Our state and country have been, understandably, so focused on the health emergency that it is easy to lose sight of one important fact. Our fundamental rights and freedoms not only do not disappear during a crisis, they actually come to the fore in a more concrete and conspicuous way than in normal times. In fact, our rights are most important in times like these.
There is no doubt that the virus deserves–and has been given–our country’s full medical, health and safety attention. However, perhaps for the first time in our nation’s history, we have quarantined and largely immobilized healthy people. The fact is that our citizens, in huge numbers, have lost their liberty—their religious freedom, their freedom of expressive activity – including freedom of association, freedom of movement and mobility, and freedom to peacefully assemble and petition their government for a redress of grievances (i.e. including the small demonstrations we are beginning to see across the country). Further, we may also be losing our right to be free from “unreasonable searches and seizures” as well: for example, if law enforcement or other government entity comes, uninvited and without a warrant and probable cause, onto private property, or, if government undertakes covert surveillance of us through our cell phones to see, for example, whether we are abiding by the stay at home orders, these trespasses amount to an erosion of private property rights and an invasion of privacy. Broadly speaking, such government conduct contravenes the 5th and 14th Amendment guarantees that we cannot be denied our rights to life, liberty and property without due process of law.
For these reasons, our current status cannot exist indefinitely. Our U.S. Constitution trumps state law and state emergency/crisis orders. There is no exception or exemption in the Constitution for a health crisis. It also doesn’t yield to any other body of law. It is the supreme and final authority and, while it is designed to insure that the states and the people retain the majority of power in our free society, the specific enumerated rights that are exclusively the province of the Constitution include protecting from government suppression the freedoms of press, free exercise of religion, expressive activities, protection of private property rights and privacy, and numerous others.
We will, undoubtedly, continue to do everything we possibly can to protect those who suffer from, or are most susceptible to, the virus. However, that is not the only consideration in this critical balancing of interests. The large majority of 330 million Americans are having their lives, including their jobs–and, thereby, their families–damaged if not destroyed. This cannot be allowed to happen. While the U.S. Supreme Court has recognized a nuanced need to allow government to modify the behavior of citizens during a crisis, these allowances are supposed to present a compelling government interest and be narrow, specific and limited; no more extensive than the threat reasonably demands. Hence, while government should move with greater urgency and efficiency to exercise the powers it legitimately possesses, it may not assume greater power simply because we are in a crisis. If we don’t see these rights protected by our government, the small demonstrations across the country we are beginning to witness will become much louder, larger and more widespread.