By Nathan Shelton
For many of us, the COVID-19 pandemic has raised concerns of both public health and civil liberties. On April 3rd Governor Kay Ivey issued a statewide Stay at home order which closed nonessential private businesses, banned religious services, and limited gatherings of groups larger than 10. On May 21st Ivey issued a safer at home order, opening some businesses while requiring social distancing, rigid sanitation, limiting occupancies of businesses, and requiring facial coverings. Responses to these mandates and others nationwide have received mixed responses. While many people rightfully fear a federal government that can shut down your business and cripple your livelihood, others nonsensically criticize public health recommendations and the rights of private businesses. So, what should be the role of the government in a global pandemic?
Let me start by defining the limitations which I believe the government should never exceed, even in emergencies such as these. On March 4, 1933, President Franklin Roosevelt changed the course of executive authority in our nation for decades to come. At the height of the great depression, Roosevelt famously said in his inauguration address, “I shall ask the Congress for the one remaining instrument to meet the crisis: broad executive power to wage a war against the emergency as great as the power that would be given to me if we were in fact invaded by a foreign foe.” As Steven Levitsky puts it: “Roosevelt was invoking the most open-ended enumerated power the constitution offered him as president-war powers- to confront a domestic crisis1.” President Trump used similar authority when he invoked the Defense Production Act, forcing businesses to halt production and make PPE, ventilators, and testing kits instead2. Several Governors, most notoriously Gretchen Whitmer of Michigan, also received criticism for authoritarian-like policies. Whitmer dictated that stores such as Walmart and Costco or Target could not sell “non-essential” items3.
It is obvious that during times of crisis certain rights have been suspended, both now and historically – but we know that this is wrong and a very dangerous precedent to set. Attorney General Barr stated that “The constitution is not suspended in a time of crisis4,” so why does it so often seem like it is? Private businesses have been forced to close, pastors have been told they can’t hold religious services, as well as various other restrictions. These are blatant violations of your constitutional rights, and in my opinion, exceed appropriate government authority even in a domestic crisis.
On the flip side of things, we should consider what is not a violation of your rights, but within the rights of private businesses and for the betterment of our nation and others. That is- wearing facial coverings, practicing social distancing, and regular sanitization. First of all, let me state unequivocally that these practices have been proven to limit the spread of coronavirus, any story or opinion contrary to that is pseudoscience plain and simple. Now let’s consider the interaction of government mandates of these practices and your rights. Austrian Economist and political philosopher F.A Hayek states that, “Nor is there any reason why the state should not assist individuals in providing for those common hazards of life against which, because of their uncertainty few individuals can make adequate provision… But there is no incompatibility in principle between the state’s providing security in this way and the preservation of individual freedom5.” Hayek, a civil libertarian, indicates that your individual freedom is not at risk when the state protects individuals from unpredictable hazards of life. A global pandemic certainly fits this mold. Unlike the aforementioned scenarios, wearing a mask and protecting others bears no conflict of interest with yours or others’ livelihood. Some claim, as Mike Pence did that not wearing a mask is “my first amendment right” or a political statement. The problem with these statements is that the courts have shown that freedom of speech is not limitless, especially ‘symbolic speech’—there are time, place, and manner restrictions. In the landmark Supreme Court case Schenk vs. United States, the court established a ‘clear and present danger’ test- saying that if your speech is materially dangerous to others it is not constitutionally protected6. Clearly, not taking necessary steps to protect others from a deadly pandemic represents clear and present danger and the government has the right to censure that speech. In this scenario, however, it is also clear that your individual freedom is not at stake.
So, during this time let’s respect federal, state, and local government authorities’ recommendations on facial coverings and social distancing. Wear a mask and be considerate of the vulnerable people in your community.
Nathan Shelton is a Hewitt Trussville High School graduate and a current student at Mercer University.
notes
- Levitsky, S., & Ziblatt, D. (2019). How democracies die. UK: Penguin Books.
- Toluse Olorunnipa, N. (2020, March 19). Trump invokes rare powers to combat coronavirus outbreak he previously downplayed, calling it ‘war’. Retrieved June 30, 2020, from https://www.washingtonpost.com/national/coronavirus-trump-powers-war/2020/03/18/48056fd8-68cf-11ea-9923-57073adce27c_story.html
- Harsanyi, D. (2020, April 13). Coronavirus Authoritarianism Is Getting Out of Hand. Retrieved June 30, 2020, from https://www.nationalreview.com/2020/04/coronavirus-authoritarianism-is-getting-out-of-hand/)
- The Detroit News. (2020, April 29). Editorial: New civil liberties squad a check on authoritarianism. Retrieved June 30, 2020, from https://www.detroitnews.com/story/opinion/editorials/2020/04/29/editorial-new-civil-liberties-squad-check-authoritarianism/3041216001/
- Hayek, F. A., & Caldwell, B. (2008). The road to serfdom: Texts and documents. New York: Routledge.
- Schenk vs. United States. (n.d.). Retrieved June 30, 2020, from https://www.oyez.org/cases/1900-1940/249us47