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When ‘Unalienable Rights’ Meets National Crisis, Who Wins?

Empty Creighton campusCreighton University’s silent campus gives eerie illustration to a dilemma confronting Americans from coast to coast: How can we, in time of national crisis, balance the free exercise of individual liberties, won over centuries, with the need to preserve public safety? How, indeed, did we do so in the past? And why did we do so?

As made clear in a series of messages from Creighton administrators and leaders, the current campus shutdown is a willing though painful contribution to the cause of taming the COVID-19 pandemic.

The Rev. Daniel Hendrickson, SJ, PhD, president of Creighton University, captured the high cost in a message to the Creighton community released on March 23:

“I miss the buzz of activity on our campus mall, the sights of teaching and learning in our classrooms and laboratories, the sounds of laughter and camaraderie enlivening our residence halls, and the spirit and enthusiasm of our students, faculty, and staff filling the spaces and places that we hold dear,” he said.

It remains the University’s intention to completely reopen campus for the fall semester, if the reopening can be accomplished in accordance with governmental direction.

Across the nation, however, protests have arisen among the less patient as extended societal shutdown threatens livelihoods and imposes restrictions on the free exercise of religion, not to mention walks in the park or strolls on the beach.

How, then, should we live, during a pandemic that has been compared by the president of the United States to warfare? We decided to ask some of Creighton’s experts in the fields of law, medicine and history.

Their responses came just days after U.S. Attorney General William Barr issued an April 27 memo to U.S. attorneys across the nation ordering them to monitor states and localities for regulations that might offend the U.S. Constitution.

“[Even] in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers,” Barr wrote.

“[The] constitution also forbids, in certain circumstances, discrimination against disfavored speech and undue interference with the national economy.”

Barr’s memo, notably, conceded that “reasonable and temporary restrictions” might be imposed without offense, and that view finds favor with Thomas Svolos, MD, professor of psychiatry at the Creighton School of Medicine. Absolute freedom, he said, whether or not a national crisis exists, belongs only as a function of madness.

“Every individual has a connection to society, and civilization demands some sacrifices of freedom to authority, generally in the name of the common good or some other ideal,” he says. “The idea that we exist independent of the other people around us is kind of a popular notion, but absolute freedom — complete, absolute freedom — is found only in psychosis or, historically, in the absolute monarchs, who would not submit to the State or the law because, as Louis XIV put it, ‘The State, it is me.’”

Svolos is struck by the contrast between how the COVID-19 epidemic has been handled in the United States, where he says political tribalism has emerged, and how it has been handled in Australia and New Zealand, where political affiliation was subordinated to a common effort to subdue the virus.

“If you look at those countries, it's very interesting,” he says. “In the case of New Zealand there is an extremely progressive prime minister, and in the case of Australia a fairly conservative prime minister. They are very much on opposite ends of the spectrum, but they collaborated to develop strategies for the common good of their countries.

“In the case of New Zealand the virus has been virtually eradicated from the island. It's remarkable.”

Michael Kelly, JD, LLM, professor at the Creighton University School of Law and holder of the Senator Allen A. Sekt Endowed Chair in Law, agrees that government has the authority to temporarily restrict civil liberties in emergency situations. These inherent police powers, he says, have long been recognized by the courts and were granted to governing authorities by the people through constitutional provisions established via the democratic process. As a precaution, they are overseen by judges, who are selected by elected representatives and who rule on what measures are reasonable.

“Emergencies can take many forms,” Kelly says. “Mandatory evacuations during Hurricane Katrina are on the natural disaster side, mass incarceration of Japanese-Americans during World War II are on the war side, stay-at-home orders during the COVID-19 pandemic are on the public health side.

“The exercise of some of these powers is more palatable than others, and the courts will determine that, just as they did in the Endo case essentially shutting down the shameful Japanese internment camps. But it takes time for that process to work.”

Regulating religious liberty is a thornier problem, Kelly says, because the free practice of religion is specifically guaranteed in the First Amendment to the U.S. Constitution, but even here “common sense rules come into play.”

“While you have a protected religious exercise right and a protected assembly right, you cannot exercise those in such a way as to put others in danger,” he says. “Conveying an incurable virus with a mortality like that demonstrated by COVID-19 certainly puts others in danger.”

The current COVID-19 pandemic is certainly not the first time the United States has confronted the task of balancing civil liberties against the need to preserve public safety.

Heather Fryer, PhD, the Fr. Henry W. Casper SJ Professor in History and Director of the American Studies Program, says previous national crises saw the American people and the federal government forge what she calls “national emergency social contracts” in which Americans agreed to limit traditional freedoms temporarily on the understanding that the government would fully restore them once the crisis ended.

These “contracts,” she said, are easier to write when the enemy is as clear as bombs falling on ships in Hawaii and the offending national capital exists on a map.

But pandemics are a different proposition. They are, as President Donald Trump has said, “an invisible enemy,” and require a more sophisticated social contract. The Spanish Flu epidemic of 1918-1919 is instructive, Fryer says.

“After the first wave of influenza in autumn 1918 it looked to the naked eye as though the ‘war’ had been won,” she says. “Americans knew that when the guns went silent on the battlefield, after all, the men came out of the trenches and sailed home to normalcy.”

With the flu apparently under control, warnings that the virus had subsided but had not disappeared carried little weight with a public tired of restrictive laws and wary also of succumbing to the kind of autocracy they had just defeated in World War I.

“To them, it was time to recalibrate and restore the freedom-security equilibrium,” Fryer says. “It was only when the second wave brought a renewed death toll that the value of a national emergency social contract became clear. But by then, it was too late.”

Fryer’s “social contract” finds a cousin in the “social compacts” that Kelly says are the essence not just of the U.S. Constitution but also of the 50 state constitutions.

“Our constitutions are social compacts – we agree as citizens to abide by them and follow the laws issued under them, so yes, we have a legal responsibility to accept the restrictions our duly elected officials temporarily place on us for our own well-being,” Kelly says. “Whether it’s earthquakes, floods, fires, or incurable pandemics, we want our governments to protect us just as they do when they deploy troops to fight on our behalf abroad. The restrictions we are now facing are the current form of protection designed to face the current crisis.”

And if we don’t like it?

“If enough people don’t like this approach, they can of course replace that government with another one at the next election or challenge that government in the court system,” Kelly says.

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