Do the lockdowns have any limiting principle?

As the Supreme Court weighs in for the first time, it’s time to consider where the government’s ability to restrict basic freedoms begins and ends

Late Wednesday afternoon, the Supreme Court ruled on government imposed COVID-19 regulations for the first time, striking down Governor Andrew Cuomo’s restrictions on religious worship.  Not surprisingly, in today’s coronavirus consumed country, the ruling was narrowly decided in a 5-4 split and not without controversy.

In her dissent, Justice Sonya Sotomayor noted, “I see no justification for the Court’s change of heart, and I fear that granting applications such as the one filed by the Roman Catholic Diocese of Brooklyn (Diocese) will only exacerbate the Nation’s suffering.”

In his case, I believe Justice Sotomayor perfectly encapsulated the drive behind lockdown proponents:  They fear a return to normal activities will worsen the nation’s suffering.

On its face, this is not an unreasonable position to take.  The government is charged with preserving the general welfare, and, in emergency situations, can exercise authority to protect the populace.

I don’t think any reasonable person on the left or the right disagrees with this in principle.

In practice, however, what has been completely missing from the discussion is the limiting principle.  Is there anything the government simply cannot do, under any circumstances, to protect you from the virus?

This isn’t an idle question.

Two days before Thanksgiving, the Democrat Governor of Pennsylvania, Tom Wolf, ordered private liquor stores and bars to close at 5 PM on Wednesday November 25 until 8 AM on Friday the 27th.  In a similar vein, Los Angeles County in California closed all outdoor restaurants a day earlier.

If a governor, on their own, with no vote or review process of any kind, can order liquor stores closed and a county can shut down all in-person dining, what can’t they do?  Can Tom Wolf wake up tomorrow and order other businesses closed?  Can LA County ban even outdoor dining indefinitely?

Some lockdown proponents also argue that these and other restrictions around Thanksgiving are just for “one holiday,” and therefore not a big deal in the grand scheme of things, but the original “Fifteen Days to Slow the Spread” started in March.  Nine months later, state and local governments are still exercising the same emergency powers in the name of public safety.

How long can governments exercise these powers without a vote?

Over the past few weeks, everyone has rightfully been excited about the possibility of an effective vaccine distributed to all Americans in the first half of 2021.  Dr. Anthony Fauci and others have argued that there’s a “light at the end of the tunnel,” but we need to continue with some unspecified level of restrictions until then.

Yet, what if the vaccine isn’t as effective as advertised or there are more difficulties administering it?  What if it doesn’t work at all?

In that case, do we lift the restrictions and accept the fact that coronavirus is simply another nasty pathogen we have to live with potentially forever?  Or do we continue the partial lockdowns indefinitely in the name of safety?  Who decides?

Benjamin Franklin once said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety,” and, traditionally, debates about what the government can and cannot do in the name of safety were balanced by the impact on our freedoms.

After 9-11, for example, everyone was rightly concerned about what security measures were acceptable in a free society facing a new age of terrorism.  The American Civil Liberties Union testified before a Senate Committee a couple of years later:

America faces a crucial test.  That test is whether we – the political descendants of Jefferson and Madison, and citizens of the world’s oldest democracy – have the confidence, ingenuity and commitment to secure our safety without sacrificing our liberty.

Clearly, the coronavirus pandemic is another, even more challenging test, but these crucial debates don’t seem to be happening.  The media is uninterested.  The lockdown proponents appear ready to accept any restrictions, however arbitrary or capricious.  The courts, generally the last bulwark for liberty, have been mostly silent.

It took nine full months for the Supreme Court to weigh in.  The majority ruling finally noted the obvious:  Even in a pandemic, the Constitution cannot be put away and forgotten.

Since March, however, that’s precisely what’s happened:  The government, primarily at the state and local level, has exercised powers never before seen and implemented policies that have never before been tried or even discussed publicly.

They have done this with almost no check on their power, little debate, and no actual votes.

That last fact shouldn’t be underestimated:  These governments aren’t simply enacting pandemic control measures that were discussed, debated, and agreed upon.  Instead, the consent of the governed has never been asked for or given, making this entirely uncharted territory.

It should be treated as such.  If the government is going where it hasn’t gone before — where in fact it never told us it might go — the burden of proof is on proponents of those policies to explain exactly how far they might take it.

In other words, it’s time for everyone to draw a line in the sand.

What can the government do and for how long?

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