Government Overreach Undermines Individual Liberty And Public Health
We are facing two simultaneous threats — the health threat imposed by the novel coronavirus and the threat to civil liberties imposed by overreaching governments
With the number of COVID-19 cases in the United States continuing to increase at a dramatic rate, well-intentioned state and local government officials have faced continuous pressure to respond to this public health emergency. Unfortunately, mounting pressure to “do something” has all too often manifested in government overreach that neither respects individual liberty nor best addresses public health needs. As this crisis continues to evolve, it has become increasingly clear that we are facing two simultaneous threats — the health threat imposed by the novel coronavirus and the threat to civil liberties imposed by overreaching governments. It is imperative that both threats be contained.
Of course, state and local governments should inform the public on steps that individuals should take to keep themselves and others safe during this time, such as remaining at home except for essential trips, practicing physical distancing, and wearing masks when outside the home. Public polling shows that an overwhelming majority of Americans are voluntarily following these guidelines. According to a poll conducted by Gallup between March 27 and March 29, 89% of Americans are avoiding mass transit, 83% are avoiding small gatherings with family and friends, and 78% are avoiding public places. Nationwide, travel to grocery retailers and pharmacies — essential businesses that have remained open throughout the crisis — has fallen by 22% compared to pre-pandemic levels.
Evidently, most Americans are willing to make sacrifices in the interest of protecting their own health and reducing the strain on the health care system. However, it is an abuse of power for governments to take overbearing actions that restrict individuals’ liberty but have a marginal effect on public health. Although many states have issued shelter-in-place orders with violators subject to potential fines or even jail time, there is no evidence that the threat of government punishment increases adherence to stay-at-home guidelines. In Massachusetts, for example, where governor Charlie Baker has issued a voluntary advisory rather than an order for residents to remain at home, aggregated cell phone location data shows that public compliance is higher than in the United States as a whole. Rather than deprive people of their liberty through either financial means (i.e. monetary fines) or physical means (i.e. imprisonment) for exercising free movement, governments ought to advise and trust individuals with these matters.
Even the best intentioned government actions yield unintended consequences and can ultimately be counterproductive to their noble objectives. Several states and localities throughout the country, for instance, have prohibited big-box retailers from offering the in-store sale of so-called “non-essential” items, including home and garden supplies, consumer electronics, games, and toys. Restricting customers’ ability to purchase these items alongside their groceries does nothing to minimize the spread of the virus. These restrictions do, however, make it more difficult for people to occupy and entertain themselves at home, which will likely lead to decreased compliance with sensible guidance to stay home. Likewise, one-size-fits-all orders limiting the number of people allowed inside stores, such as the statewide order issued by Michigan governor Gretchen Whitmer, can force customers to stand in long lines outside stores in violation of physical distancing guidelines. Businesses and communities, not state government officials, have the most complete knowledge of their area’s specific risks and are thus best positioned to implement public health precautions based on actual conditions.
Some recent actions taken by state governments during this emergency are not only overbearing but are outright violations of individuals’ constitutionally guaranteed rights. In Rhode Island, governor Gina Raimondo has instructed law enforcement officers to stop vehicles with out-of-state license plates and order anyone entering Rhode Island from another state to self-quarantine for 14 days. These traffic stops are blatantly unconstitutional. Under established Fourth Amendment case law, a police officer cannot stop a car and interrogate the driver without reasonable suspicion that the driver is committing, has committed, or is about to commit a crime. Having out-of-state license plates on one’s vehicle does not constitute reasonable suspicion of involvement in criminal activity.
In yet another instance of a constitutionally dubious response to this crisis, a Kentucky judge has ordered the use of ankle GPS monitors for individuals who have refused to self-quarantine after being exposed to the virus. The U.S. Supreme Court ruled in a 2015 case, Grady v. North Carolina, that ankle bracelet GPS monitoring is a “search” within the meaning of the Fourth Amendment and, as such, the use of such monitoring must be “reasonable.” There is a strong argument to be made that monitoring the location of individuals not convicted, or even accused, of a crime is an unreasonable overreach of government power and is unlikely to withstand constitutional scrutiny. It would behoove government officials to remember that Constitutional rights are not suspended during a public health emergency.
Government at all levels exists to secure the rights of the people. This is equally true in times of calm and in times of crisis. When government officials face pressure to overstep boundaries in the name of public health and safety, the public must demand that civil liberties be respected and communities and individuals be trusted to make risk-informed decisions. Otherwise, the insidious threat of overreaching government will in all likelihood persist for long after the public health threat has passed.