May 22, 2020 – Absolute Rights During a Pandemic
We’re about two months in to the restrictions put in place in response to the pandemic. People have been pretty much been told to stay home. If you have to go out then wear a mask. Businesses have closed down. School years have ended early. Sports seasons have been disrupted and delayed.
The arguments have started for opening things back up.
Some feel that the economic pain is worse than the potential of spreading COVID-19. They point to indicators that say we’re going into recession. Remember 2008? This will be worse. It already is.
Some argue that we should let people get infected and build “herd immunity.” They point to Sweden as the poster child for this approach. But Sweden’s own state epidemiologist Dr. Anders Tegnell is on the record as saying their approach won’t work everywhere and they’re counting on the people who are at greatest risk (older folks and those with health concerns) staying home to protect themselves.
Then there are those who argue that their constitutional rights are being violated by being ordered to stay home, wear a mask, or keep their business closed. There’s a long history of governments in the US imposing restrictions on people during health crises. At some points the police would show up at the homes of infected people and nail signs by their door that labeled the people inside as infectious and warned people to stay away.
The Supreme Court weighed in on this question of individual rights during a health emergency pretty decisively in Jacobson v. Massachusetts. The safety of the community takes presidency over the individual.
The Constitution does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. A community has the right to protect itself against an epidemic and may, at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.Supreme Court Justice Harlan (Jacobson v. Massachusetts 7-2 majority opinion)