COVID-19 has given rise to a critical Constitutional question that we have hardly encountered before in U.S. history: At what point is the government justified in removing our civil liberties in a state of a national emergency?
As religious services and non-essential businesses continue to feel the weight of government restrictions during state-wide lockdowns, many individuals have begun to protest that the government has gone too far. Even in a state of emergency, the government’s central obligation is to uphold and protect the civil liberties of the American people.
This Is Not a New Problem
The main question boils down to this: at what point does a national emergency justify the government’s increasing control over our individual lives, particularly when the government continues to restrict our fundamental civil liberties? This question is a complicated one, to say the least, and even though there is some legal precedent for the scope of government’s action during a state of emergency, it’s hard to equate past situations to our current one.
For example, after declaring a national state of emergency at the outbreak of the Civil War, Abraham Lincoln temporarily suspended the writ of habeas corpus, the Constitutional right to a trial by jury. This was a reaction to the uprisings of Southern sympathizers sabotaging Union Army operations in Maryland and Pennsylvania. This Constitutional issue was taken up by Supreme Court Justice Taney in the case Ex Parte Merryman (the same justice who wrote the majority opinion for the infamous Dred Scott case). Another instance occurred in 1910 when Mary Mallon, a woman from New York, refused to remain quarantined after being diagnosed with typhoid. She was imprisoned and sent to solitary confinement.
At what point does a national emergency justify the government’s increasing control over our individual lives and fundamental civil liberties?
In light of these instances, the question of the scope of the government’s power to control public life in order to protect the common health and good during a state of emergency is not a new issue. What is new is the scope of both the state of emergency and the government’s reaction to it. The COVID-19 pandemic presents a real threat to millions across the world, and its rate of contagion could mean that something as simple as standing too close to someone in the grocery store line could mean that you’re spreading the virus unknowingly.
As a result, the government has understandably attempted to slow the spread of the virus through restricting normal functions in public life that could facilitate the spread of the virus. However, in doing so, the government has assumed the power of determining what is and isn’t necessary or “essential” to public life, and this has raised a unique Constitutional question that doesn’t have much legal precedent.
Where Did the First Amendment Go?
Most state governments have thus far deemed various businesses and gatherings essential, such as grocery stores and hospitals. However, many states have determined that religious gatherings are “non-essential,” and therefore punishable by the law. At first glance, cancelling religious gatherings might seem like a logical step in slowing the spread of the coronavirus.
However, underlying this decision is a very serious Constitutional question concerning the First Amendment. The government has overridden the individual conscience of millions of religious Americans who hold religion as the most central and essential aspect of their life. While grocery stores and restaurants remain open under strict health regulation—such using masks, gloves, and spacing customers out according to CDC guidelines—religious services have been shut down altogether, even though many churches could have practiced social distancing methods just as effectively as mainstream grocery stores.
The government has overridden the individual conscience of millions of religious Americans who hold religion as the most central and essential aspect of their life.
While many religious groups have willingly chosen to carry out their services over streaming services like Facebook Live and Zoom, the question still remains: how does the government have the authority to deem religious gatherings as non-essential in the first place, to the extent that religious gatherings are now punishable by law? Why can’t churches and mosques be held to the same guidelines as those in grocery stores?
What the government’s action against religious services has revealed is that full religious liberty and expression is not considered essential during a state of emergency, and this should concern us.
And the Fourth Amendment?
Not only are religious individuals feeling the weight of their First Amendment rights in question, but also non-essential businesses are claiming another Constitutional infringement concerning the Fourth Amendment—the government’s unlawful seizure of property.
Millions of businesses deemed “non-essential” have been forced to close indefinitely due to COVID-19. Though the initial closure of businesses by state governments is an understandable measure in a state of emergency, the prolonged closure has been detrimental to the financial well-being of millions of Americans and consequently to the national economy. The unemployment rate skyrocketing to 13%—the highest since the Great Depression—is indicative of the detrimental effects of COVID-19 on the economy.
As a result, millions of American business owners are claiming that the government’s indefinite forced closure of “non-essential” businesses is a violation of the Fourth Amendment, namely, that the government cannot seize private property unlawfully. Though there is a case to be made that the government does have a lawful justification to seize private property—in this case, the forced closure of property—the question remains at what point does this forced closure of business become unlawful and detrimental to the financial well-being of the American people?
There has been a troubling debate in D.C. about acquiring individual data through Facebook and Google to monitor the movements of the American people during enforced quarantine.
Another concerning debate has emerged concerning the Fourth Amendment—namely, the government’s unlawful seizure of digital property. There has been a troubling debate in Washington D.C. about acquiring individual data through tech giants like Facebook and Google to monitor the movements of the American people during enforced quarantine. These discussions have particularly involved using Facebook Messenger and Apple/Google maps to monitor the location of individual citizens to ensure that they do not go into “non-essential” areas. Sounds Orwellian, does it not?
Our digital data, a form of property, cannot be seized by the government without due cause. Even if a state of emergency is considered a “due cause” for the seizure of our digital property, there is no policy or precedent to ensure that the government will cease seizing our property once the state of emergency is over.
The nature of these Constitutional questions raises a deeper question about the nature of civil liberties. Are civil liberties immutable rights held by the individual that the government is obligated to protect, or are they conditional upon circumstance, giving the government the power to take them away when circumstances change? This question—and the answer— are definitely complicated as the government is trying to ensure the public safety of the American people during this crisis, but it gets at the heart of the role of government itself.
Is the government’s role to protect our rights or to grant us our rights?
Is the government’s role to protect our rights or to grant us our rights? If the former, then there has to be a safeguard around our civil liberties that the government can’t touch, even in a state of emergency. If the latter, then we run the risk of giving the government the ultimate power of determining the circumstances in which we can exercise our rights and when we have to surrender them.
The way that we proceed during our current crisis will establish the policy and legal precedent moving forward. Therefore, these questions are of the utmost importance concerning the role of government in securing the flourishing of the American people. Whether we choose to enshrine our civil liberties now in our current state of emergency, or whether we let the government restrict our liberties based on mutable justification, will determine how the government will act in future times of crises.