You may have noticed that those who protest against the closure of schools, shops and other public places during the pandemic often brandish signs claiming their “constitutional rights” are being violated.
Even the mayor of Kaysville, Utah, was reluctant to prevent a concert from happening (since moved to a new venue) on the grounds that she did not want to violate anybody’s “constitutional rights.” So, evidently the idea has gained currency that Americans have unrestricted rights to attend concerts, go to movies, or shop at malls, and that any directives from public officials to keep those places closed should be blocked by the courts on constitutional grounds.
This is nonsense. Americans’ constitutional rights are set forth in the Bill of Rights itself, as well as later constitutional amendments as interpreted by the federal courts. In addition, we have rights granted by state constitutions, but for the most part these reiterate or embellish the ones listed in the U.S. Constitution: freedom of religion, of speech, of the press, of assembly, the right to vote, etc. In short, constitutional rights are those designed to ensure that we will continue to live under a democratic form of government. They are “grand principles:” the bedrock on which rests the edifice of ordinary day-to-day government.
Our Constitution does not list mall shopping and concert attendance as constitutional rights, and for good reason. Those are matters of “commerce” and, even as far back as colonial times, they have always been subject to government regulation when there is a legitimate public purpose at stake. Protecting public health long has counted as one of those purposes; hence, we have a Food and Drug Administration, a CDC, local health inspectors for restaurants, and other such forms of public oversight and control.
Just because people would like to attend a concert or crowd into a public pool does not mean they have a right to do so — much less a constitutional right — if their actions might cause other people to become ill and maybe even die from an infectious disease.
The one case that does involve constitutional rights is the extension of “lockdowns” to include church services, since freedom of religion is indeed fundamental to our Constitution. But here no state or county has contemplated closing churches forever; the intention always has been to reopen them as soon as health authorities could be sure that infected churchgoers would not spread the disease to many others, as indeed has occurred at some American congregations.
None of this implies that “lockdowns” should continue indefinitely. Public health and safety certainly must be balanced against people’s need to earn a living. But that process of weighing and balancing is a far cry from the blanket claims that we have a constitutional right to do whatever we please, even if it jeopardizes the health of hundreds of other people.
Remember: the phrase “constitutional rights” is the heavy artillery of political disputes; it should be rolled out only in extreme cases where Americans are threatened with the loss of truly fundamental rights, such as those enumerated in the First Amendment. They should not be invoked when a local government temporarily closes down a few bars or gyms to protect public health. So, let’s support a phased opening of the economy for valid reasons: scientific data on the containment of COVID-19 and the recognition that people are in dire financial straits and really do need to get back to work as soon as possible.
Hinchman writes from Moab.