Which Lockdowns are Constitutional?
EVERY CONSTITUTIONAL RIGHT SHOULD HAVE EQUAL WEIGHT
by Eugene Kontorovich
THE GOVERNMENTAL RESPONSE TO THE COVID-19 epidemic has perhaps seen the most sweeping peacetime restrictions of constitutional rights in U.S. history. A wide array of constitutional rights have been intruded on by lockdowns, closures, quarantines, isolation measures and social distancing requirements.
The states’ measures have led to a wave of lawsuits and court rulings about their impact on constitutional rights, with the most high-profile ones involving prayer and abortion. However, the basic legitimacy of the government depriving millions of their basic liberties and livelihood has not been a large part of the debate. Instead, it has been about how these measures apply to certain particular, and highly politicized, rights.
Whatever the merits of the harsh measures imposed in response to COVID-19, such measures should be seen as either inherently problematic or tolerable, regardless of what closures and social distancing might mean for particular rights.
The Constitution reserves for states broad power to protect the health of its citizens. And the legal framework of constitutional rights presumes a standard situation, where the rights’ enjoyment does not harm others. States in epidemics have always quarantined or
