If truth is the first casualty of war, the liberty of the people may be the second.
In this metaphorical war against the novel coronavirus — as with literal wars against America’s military enemies — we have been willing to sacrifice aspects of our individual liberty for the collective goal of defeating the immediate threat.
Yet all restrictions on liberty, even ones motivated by a desire to save lives, can be taken too far. As Attorney General William BarrBill BarrWilliam Barr's memoir set for release in early March The enemy within: Now every day is Jan. 6 Dems worry they'll be boxed out without changes to filibuster, voting rules MORE has recommended, we should re-evaluate the most “draconian” measures to ensure that we are not unnecessarily limiting our freedom.
The U.S. Constitution, the oldest and most enduring written constitution, is a compilation of checks and balances and protections of fundamental liberties. It was written to ensure that we limit government even when those limits make it harder for us to get what we want.
In 1952, during the Korean War, the Truman administration seized the nation’s steel mills to avert a strike and ensure the continued production of materiel. The Supreme Court held the seizure unconstitutional, affirming the principle that even during emergencies, our leaders exercise power only according to limits established in the Constitution and laws.
During the Civil War, the Great Depression, World War II, and the War on Terror, the Supreme Court has similarly acknowledged that while emergencies may justify extraordinary government action, it is always within limits.
With the aid of hindsight, we can see the abuses that come from granting the government too much power. We should be careful to ensure that we do not repeat the mistakes of previous generations that subjected Japanese Americans to curfews and internment after Pearl Harbor or suppressed sedition at the end of the 18th century, anti-war speech during World War I, and communist advocacy during the “Red Scare.”
The law gives the national government expansive — but limited — power to deal with crises such as the current pandemic. The Constitution permits the government to tax, borrow and spend money for the “general welfare” — a standard that provides essentially no limit on Congress’s discretion.
Thus, the more than $2 trillion in expenditures approved by Congress to combat the virus and restart the economy are within accepted limits on Congress’s authority.
The national government also has power to regulate international trade and to control its borders, so international travel restrictions are also constitutional. Even our right to bodily autonomy can be limited, at least to a point, as the Supreme Court recognized in 1905 when it upheld compulsory vaccinations.
Other actions, however, would be outside the scope of the law, even in an emergency. Without congressional authorization, the president lacks the power, for example, to delay the November election or to impose a nationwide quarantine.
The states have not been as constrained, and many states have imposed significant restrictions on their citizens’ freedom. Most governors have issued stay-at-home orders, and some areas have imposed curfews, imposing severe restriction on people’s freedom of movement. Nobody knows when those restrictions will be lifted.
Even before stay-at-home orders went into effect, people were prohibited from gathering in groups, imposing an obvious limit on our most-treasured First Amendment rights of assembly, speech, protest and religious exercise.
Visits at hospitals and nursing homes have been drastically limited, making it difficult for people to spend time with loved ones. Public buildings, including government offices, libraries and entertainment venues are closed. Some states have delayed their primary elections. Schools are closed — in many states through the end of the academic year. Business-closure orders have put people out of work and made it hard for consumers to purchase items — a concern that implicates people’s financial well-being as well as their Second Amendment rights by making it harder to buy firearms.
While none of these rights is absolute — each can be limited if the need is great enough — it is important to remember that the government must justify its limitations on our inherent freedoms. Doing so is, and should be, a very heavy burden.
A public-health emergency justifies some limitations on our rights, and stopping the spread of this virus must be a top priority. But, as Justice Robert Jackson reminded us, “emergency powers ... tend to kindle emergencies.” We must be wary of giving the government expansive emergency powers when we don’t know what the next emergency will be.
Michael Dimino is a professor of law at Widener University Commonwealth Law School. Follow him on Twitter @mrdimino.