. District Court Judge Elizabeth Wolford, a Barack Obama appointee, dismissed the complaint. She found the facts of the New York case were similar to another complaint heard in Connecticut that also had been thrown out on a finding of no constitutional violations.
     In a 28-page ruling, the trio of Second Circuit judges upheld Wolford’s dismissal, citing the Connecticut case and also finding the New York law did not run afoul of a landmark U.S. Supreme Court ruling from the 1970s that prohibited compulsory education of Amish children past middle school.

     Chadwick Moore at the New York Post commented thus:

     Still, See you in court! isn’t something you’re likely to hear from the Amish; they tend toward the Christian teaching of turn-the-other-cheek. When a religious freedom case involving the Amish appeared before the Supreme Court in 1972, it was taken up by a Lutheran minister who provided legal counsel on their behalf. The Amish won when SCOTUS ruled Wisconsin’s mandatory schooling law violated the First Amendment’s Free Exercise Clause by forcing their kids past eighth grade against their faith.
     Yet public health precedent shifts the ground — SCOTUS has recently dodged tackling school vaccine mandates head-on.
     […]
     But the First Amendment isn’t a suggestion.
     The Amish might be the canary in the coal mine for even greater acts of over-reach committed by authorities when the next catastrophe hits — all in the name of the “greater good.”

     There you have another of those passphrases: “the greater good.” Apparently, legislators’ and judges’ opinions about “the greater good” can override Constitutionally guaranteed rights. That drains the word rights of all meaning. It becomes indistinguishable from desires.

     I’ve ranted about “compelling government interest” before this. Add “the greater good” to the list of passphrases that can be used to nullify what were once called inalienable rights. In aggregate, those passphrases, wielded by skillful prosecutors and government solicitors in state and federal courtrooms, can destroy any right you may think you possess.

     Just an early-morning thought.