Opinion: COVID-19 vs. the U.S. Constitution
The current coronavirus pandemic is, without exception, serious.
It has taken the lives of many and infected the lives of many more. It threatens our existence.
Strict measures, however necessary to control the spread of COVID-19, have opened a new chapter in American history.
Stay-at-home orders, social distancing and letters from employers vouching for one’s status as someone working an essential job are new to most of us.
Ordinarily we should not expect government officials to demand to see “our papers.”
For us war history buffs, such an inquiry brings to mind a scene at some checkpoint, railway station or along some street, with the demand coming from an imposing uniformed figure flanked by helmeted soldiers bearing sub-machine guns.
It happened. Unfortunately, it might still happen in some places, where nervous travelers must produce the proper documents to prove they are allowed to be where, and sometimes who, they are.
We are not there yet and, because of who we are as a nation and the value we place on human freedom, I believe we will not be.
We are not ordinarily expected to produce any documents saying we are authorized to be out of our home, at least not in the context of a national emergency such as COVID-19.
Usually, the government does not restrict us from traveling to and from work each day. The police in America will not likely ask us to justify not being at home when the government tells us we should be.
That’s because our government does not usually issue such orders, and the U.S. Constitution protects us from unwarranted government intrusion into our lives.
National emergencies, however, can bring change, albeit temporarily.
The United States government must act in order to protect the nation and the Constitution. These protections are only supposed to be temporary, and nothing like the scene depicted a few paragraphs above.
Viruses don’t care about our Constitution though, or our civil rights. They slip into the country undetected, infect people and play havoc with our health system and the economy.
One reason they don’t care is because they cannot. They are just doing what viruses are designed to do, and they are very efficient.
In military parlance, “guerrilla” warfare occurs when well-organized, well-equipped and sophisticated paramilitary networks carry out a campaign of violence and propaganda in order to undermine, de-legitimize and perhaps topple a larger and stronger opponent: the government.
That statement reflects my understanding of guerrilla warfare, anyhow.
Still, we don’t have that. What we have is people. Citizens and non-citizens alike attacked by an indiscriminate virus.
All of us are interested in survival, and we all need the government to do what is legally necessary to stop the threat of coronavirus, as long as our freedoms are protected and the constitutional balance survives.
We are not yet at the point where the government is requiring us to justify not being home. We don’t yet have to provide a slip of paper and our work ID to prove we have a legitimate reason to travel, or are working in an occupation that is critical to the continued functioning of the country.
Some workplaces, however, are issuing such “permits” to their employees; perhaps in preparation for the day they might be needed. Again, we are not yet there.
What about other measures? Political officials around the country are ordering non-essential businesses to close and restricting public gatherings in response to COVID-19.
Are these measures constitutional? Are they enforceable? Can the government impose them?
“These actions fall under executive orders and are constitutionally permissible,” said Mark Hanebutt, media law professor at the University of Central Oklahoma.
Government restrictions, though currently voluntary, could become mandatory. However, they are not supposed to overreach or remain in place permanently.
“[T]he Congress and legislatures make law, but the executive is in charge of enforcing the law and is given the power to maintain order during times of crisis within the mandates of the Constitution and his authority under it,” Hanebutt said.
The executive’s actions, according to Hanebutt, can go too far.
“If the (restrictions) go beyond what the law allows, the Courts will reign [President Donald Trump] in,” Hanebutt said. “But in times of crisis, he has fairly wide latitude.”
What might we expect to see legally as this situation develops? What if businesses and the public push back or don’t comply with orders to close or stay home?
“Generally, people don’t push back, especially when the problem is not political, but biological,” Hanebutt said.
For example, the San Francisco mayor ordered people to stay home, with exceptions, according to Hanebutt, who added he doubts anyone will be arrested if they fail to comply unless a lot of people start ignoring the order.
“The law is most effective when people follow it voluntarily,” Hanebutt said. “Wise leaders generally try to avoid using a heavy hand. Education and reasonable actions by leaders usually receive wide support.”
That COVID-19 represents the biggest existential threat of this generation to date is indisputable.
Its effects are global. It has changed our habits, undermined our health and finances, attacked – and killed – thousands of us, and caused us to worry about ourselves, loved ones and even strangers. It respects neither people nor geographical boundaries.
I haven’t driven much lately. But the other day I decided to try something new.
I waved at everyone traveling in the opposite direction. Some waved back. Others probably simply wondered who I was.
My intent was to make some sort of human connection with everyone I met. To assure even strangers that I care about them as people. Compassion.
Just this past week, a police car stopped in front of my house. The driver’s side door opened, and a police officer stepped from the car, wearing a medical mask and gloves.
I was in my yard and thought maybe the officer wanted to ask me something. She didn’t but, with a wave and a friendly expression, she did explain. She was delivering Meals on Wheels to the elderly woman next door.
All of us need each other right now, no matter who we are.
Reason and compassion.