As governments around the US struggle with the contentious question of when to relax stay-at-home orders, social distancing laws, and the closures of non-essential businesses and venues, it is worthwhile to consider the question of the extent to which these measures are legal under the US constitution.
I submit that they are not. The first amendment of the US Constitution guarantees a right to peaceably assemble – a right that is unquestionably violated by laws preventing assemblies. The first amendment also guarantees freedom of religion, a freedom that is clearly violated when church services cannot be held (ask any minority religious group in a religiously oppressive country what a notional “freedom of religion” means when services cannot be legally held). The fifth amendment also states that “No person shall[…]be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”. And yet many of these orders were put in place by executive action, and much of the country was morally elated when a Tennessee man was forced by the state attorney general into donating his legally-acquired property for no compensation. Were we to poll the American people in 2019 and ask them whether anything would legally or morally justify laws that require they stay at home, denying them even the right to visit family members, except for essential travel to grocery stores and doctors’ offices, I can only assume that the overwhelming majority or respondents, myself included, would have answered a wholehearted “no”, and most of us would have cited constitutional reasons for that objection.
And yet the majority of the American people, myself included, have by and large supported stay-at-home orders and the general conditions of lockdown that have been implemented to slow the spread of Covid-19. Why and how do we rationalize this dissonance – or is it simple hypocrisy? The term “state of emergency” and “state of exception” define this period well, and are widely recognized by all manner of legal bodies—from the ancient Roman Senate’s idea of iustitium to modern US Congress’s National Emergencies Act—as being times in which the rules cannot and should not apply because the pace and severity of the threat is such that quick and decisive action must be taken. The Roman iustitium ended roughly when a new ruler was able to establish himself as legitimate; the National Emergencies act stipulated the conditions and limitations of executive power. In contrast to these more orthodox opinions on the matter, the Nazi legal scholar Carl Schmitt used such times as proof that in truth, the modern liberal state was at its core authoritarian, and that the formalism of procedural and deliberative democracy would always be cast aside like so much tattered clothing as soon as soon as “real” decisions had to be made.
I hope that most people would not follow Schmitt’s logic to argue that we must discard the trappings of democracy and embrace the authoritarianism inherent in any governmental system. We must realize, rather, that there are simply two systems at work: the democratic one that prevails in normal times, and the emergency one that activates temporarily to save us in the face of imminent danger like that posed by Covid-19. I strongly disagree with the goals of the armed protestors who demand an immediate end to emergency restrictions. They contravene the advice of public health officials the world over, and put at risk the health of the entire country and world. However, their existence is vital, for they remind us that this state of exception must remain just that: an exception. They represent the political cost that a free people must impose on a government in order to prevent such exceptional circumstances and such obvious—but necessary—abrogation of constitutional rights from becoming a permanent condition.