One of the problems with having a Bill of Rights and the Constitutional freedoms thereof is that as with all absolutes, there are times when compromises have to be made, even if temporarily. We’re all familiar with the doleful example of shouting “Fire!” in a crowded theater (anyone remember those?), and I will reluctantly concede that the right to keep and bear arms should not necessarily include the possession of tactical nuclear devices.
The recent lockdown has given us a few more examples. I know that various Democratic elected officials have used the occasion of a purported pandemic to indulge their inner Mussolini, but ignore that for a moment while we ponder the big picture.
The best example of a situation requiring a temporary freeze on a Constitutional right is that of religion, where church services were banned (amazingly, not for Muslims but that’s a discussion for another time) because it is completely logical to suppose that it may not be in the public interest to have hundreds of people crammed into a single room, breathing all over each other and touching hands, etc.
And of course, the First Amendment’s rights to peaceable assembly and practice of religion would both stand against prohibition of said services. At the same time, however, the potential risk of wholesale infection would seem to support such a Constitutional abridgement — provided that it was temporary, of course. (And the stupid politicians did themselves no favors by even banning the congregation of worshippers in the churches’ parking lots, which is so stupid a ban that it defies both logic and commonsense, but that’s politicians for ya.)
On the one hand, therefore, it is a perfectly-natural impulse of people to seek comfort where they can during a time of disaster. My own take is that people need to be realistic about this kind of thing — God isn’t going to punish you for not going to church in times of an epidemic or pandemic — but at the same time I understand and indeed sympathize with people for having that urgent need for the solace of religious congregation. All religions are inconvenient, behavior-wise, and this is just one manifestation thereof.
On the other hand, the society requires a sensible public policy to prevent mass infection. (In the case of the Wuhan virus, the dangers may have been overstated, but that too is a discussion for another time. For the sake of this discussion, let’s assume that the pandemic was going to be as dreadful as first thought.) Had governors (at all levels) done nothing to try to prevent the rapid spread of infection, for fear of running afoul of Constitutional infringement, they would have been excoriated (and rightfully so) for their negligence and disinterest in the welfare of their citizens. (Hardcore libertarians, take note.)
The problem with accommodation of said Constitutional abridgements and infringements is that there is always the risk that said governors will not only take things too far (right now, Michigan governor Gretchen Whitmer’s ears should be aflame let alone burning), but will use the opportunity to increase still further the State’s power over the populace — which they have done, almost without exception.
That still doesn’t negate the fact that occasionally, hard choices have to be made; and it’s all very well to say things like “We will allow our rights to be infringed, but only temporarily” because in the case of communicable disease or other illness, there is always going to be the question of “How long is temporary?” At what point is it safe to say, “Okay, as you were” when the risks of pandemic are, almost by definition, unknowable?
It’s a tough question, but on the whole I think that we managed to dodge this bullet better than the Europeans and Brits have. (The foul “track and trace” proposals as proposed by the various politicians Over There will never fly Over Here, and thankfully so.) The exceptions — where we were screwed by the governors — are primarily to be found in states governed by people for whom power is the sine qua non of political existence (unsurprisingly, the socialists like Cuomo, Whitmer and Newsom being the best / worst examples thereof).
I think that the lessons we have learned on this topic should be both memorized and debated long and hard, and I hope this post can serve as a starting point.
