COVID-19 and Your Constitutional Rights

As federal, state, and local governments respond to the COVID-19 pandemic, citizens are being quarantined, governments are banning large gatherings of people, and international travel is being restricted. So far, domestic travel has not been restricted (except for those quarantined), but things are moving rapidly.

One consequence of New York State’s ban on gatherings larger than 500 people is that all Broadway theaters have shut down, because their seating capacities exceed 500. Meanwhile, the First Amendment guarantees “the right of the people peaceably to assemble,” which raises the question about whether New York’s ban on large gatherings is unconstitutional.

I’m aware that a clause follows that statement of right saying “and to petition the government for redress of grievances,” so some will claim that performances of any kind are not protected—just petitions for redress of grievances. That’s a good argument, especially in light of some interpretations of the Second Amendment, which says “the right of the people to keep and bear arms shall not be infringed.” Some claim that this does not mean that people have the right to own guns.

The right to move freely within and among states also faces potential threats. Article IV, Section 2, says “The citizens of each state shall be entitled to the privileges and immunities of citizens in the several states,” but the federal government has often interpreted the commerce clause to apply to production and movement of goods within states, even when they are not sold.

Could the COVID-19 crisis lead to further restrictions in the ability of individuals to travel? After restricting foreign travel, President Trump has said he may restrict domestic travel. Should the government have such power? Does it violate people’s rights, to force those who have tested negative for the coronavirus into quarantine, especially when they are quarantined with others who are known carriers? The government is putting many quarantined people at additional risk of catching the virus.

My concerns are not so much with the short-run policies governments are designing to deal with the pandemic, but with the long-run consequences. I’m not questioning the constitutionality of government actions to contain the virus, although I think there are questions. I’ll leave those questions to constitutional scholars. I’m concerned about the longer-run impacts on personal freedom.

Robert Higgs, in his excellent book Crisis and Leviathan, documents how government power ratchets up during times of crisis, and after a crisis passes, never contracts to its pre-crisis level. As governments mandate policies to deal with the pandemic, a long-run consequence of the pandemic is likely to be a ratcheting up of government’s regulatory powers and a resulting compromise in individual liberty.

Randall G. Holcombe is a Research Fellow at the Independent Institute, the DeVoe Moore Professor of Economics at Florida State University, and author of the Independent Institute book Liberty in Peril: Democracy and Power in American History.
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