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A civil liberties pandemic

Where is the debate about the toll being taken on Americans’ freedom and constitutional rights?

Gov. Charlie Baker announced on Wednesday that schools would be closed statewide until May 4 to prevent the spread of COVID-19.Sam Doran/Pool

Our health care system will eventually recover from the strain of the coronavirus pandemic. Our economy will recover too, notwithstanding the beating it is taking now.

Will our civil liberties recover?

Countless Americans are rightly alarmed by COVID-19 and the threat it poses to public health. Tens of millions are stunned by the abrupt wreckage of their businesses, livelihoods, and financial plans. An important debate is underway about how much economic pain can be justified by the need to suppress the infection. But where is the debate about the toll being taken on Americans’ freedom and constitutional liberties by the unprecedented strictures that have been imposed to keep people apart?


Extraordinary threats often call for extraordinary measures. Under the Constitution, government officials, especially at the state and local level, have considerable latitude to protect public health. In the landmark 1905 case of Jacobson v. Massachusetts, the US Supreme Court ruled that states could compel residents to get vaccinated against smallpox, overriding objections from some who resented the temporary infringement on their personal liberty.

But are we sure that all the infringements in the current crisis will remain temporary?

Around the world, rulers are taking advantage of the pandemic to enlarge their authority, historian and journalist Anne Applebaum warns in an essay in The Atlantic. They’re not only doing so in authoritarian countries, but even in liberal democracies like Israel, where the government has ordered a round-the-clock curfew and deployed anti-terrorist technology to track down people suspected of violating the coronavirus restrictions. Or like Norway, where anyone caught violating isolation rules can be fined $2,000 or jailed for 15 days. Or like the United Kingdom, where London Mayor Sadiq Khan unabashedly announces that “liberties and human rights need to be changed, curtailed, infringed — use whatever word you want.”


The willing self-curtailment of human rights might seem unthinkable in a democratic culture. But in times of panic people “go along with measures that they believe, rightly or wrongly, will save them — even if that means a loss of freedom,” writes Applebaum. “Such measures have been popular in the past. . . . They will be popular now too.”

I’m not sure I would call the unsettling restrictions that have been imposed on Americans in the last two weeks popular. But they have been vigorously endorsed and defended — in some cases with considerable vehemence. Understandably, most Americans have been far too consumed with the health and economic impacts of the pandemic to be fretting about the civil liberties implications.

Will that change if the government goes even further?

Politico reported last weekend that the Justice Department is asking Congress for the ability to petition judges “to detain people indefinitely without trial during emergencies.” That would wipe out the right of habeas corpus — the essential constitutional guarantee that anyone who has been arrested has the right to challenge the legality of his arrest in court. It would mean, explained Norman Reimer of the National Association of Criminal Defense Lawyers, that “you could be arrested and never brought before a judge until they decide that the emergency . . . is over.” The Justice Department also wants judges to have the authority in an emergency to halt all court proceedings at any point.


These are horrendous proposals, but opposition to them has been muted at best. Nor is the Trump administration alone in believing America should dispense with civil liberties if that’s what fighting COVID-19 requires. Law professor Michael Dorf, a noted progressive commentator, has called for a “national lockdown” in the United States, with habeas corpus suspended for the duration.

To repeat: This extraordinary menace may well require an extraordinary response. Yet a month ago, could anyone have imagined that we would see the complete cessation of all church and synagogue worship in the United States? Or a total halt to citizens’ First Amendment right “peaceably to assemble and to petition the government”? Or the wholesale shutdown of entire industries and cultural events nationwide by unilateral decree? By and large, Americans have taken these restraints in stride.

Maybe they shouldn’t be so sanguine.

It is daunting to realize just how much absolute authority is entrusted to governors and the president once an emergency has been declared. In Massachusetts, Governor Charlie Baker is empowered by state law to “exercise any and all authority over persons and property” in whatever way he deems necessary to cope with the crisis. The law allows him to do virtually anything — from banning weddings to prohibiting travel to commandeering utilities to closing schools to throwing innumerable people out of work by declaring their jobs nonessential. Legislative approval is not required. Nor is a public vote. Nor is there any fixed date on which those godlike powers must be surrendered.


Similarly sweeping emergency powers are available to governors in other states. Many similar powers are available to the president.

To be sure, these laws have been on the books for many years. But never have those powers been invoked so extensively across the entire country. Perhaps the governors and the president can be trusted to relinquish their authority to rule by decree the moment the end of the crisis is in sight. But power can be very addicting. Government officials are not always in a hurry to give it back. Especially when it was surrendered so unquestioningly in the first place.

This epidemic may leave the economy in tatters, but economies grow back. Let us hope it doesn’t shred our civil liberties and democratic norms before it runs its course. Those aren’t so easy to regrow.

Jeff Jacoby can be reached at jeff.jacoby@globe.com. Follow him on Twitter @jeff_jacoby. To subscribe to Arguable, his weekly newsletter, go to bitly.com/Arguable.

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