Which Lock­downs are­con­sti­tu­tional?

One law pro­fes­sor ar­gues against lock­downs that limit some kinds of lib­erty but not oth­ers. An­other com­men­ta­tor says the ques­tion is not that sim­ple

Newsweek - - Periscope -

The gov­ern­men­tal re­sponse To The COVID-19 epi­demic has per­haps seen the most sweep­ing peace­time re­stric­tions of con­sti­tu­tional rights in U.S. his­tory. A wide ar­ray of con­sti­tu­tional rights have been in­truded on by lock­downs, clo­sures, quar­an­tines, iso­la­tion mea­sures and so­cial dis­tanc­ing re­quire­ments.

The states’ mea­sures have led to a wave of law­suits and court rul­ings about their im­pact on con­sti­tu­tional rights, with the most high-pro­file ones in­volv­ing prayer and abor­tion. How­ever, the ba­sic le­git­i­macy of the gov­ern­ment de­priv­ing mil­lions of their ba­sic lib­er­ties and liveli­hood has not been a large part of the de­bate. In­stead, it has been about how th­ese mea­sures ap­ply to cer­tain par­tic­u­lar, and highly politi­cized, rights.

What­ever the mer­its of the harsh mea­sures im­posed in re­sponse to COVID-19, such mea­sures should be seen as ei­ther in­her­ently prob­lem­atic or tol­er­a­ble, re­gard­less of what clo­sures and so­cial dis­tanc­ing might mean for par­tic­u­lar rights.

The Con­sti­tu­tion re­serves for states broad power to pro­tect the health of its cit­i­zens. And the le­gal frame­work of con­sti­tu­tional rights pre­sumes a

stan­dard sit­u­a­tion, where the rights’ en­joy­ment does not harm oth­ers. States in epi­demics have al­ways quar­an­tined or iso­lated those who are ill or have been ex­posed to a con­ta­gion. But the COVID-19 lock­downs go much fur­ther, re­strict­ing the free­doms of those who pose no ev­i­dent dan­ger—a re­sponse to the long in­cu­ba­tion pe­riod and sig­nif­i­cant in­ci­dence of asymp­to­matic trans­mis­sion.

Th­ese lock­down or­ders are an in­her­ently blunt tool—or, in con­sti­tu­tional law par­lance, “over­broad.” Yet in the name of pub­lic safety, Amer­i­cans largely agreed that the Con­sti­tu­tion must tol­er­ate the oth­er­wise intolerabl­e—the broad re­stric­tion of ba­sic lib­erty. Con­sti­tu­tional lib­erty is not just about abor­tions and guns. It also has some­thing to do with be­ing free—free to meet a friend, free to put food on one’s ta­ble and so on.

Yet COVID-19 con­sti­tu­tional chal­lenges are not largely about the gen­eral mas­sive re­stric­tion of lib­erty. In­stead, they have been about seeking ex­cep­tions for com­mu­nal prayer, or for abor­tion fa­cil­i­ties. (The un­usual ex­cep­tion is last month’s Wis­con­sin Supreme Court rul­ing, which con­cluded the cur­sory process be­hind the gover­nor’s clo­sure or­ders was in­ad­e­quate, but did not ques­tion the ba­sic abil­ity to take such mea­sures.)

Yet if such broad re­stric­tions are in­deed war­ranted, courts should not be sym­pa­thetic to spe­cial plead­ing for par­tic­u­lar rights—es­pe­cially be­cause

“The states’ mea­sures have led to a wave of law­suits and court rul­ings.”

of the re­al­ity that dif­fer­ent rights have vastly dif­fer­ent po­lit­i­cal va­lences. At least in our times, con­sti­tu­tional rights come in dif­fer­ent col­ors.

Lib­er­als care about con­sti­tu­tional rights when it comes to abor­tions and in­mates; con­ser­va­tives will gen­er­ally say that those rights, or par­tic­u­lar ex­ten­sions and penum­bras of them, are not rights at all. On the other hand, con­ser­va­tives greatly value the pro­tec­tion of gun rights and the re­li­gious rights of the First Amend­ment— again, in for­mu­la­tions that lib­er­als might broadly see as mis­taken. Like col­or­ing states red or blue, this is, of course, a mas­sive over­sim­pli­fi­ca­tion, but it cap­tures some­thing im­por­tant.

As the Supreme Court has said, there is no con­sti­tu­tional hi­er­ar­chy of rights. There is no pri­or­ity be­tween buy­ing a gun, say­ing a prayer, hav­ing an abor­tion and be­ing able merely to walk out into the street. All are con­sti­tu­tional val­ues so long as they do not en­dan­ger oth­ers; and the cen­tral as­sump­tion of the coro­n­avirus mea­sures put in place is that ev­ery­one might pose a covert, ex­po­nen­tially com­pound­ing dan­ger to the pub­lic health. (The Supreme Court has called abor­tion a “fun­da­men­tal” right, but by that it meant it was im­por­tant enough to war­rant con­sti­tu­tional pro­tec­tion de­spite not be­ing ex­pressly men­tioned in the text. But hav­ing risen to the pan­theon of rights, it takes an equal place among them.)

But per­haps the pub­lic health mea­sures bur­den dif­fer­ent rights dif­fer­ently. Abor­tion rights ad­vo­cates ar­gued in court that bans on all non-emer­gency sur­gi­cal treat­ments deny women the sub­stance of the right—at least for the sub­set of women close to the ges­ta­tional stage where abor­tions are for­bid­den. Con­versely, sup­port­ers of gun rights claim that clos­ing gun shops en­tirely ex­cludes from Sec­ond Amend­ment pro­tec­tion some sub­set of peo­ple— and at a time it may mat­ter most. Those who chal­lenge clo­sures of places of wor­ship claim the in­abil­ity to come to­gether in prayer, sub­ject to dis­tanc­ing guide­lines, per­ma­nently de­prives the faith­ful of an opportunit­y to draw close to or so­licit God at a cru­cial mo­ment.

Given the vary­ing po­lit­i­cal and cul­tural va­lences of th­ese rights, there is no ob­jec­tive way to com­pare bur­dens. Some might say the bur­den on re­strict­ing par­tic­u­lar modes of com­mu­nal prayer is zero, be­cause prayer is in­ef­fec­tual, and re­li­gion merely a pri­vate pas­time to which the Con­sti­tu­tion shows a quaint so­lic­i­tude. Oth­ers would say the bur­den of de­lay­ing abor­tions is zero, be­cause the re­stric­tion ac­tu­ally saves a life. But gain­say­ing the sub­jec­tive bur­den in ef­fect un­der­mines the idea of its con­sti­tu­tional pro­tec­tion.

Noth­ing could more un­der­mine COVID-19 re­sponse than to put it in the crosshairs of the con­sti­tu­tional cul­ture war. At the same time, there should in­deed be some way for cit­i­zens to push back against pub­lic health mea­sures that go too far.

Let me pro­pose a short­cut: Har­ness the happy cir­cum­stance of po­lit­i­cally op­pos­ing con­sti­tu­tional rights. The most dan­ger­ous sit­u­a­tion is if those so­lic­i­tous of one par­tic­u­lar kind of lib­erty are able to think they can save theirs amid a more gen­eral re­stric­tion. But if the gun folks and the abor­tion folks and the prayer folks and the press folks and the prison folks all un­der­stood that their hard­won rights are all at stake in broad clo­sure or­ders, such mea­sures will only be used in the clear­est ne­ces­sity.

We need a sim­ple rule: Ei­ther such un­usu­ally broad mea­sures must make ex­cep­tions for all par­tic­u­lar con­sti­tu­tional rights—or they need make no ex­cep­tions.

→ Eu­gene Kon­tro­vich is pro­fes­sor of law at Antonin Scalia Law School. The views ex­pressed in this ar­ti­cle are the writer’s own.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.