I don’t doubt for a moment that social distancing, hand-washing and covering one’s mouth and nose while out in a crowd diminish the risk of my acquiring or spreading the coronavirus.
It’s good medical advice, offered with good intentions by medical professionals who know their stuff. I intend to follow the advice, as does my wife.
But neither do I see anything in the law, at either the state or federal law, that gives to public-health professionals the power to legislate, even in an emergency. And I am hard-pressed to find in either the state or federal constitutions the power to suspend civil liberties in the name of public health.
So what to do when I see someone on the street who refuses to follow medical advice? Is coughing in public now a crime? Can vendors be required to serve those who won’t play by the new public-health imperatives? What about the right to protest against the requirements, even to advance theories that the virus is a hoax, or the result of an attack by unfriendly aliens?
The fact is that medical expertise, and this includes life-saving medical expertise, is profoundly anti-democratic. It presents in a new form a difficulty with which lawyers have long since grappled: the counter-majoritarian difficulty.
We’ve tried something novel in this country for the past couple of centuries. We say that we are governed by consent of the governed. At both the state and federal level, rights are guaranteed to the people, and government cannot transgress those rights. Ever.
That’s the theory.
But the new coronavirus sweeping the land isn’t a libertarian.
Consider the problem of deciding just what the law does and does not prohibit. That is often a matter of interpretation. The federal constitution may prohibit “unreasonable” searches and seizures, but who decides what is reasonable?
Under the separation of powers doctrine, government is divided into three powers: To the Legislature is given the authority to make laws; the Executive branch has the authority to administer those laws; the Judiciary is left with the task of deciding whether the law has been followed in particular cases or controversies.
The theory is simplistic, of course. Judges decide what laws mean all the time. They are accused of legislating from the bench by parties who disagree with a judge’s reading of the law. The fact is, judges make law all the time, and they have made a mess of the federal constitution. There are now so many exceptions to the Fourth Amendment’s warrant requirement that the exception seems to have swallowed the rule. And Free Speech? It’s disappearing. Sometime soon the court will rule that hate speech is not protected speech. After this pandemic passes, I suspect that there will be efforts to limit the right oppose scientific conclusions as well. Judges will decide these issues; their decisions will spawn new rules.
Who elected judges? The refrain goes. They were appointed to serve as umpires, not participants in the game of governance. By what right do judges declare laws passed by the people’s representatives unconstitutional?
Hence, the counter-majoritarian difficulty and the thorny problem of judicial review.
But these problems pale in comparison to the current pandemic crisis.
Protests at various state capitols pose an interesting constitutional conundrum.
By what lawful authority do the governors of the various states shutter their economics? Doesn’t the First Amendment guarantee to the people freedom of religion? How can a parishioner be forbidden to go to services? And the wearing of masks? By what right does the government tell me to wear one?
I watched a televised interview with one governor asked how he squared a decision to stop religious groups from gathering. It was awkward. The governor couldn’t answer. It was as though the question never occurred to him.
In fact, there are no good answers just now, just conflicting imperatives. Medicine tells us what’s good for us; but the law imposes limits on what the government can compel us to do. We can reject a doctor’s advice; ask a smoker.
Distressingly, there has been little real debate about what limits the constitutions at both state and federal levels impose on the authority of governments to act in a public health emergency. It’s as though we’ve decided to punt on the constitutional questions, almost assuming it’s be better to ask for forgiveness later than permission now.
The problem is now we are building a body of precedent that will be readily available later, the next time someone decides to declare a public health emergency.
This is worrisome. Yes, you have the right to disbelieve science. Go ahead, call the pandemic a ploy by dark powers to enslave us. That’s your right. But in the exercise of that right, it is not at all clear you should have the ability to jeopardize the health of all by running amok, spreading contagions.
The stakes are high just now. They’ll get higher, and soon, as we grapple with cascading climate change. Get set for fundamental changes in the law.