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“The states’ measures
have led to a wave
of lawsuits and
court rulings.”Yet COVID-19 constitutional chal-
lenges are not largely about the gen-
eral massive restriction of liberty.
Instead, they have been about seeking
exceptions for communal prayer, or
for abortion facilities. (The unusual
exception is last month’s Wisconsin
Supreme Court ruling, which con-
cluded the cursory process behind
the governor’s closure orders was
inadequate, but did not question the
basic ability to take such measures.)
Yet if such broad restrictions are
indeed warranted, courts should not
be sympathetic to special pleading for
particular rights—especially becausestandard situation, where the rights’
enjoyment does not harm others.
States in epidemics have always quar-
antined or isolated those who are ill
or have been exposed to a contagion.
But the COVID-19 lockdowns go much
further, restricting the freedoms of
those who pose no evident danger—a
response to the long incubation
period and significant incidence of
asymptomatic transmission.
These lockdown orders are an
inherently blunt tool—or, in con-
stitutional law parlance, “over-
broad.” Yet in the name of public
safety, Americans largely agreed that
the Constitution must tolerate the
otherwise intolerable—the broad
restriction of basic liberty. Consti-
tutional liberty is not just about
abortions and guns. It also has some-
thing to do with being free—free to
meet a friend, free to put food on
one’s table and so on.O SAY CAN
YOU SEE?
Protesters in
Rancho Cucamonga,
California,showing
their displeasure
with a state stay-at-
home order this May.WA
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