The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Why I'm Not (Yet?) Much Worried About the Civil Liberties Restrictions Flowing from the Coronavirus Response
The restrictions are less dangerous precisely because they are so broad and onerous.
The coronavirus epidemic has led to major restrictions on our freedom to assemble, on our right to gather for religious worship, on freedom to operate one's business, and even on ordinary freedom of movement. These are indubitably serious restrictions on civil liberties; but, as Ed Richards and Keith Whittington have noted, American law and practice has long seen such extraordinary (and transitory) threats to life as justifying extraordinary (and temporary) constraints. And indeed we have seen past quarantines, which have indeed been temporary. (The clearest permanent and serious restraint on liberty has been mandatory immunization, but I think on balance that has proved to be a justifiable restraint.)
Vigilance is always a good idea when it comes to liberty, especially in extraordinary times; but vigilance is also a good idea when it comes to protecting our and our fellow citizens' lives. I appreciate Benjamin Franklin's line that, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety" (though the historical background to it is interesting and complicated). But one might equally say that "Those who would give up essential Safety, to purchase a little temporary Liberty, deserve neither Liberty nor Safety."
It's all about what's "essential" and what's "a little," of course; but such tradeoffs are a necessary part of life, and here the tradeoff seems to me—though in the face of immense uncertainty, and therefore immense risk of error—to cut in favor of certain kinds of restrictions. That's why our blog subtitle says we are "Often libertarian," though I think that even many thoroughgoing libertarians realize that a strong presumption of liberty from government restriction can't equate to a categorical rule.
Now I think it's also very important to be concerned about what effect restrictions might have on the future (see my Mechanisms of the Slippery Slope article). But here the restrictions have the virtues of their vices: Precisely because they are so broad and so onerous, it seems very unlikely that people (in government or out) will want to see their massive economic and personal costs extended any longer than necessary.
The matter might be different if the restrictions were imposed on small and disliked groups. I'm reminded of Lincoln's argument defending military arrests of certain critics of the Civil War:
Nor am I able to appreciate the danger … that the American people will by means of military arrests during the rebellion lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and habeas corpus throughout the indefinite peaceable future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics [that is to say, substances that induce vomiting] during temporary illness as to persist in feeding upon them during the remainder of his healthful life.
On one hand, Lincoln was right that, after the end of the Civil War (and of military Reconstruction in the South), free speech in America continued for many decades, largely unimpeded by the legacy of wartime suppression. (There were some restrictions that we would view as improper today, but on balance speech was quite free, and probably freer than before the war.) To the extent that onerous restrictions were eventually imposed during and after World War I (and to some extent not long before, in response to anarchist violence), they probably would have been largely the same regardless of what Lincoln had done half a century before. On the other hand, precisely because military arrests and restrictions on anti-war speech target a small group, the public at large might well retain an appetite for such restrictions in the future—and is especially likely to misjudge the current costs and benefits of the restrictions as well.
Yet the costs here are being borne by most Americans, whether directly or indirectly; and even though no costs are ever spread equally, they are spread so broadly that Lincoln's insight seems especially apt. The restrictions we're facing are bitter pills, but their very bitterness offers a good deal of assurance that we won't, in the long term, keep consuming them when there is no real danger.