Is Social Distancing Unconstitutional?
Well, first of all, this is the wrong question.
I’ve seen this question cropping up all over social media with various claims made in both directions. “Government doesn’t have the power to lock us down,” often answered with “government can do whatever it wants in an emergency.”
Neither of these are correct. But frankly both miss the point.
In the middle of a pandemic, the question is not what government is allowed to do. The question is whether what government is asking individuals to do, on behalf of all of the entire community, is right and reasonable. We need to worry about one thing, and that’s preserving life.
Americans have always had a peculiar relationship with individual rights. The Constitution, and particularly the Bill of Rights, provide limitations on what government is permitted to do with respect to individual citizens. These are not positive statements about what should be done, but expressions of what should not be done.
This creates a subtle dissonance, because most ordinary people think of “the law” as an expression of collective ethics. In their minds, if something is legal, it must be right. If it is illegal, it must be wrong.
This, of course, has never been the case.
Law and ethics overlap, and in an ideal theoretical universe they would overlap perfectly, essentially occupying the same space. But in reality, there is an imperfect overlap.
As the circles illustrate, there are things which are outside ethical bounds but still legal. There are countless examples of these in society.
Drug companies can sell pharmaceuticals at a several hundred percent markup, bankrupting vulnerable people. Big corporations can choose to produce goods overseas where labour is cheaper, driving Americans out of work. Not illegal, but certainly wrong in the eyes of most Americans. Tax sheltering to avoid paying one’s fair share is unethical but totally legal, and in fact the basis of a massive industry. Adultery is generally not unlawful, but almost universally considered wrong. At-will employment means a boss can fire an employee for any reason or no reason at all, an open door to doing the wrong thing with the law firmly on your side. This is the default employment relationship in our society, and the basis of many wrong firings which have destroyed countless lives.
And of course, history provides many more examples. Prior to emancipation, it was legal to own another human being as property, though even as the Constitution was penned, its authors understood this practice to be morally abhorrent.
There are also examples in the other direction. Civil disobedience pits a champion for doing what is right against established laws to the contrary. Those who leak classified material to the media arguably fall into this category, along with those who went to jail to advance civil rights. Those who breached confidentiality agreements to expose big tobacco behaved ethically but unlawfully. By the same token, a barkeep or shop owner who sells booze or cigarettes to an underage war hero is breaking the law, but upholding the ethical goal of fair treatment in doing so.
In a well-functioning society, we would expect that as time goes on, these two circles would be continually pushed closer together, as self-governing citizens drive laws which affirm their collective sense of right and wrong.
But this is not really what happens. There are instead puts and takes over time. Obviously abhorrent conduct is made illegal while subtly unethical conduct is spirited into legality by the monied and powerful who have access to legislative politics.
But luckily for all of us, law is not our universal guide for navigating life’s challenges. Not even in daily life, but even less so in a crisis.
When we find ourselves threatened as a nation, the response is seldom to worry about whether government impositions are strictly legal, but whether they are right and reasonable. From the civil war suspension of habeas corpus to social distancing lockdowns during the influenza outbreak of 1918–19 to rationing, draft registry, and industrial seizures to fight WWII, Americans have shown that when the chips are down, they will do what is necessary to preserve the republic. This is part of what makes us great, and a reflection that survival — individual and collective — is rightly recognized as an objective superior to all others.
A threat to our national greatness is the contemporary impulse to litigate every attempt by government to act in the interest of public safety. We don’t need a court to tell us whether to adhere to social distancing. The science is clear and the data from other countries is crystalline. If we can get past worrying about what we’re being asked to give up, we will gain something precious: the pride of knowing we’re a good and decent people willing to sacrifice for one another. We’ll get closer together as a people, ironically by staying apart, and find a renewed ability to push our legal and ethical circles into greater overlap.
If we choose to make this about what is legal, the result will be a worse pandemic than was necessary. It’s unlikely that police will pull people over, or state troopers will erect checkpoints. The black helicopters will not come. Those who break the rules will not be thrown in jail. Let’s face it, America’s police power could not possibly contain the will of 330 million citizens even if it tried.
We don’t rely on force nor law nor official edict. We rely on the internal voice of each American whispering to them to do what is right. In most cases this voice is being heard and honored.
But just to return to the opening question, the fact is government has broad latitude in situations like this. Not so much the federal government, which is there to mobilize resources, support states, secure funds to keep markets open, and basically cheerlead. But state and local officials responsible for public health do have the power to keep people indoors, close schools, interdict travel, and shutter the shopping malls.
Where it gets more interesting is when/if government at any level behaves opportunistically, enacting restrictions on liberty that are not clearly tethered to the legitimate underlying interest (preventing deaths in a pandemic) or are more intrusive than necessary to achieve the goal. When government tries to over-extend, it should be challenged. Donald Trump recently moved toward locking down 32 million people across several states with a formal order. He was counseled to leave that formal order for the states in order to stay within his power, and this was a valid challenge which ultimately won out.
State and local public health powers have been tested many times across history and never successfully refuted, because at the end of the day if government cannot act to preserve life — even at the expense of someone else’s liberty — then we are protecting rights unworthy of protection. A right upheld (freedom of assembly) which denies someone else a greater right (life) is an offense to our collective sense of ethics. It may be strictly legal, but we know it’s objectively wrong.
The interesting circularity of individual rights and collective responsibilities is also endless and cyclical. The more individuals insist on testing laws which affirm collective morality but offend abstract principles, the more this misalignment is noticed and acted upon by the growth of laws. The more laws grow, the more a society becomes at risk of arbitrary prosecution, which is a form of oppression.
In other words, the more we insist on challenging what is right, the more we instigate formal edicts about what is right or wrong … the more we prove we need laws to tell us how to behave instead of just doing the right thing.
I expect when it comes to COVID-19, Americans will not resist social distancing, even if it continues for awhile, so long as it is backed by science and remains right and reasonable.
The worry is that a small but vocal segment of us will make this a debate about civil liberties, when it’s really a campaign to preserve the most fundamental and important right of all.
Tony Carr is an American lawyer who writes from his home in Manchester, United Kingdom.
