The Coronavirus and the Constitution

By Rodney K. Smith, Director of the Center for Constitutional Studies 

Humanity has always faced a choice between the security and liberty. With the coronavirus crisis, we are facing just such a choice. There are those who argue that lockdowns or other limitations on liberty are necessary to limit the spread of the virus and save lives. Proponents of stringent government regulations add that more stringent limits save lives and when one dies due to the virus, that individual’s liberty is irrevocably taken. In turn, there are those who contend that individual citizens should be free to decide how they react to the virus, even if their actions may harm others. They also argue that lockdowns or stringent regulations contribute to significant economic and social harms, adding that life without liberty makes for a meaningless life, a life without human dignity.

At the macro level, there are those who praise the efficiency of totalitarian regimes designed to protect the community against natural calamities and their fellow beings. As we observe the totalitarian model at work, it is evident that despots can force their subjects to do what they believe to be in the best interests of the community. Sometimes this approach appears to work, at least in the short-term. Leaders of the Peoples Republic of China (China) have strenuously argued that its imposition of a quarantine or lockdown in Wuhan saved lives, resulting in fewer lives lost than in the United States, a nation that espouses liberty. In making their argument, the Chinese leaders assert that their form of government is designed to benefit the broader community, rather than catering to the liberty of the individual.

Examined closely, however, the totalitarian or very stringent regulatory model of the Chinese government contributed to a worldwide pandemic. As the coronavirus began to spread in China, rather than being forced to be transparent by a free press and democratic processes, the Chinese government sought to cover up the crisis, going so far as to punish those who sought to limit the spread of the virus by bringing the seriousness of the virus to light.

Late in December, before the virus began to spread worldwide, Li Wenliang, a Chinese doctor sought to draw attention to the seriousness of the virus. Li was charged by Chinese police with disturbing the social order by “making false comments.” Li and seven other Chinese medical professionals were quickly silenced by threats of prosecution, in the government’s concerted effort to cover-up the origin and implications of the deadly virus. Ironically, on January 10, 2020, as China continued to insist that the virus was neither serious nor spreading, Li and his parents became ill with the virus. While hospitalized, Li became a whistleblower and began to warn the world of the seriousness of the virus, just days before it claimed his life. In covering up and downplaying the virus, the Chinese government contributed to the spread of what quickly became a pandemic, resulting in the loss of hundreds of thousands of lives and massive economic recession worldwide.

On the other hand, the liberty envisioned by America’s framers is intentionally and admittedly a bit messy and a lot less efficient than totalitarian model of governance; but, as the coronavirus crisis evidences, it is clearly preferable. If we opt for the totalitarian model, we jeopardize the constitutional rule of law and liberty, which can result in the kind of cover up that occurred in China. Furthermore, when we heap praise on totalitarian and draconian solutions, we sadly teach the rising generation a horrific lesson, setting a precedent for governmentally imposed draconian limitations on liberty in times of crisis, limitations that often remain in place long after the crisis has come to a close.

Before we yield to the allure of more stringent or totalitarian solutions and engage unwittingly in attacking the very structures and rights that make us a great nation, it is important to examine closely the successes we have been blessed with as Americans during this crisis. Indeed, as will be shown, they are weathering the coronavirus storm well.

Sadly, there are those, even in the United States, who place liberty and the values secured by the First Amendment in some jeopardy. Leaders on the left and the right seem to take delight, from time to time, in declaring our free press to be “fake news” designed to be deliberately misleading. Some go so far as to argue that the press right should be limited, in an effort to deal with a purported “fake news” problem.

As one who has studiously watched all the major networks and cable stations during the current crisis, it is clear that the commentators sometimes naturally incline toward their own bias and occasionally feed the angry appetites of their viewers to maintain market share to “feather their own nests” of pride and avarice. Many able journalists and medical experts, including most prominently those working on the White House’s Coronavirus Taskforce, are consummate professionals and appear regularly on all major media. As a result, the American people have access to the truth in ways citizens in a totalitarian regime, like China, do not.

We should be praising our free press, rather than belittling it. Indeed, every time we belittle the free press, we undermine the press right and every other right secured by the First Amendment. While the biases of some media commentators are clearly evident, and the free press is a bit messy, as the framers of the Constitution knew it would be, our free press helps prevent cover ups like the one that occurred in China. It also ensures that information is widely disseminated.

We have three branches of government, which must work together in a crisis that implicates life and liberty to ensure that our worst angels are checked. The three branches are doing so in a generally commendable fashion. The Executive Branch, led by President Trump, is now briefing the American on a regular basis, including responding to difficult questions from an ever-inquisitive and sometimes partisan press. Despite lingering partisan differences that impede their capacity to govern, the Legislative Branch, led by House Speaker Pelosi and Senators McConnell and Schumer, are putting America first and are working with the Executive Branch. Indeed, while their legislative product and process is again a bit messy, they have established that they really can govern when they must. They have fashioned legislation designed to deal with the dire economic implications of the crisis.

The Judiciary is also meeting regularly and without concern for politics to ensure that parties are treated justly in difficult times. Courts have checked government excesses, in terms of regulation and limits on liberty, in two ways. In Wisconsin, the state Supreme Court, recently held that the executive branch had exceeded its authority by issuing stringent regulations without working with the legislative branch in formulating a plan for dealing with the virus. Branches of government are intended to check one another, and this is one route that is used to limit draconian exercises of power. A second means of limiting stringent limitations is to recognize the right of individuals to challenge government regulations that limit their rights.

Our Bill of Rights and particularly the rights secured in the First Amendment are serving us well in this time of crisis. Religious leaders like the Most Rev. Oscar Solis, bishop of the Catholic Dioceses of Salt Lake City have exercised their First Amendment rights of speech, calling for calm to avoid panic and urging their flocks to sacrifice for the good of others. Bishop Solis wisely noted, “In our little and humble way, we can contribute to helping in this time of crisis by temporarily depriving ourselves of the Holy Mass. [But we must continue] to pray and practice our faith.” At the outset of this crisis, President Russell M. Nelson noted that the Church of Jesus Christ of Latter-day Saints should be part of “the solution to this challenge” and made “temporary adjustments to worship” as members joined in praying for and ministering to “those who are suffering.” The collective and clarion call for sacrifice and the responsible exercise of liberty has inspired untold acts of human kindness during this crisis.

Other religious individuals and sects argue that their right of free exercise is being unconstitutionally limited by stringent regulations which limit their capacity to worship together. The United States Department of Justice, for example, questions whether California Governor Newsom’s staggered opening of the economy discriminates against religion, by permitting schools and even shopping malls to open before churches are permitted to do so. The Department of Justice has gone even further in opposing the closing of religious gatherings generally on the ground that the limiting of religious exercise limits their right of free expression. Similarly, actions are being initiated in behalf of religious sects and individuals in a number of states arguing that stringent closing requirements infringe on the right of free exercise and expression under state constitutions, which often provide for a higher level of protection for religious liberty than exists under the federal Constitutions. To prevail, the states will have the burden of proving that they had a compelling interest (controlling the spread of the virus) which is being applied in a carefully focused or least restrictive manner.

Similarly, stringent standards limiting gatherings to protest will be challenged by those who have sought to gather to voice their opposition to those standards and by those who refuse to comply with those standards. A similar test to that used in the free exercise area will be applied. Regardless of whether those asserting their right to assemble or associate for the purposes of communicating their opposition to stringent limitations on gatherings ultimately prevail, it is clear that those protests are having an impact, by pressuring states to apply less stringent standards.

Even the right to petition one’s government, a right that only 3% of Americans can identify as part of the First Amendment, has helped facilitate meaningful discussions between the state and federal governments and have done so with more efficiency than was the case at the founding when petitions were tediously written and then submitted to the national government. Citizens are joining to protest or to favor stringent limitations on free exercise, expression and assembly or association. Similarly, those who favor stringent policies designed to curb the spread of the virus are finding various ways of petitioning the government.

The states are also working together to influence the federal government. Federalism, the federal-state relationship, is working well. States and their governors have acted promptly and in a manner that permits experimentation to meet the special needs of their people. Some have adopted more stringent policies designed to protect the broader community, while other states have adopted less stringent and more libertarian leaning policies. Some states are even joining forces in petitioning the federal government. These acts, which James Madison referred to as interposition, have been highly effective in creating a dialogue between state executives and President Trump, as well as Congress.

Federalism has proven effective as the federal government, largely through FEMA and other departments and federal agencies, has orchestrated efforts that can only be undertaken at a broader national level. The exchange of ideas and support, together with a variety of differing state policies in dealing with the crisis, have provided for experimentation to determine the most effective balance between the values of the broader health and safety and individual liberty.

America’s seemingly inefficient process of ordered liberty, which combines structures of government designed to avoid tyranny and protect rights, on the one hand, and efforts to secure health and safety, on the other hand, is proving to be messy but effective in striking the right balance, by securing safety without yielding to that allure of more tyrannical modes of governance. For their part, totalitarian governments have lacked transparency throughout the process with a resultant diminution in human dignity and trust on the part of the people they purport to serve.

In closing, it should be emphasized that most Americans see coronavirus as a genuine threat and not a hoax and are choosing to exercise their liberty in responsible ways. They view that liberty as a treasure and in some instances, as was so often true of the founding generation, as a providential gift that can bind rather than divide a free people who understand that human dignity and respect for the rights of others are the bulwark of a free society. By exercising their rights responsibility, Americans do much to secure those very rights, while also addressing health and safety issues.

What of the outliers, however, who assert their rights and fail to understand that ordered liberty requires that freedom be used responsibly? The medical and the legal answer is the same – rather than imprisoning or silencing the recalcitrant, as has been done in totalitarian regimes, we have largely chosen to exercise “social distancing,” the wearing of masks, and where necessary quarantining, to protect our health and safety. Americans have resorted to more stringent regulations, characteristic of more totalitarian regimes, only under the most severe of conditions, as has been the case in some cities and states, in which stringent regulations have been imposed by democratically elected officials. Our system of ordered liberty has also enabled us to use the tools of persuasion that are the essence of a free society to persuade the hesitant.

James Madison was correct when he asserted, “We are right to take alarm at the first experiment upon our liberties.” Amid a life-threatening crisis, we have wisely eschewed the allure of totalitarian solutions and are reaping the miracle of a nation conceived in liberty and secured by a written Constitution. One can hope the rising generation will take this to be the major lesson learned from this otherwise awful, even heartwrenching, crisis.


 

Rodney K. Smith directs the Center for Constitutional Studies at Utah Valley University and is the author of JAMES MADISON: The Father of Religious Liberty and DOLLEY AND JAMES MADISON: An Unlikely Love Story that Saved America.