Liberty in times of crisis

  • 9 April 2020
  • NormanL

Even when emergency conditions require governments to exercize extraordinary powers, there are still limits to what the state can do when it comes to fundamental individual rights.

Not that some seem to care about such constitutional niceties:

To "save the nation" from COVID-19, Cornell law professor Michael Dorf argued two weeks ago, Congress should suspend the writ of habeas corpus, an ancient common-law right that allows people detained by the government to demand a justification. Yet the Constitution says "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Although neither of those circumstances applies, Dorf suggested that the spread of the COVID-19 virus from other countries to the United States could be construed as an invasion. While "no one knows" whether the courts would accept that interpretation, since "Congress has only ever suspended habeas in wartime," Dorf said, "there is reason to think that the courts would dismiss a habeas case following nearly any congressional suspension."

That's a shocking line of thought. But surely, it's just an outlier. No one else thinks that way, right?

In a recent survey of 3,000 Americans, the University of Chicago's Adam Chilton and three other law professors found bipartisan agreement that "now is the time to violate the Constitution," as they put it. The survey asked whether the respondents would support various constitutionally dubious policy responses to the epidemic.

Sizable majorities of both Democrats and Republicans favored confining people to their homes, detaining sick people in government facilities, banning U.S. citizens from entering the country, government takeovers of businesses, conscription of health care workers, suspension of religious services, and even criminalizing the spread of "misinformation" about the virus. "Even when we explicitly told half of our sample that the policies may violate the Constitution," Chilton et al. report, "the majority supported all eight of them," including the speech restrictions.

"After the threat has subsided," the law professors conclude, "Americans must recognize any constitutional violations for what they were, lest they become the new normal."

There are always those who, in times of crisis, are willing to cede whatever authority, for however long, to government. But even in times of greatest crisis, we should, and we must, resist calls to immediately, indefinitely, amd willingly surrender our liberties. Once given away, we may never be able to get them back.