Is the Constitution a suicide pact?

By Jay Evensen Apr 22, 2020, 7:00am MDT

SALT LAKE CITY — Justice John Marshall Harlan was well-known in his time for dissenting in U.S. Supreme Court cases that restricted civil rights, such as the infamous Plessy vs. Ferguson decision that, for many years, established the notorious “separate but equal” doctrine allowing widespread racial segregation.

But he didn’t mince words in 1905 when he wrote in favor of letting states force everyone to be vaccinated against smallpox.

“Upon the principle of self-defense, of paramount necessity,” he wrote, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

The Constitution, in other words, is not a suicide pact. The liberties it guarantees are not immune to being carefully and temporarily set aside when an enemy, seen or unseen, threatens the nation.

In recent days, thousands of Americans have taken to the streets to protest stay-at-home orders and restrictions that have effectively closed restaurants, salons and just about any other retail business other than grocery stores.

In the Salt Lake City protest, which drew more than 1,000 people on Saturday, many of whom mingled close together without masks, the theme seemed to be constitutional rights. Eric Moutsos, organizer of the event, told the Deseret News he doesn’t want the Constitution “to be a casualty of the coronavirus.”

“You have the right to assemble,” he said. “That’s the very reason we have the First Amendment.”

Well … it’s one of five reasons, including the first enumerated freedom in that amendment, which is the right to freely exercise religion.

As Salt Lake County Mayor Jenny Wilson grimly reminded the Deseret News and KSL editorial boards Monday, Virginia pastor Gerald O. Glenn had defied warnings about COVID-19 and vowed to continue preaching “unless I’m in jail or the hospital.”

He made that statement in March in front of a few dozen worshippers, just before his state ordered everyone to stay home. Sadly, he died last Saturday after contracting the virus. His wife also has tested positive. The New York Times said the couple’s daughter now has posted to Facebook, “I just beg people to understand the severity and the seriousness of this, because people are saying it’s not just about us, it’s about everyone around us.”

COVID-19 is indeed about all of us. Your defiance may spread it to someone who eventually may spread it to me, because you may be an asymptomatic carrier.

Don’t misunderstand me. While I think many of Saturday’s protesters were reckless, I don’t think their concerns are nuts. COVID-19 has ruined a robust economy. Millions are now out of work. Even if this is only temporary for some, the bills that are piling up are not.

And yes, for many people this is leading to a sense of despair, and perhaps even depression. Protesters say this may lead to more casualties than the virus. Difficult as these problems are, there is no evidence for this. Meanwhile, deaths from COVID-19 are approaching 45,000 nationwide.

The choice is not ideal. We can remain isolated in our homes and suffer economically and emotionally while hoping to flatten the progress of infections, or we can open the economy too soon and risk a blossoming of new cases and deaths.

But in reality, that choice, even though between two horrible things, is easy. Life takes precedence.

Wilson said she may advise the sheriff’s office to “take a little stronger presence” at future protests or large gatherings. She has no direct power over the sheriff, who is independently elected. She also rightly worries about the negative consequences of a crackdown, which could outweigh any benefits.

Meanwhile, she laments how difficult it is to educate the public with solid information in an age when competing voices are everywhere.

As Brookings Institution fellow Constanze Stelzenmüller wrote this week, leaders all over the free world are grappling with how far to go. “What is the proper use of emergency powers? How can a proliferating executive be contained? How can individual freedoms be protected against a state with new coercive appetites?”

Justice Harlan probably would say Salt Lake County has the right to crack down on future protests and arrest people.

“The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint,” he wrote in that 1905 case.

But in practicality, force doesn’t work too well, and social distancing is almost impossible in jail.

The best solution for any free society is for an educated populace to agree to cooperate and, if necessary, suffer temporary hardship for the good of all.