Americans always lose some constitutional rights during a crisis.
Such infringements fall into three categories. The most egregious examples generate near-uniform disdain, but usually only once a crisis passes, and with the benefit of hindsight. Examples include President Franklin Roosevelt’s internment of Japanese Americans during World War II, or Sen. Joseph McCarthy’s actions during the Red Scare. With more subtle losses of civil liberties during a crisis, the risk is that rights lost are never truly restored. Consider the Patriot Act after 9/11. In the third category are genuinely provisional measures that were appropriate and manifestly needed. Temporary quarantines during past pandemics fall into this category.
Extraordinary measures are needed to address COVID-19, and some might not be constitutional during normal times. But in which category will history place the current infringements? To make this determination, we balance the public interest in saving lives with the severity of the constitutional infringement. Actions must be overwhelmingly in the public interest, rooted in reason not pretext, and accomplished by the least intrusive means.
Two weekends ago, the governor of Rhode Island directed the National Guard — armed and camouflaged — to search and evict visiting New Yorkers due to their allegedly heightened coronavirus risk. This violated Article IV of the Constitution, which forbids states from discriminating against non-residents or restricting their movement. Acts like this will fall in category 1, as the severity (door-to-door searches by the military) and illogic (what about Rhode Islanders who traveled to New York?) made it unreasonable.
Also questionable are the arrests of pastors seeking to hold services, a First Amendment violation. If a house of worship implements the same careful measures as a retail establishment, why should a hardware store remain open while a church is closed?
Texas recently used coronavirus as an excuse to prohibit abortions. Because policymakers there have manifested hostility toward this right in the past, this will likely be viewed as a pretext to achieve illegitimate ends.
In the middle category are other recent government acts. The Constitution guarantees a republican form of government with checks and balances, and yet lately governors and mayors have governed by near total executive fiat. This may be momentarily accepted because of the crisis, but we must be careful that the state of emergency isn’t stretched out too long. The same goes for proposals to make the population submit to regular tests to get a pass to engage in activities (moving about, affiliating with whom you wish and earning a living) that are normally considered rights, not privileges. This may make sense at the height of a pandemic, but we can’t let it become the new normal.
Sensible restrictions include constraining the right to protest and petition the government in person. Normally these would be clear First Amendment violations, but as Justice Robert Jackson noted, the Constitution is not a suicide pact. The last thing this crisis needs is unchecked spread of disease in government buildings and extensive infection of key personnel. As long as these measures are temporary and proportional, they appear to be constitutional and wise.
I’m frankly not sure in which category historians will place other infringements. My friends who are Second Amendment defenders have pointed out that in Los Angeles and San Francisco, cannabis has been deemed an essential business, but acquiring the means to protect your family is not – even though there is no meaningful scientific distinction between the risk of spread in the different retail establishments. Closing courts also seems problematic during a crisis, as it is precisely during these times that the judicial branch is most needed.
During a crisis, panic can make every extreme seem justified. Our government must avoid egregious violations that history will deem excessive. The people must ensure that temporary measures don’t become permanent. And better planning can diminish the need to infringe rights in the future.
Originally published in the Orange County Register.