Periscope THE DEBATE
26 NEWSWEEK.COM
of the reality that different rights
have vastly different political valences.
At least in our times, constitutional
rights come in different colors.
Liberals care about constitutional
rights when it comes to abortions and
inmates; conservatives will generally
say that those rights, or particular
extensions and penumbras of them,
are not rights at all. On the other
hand, conservatives greatly value the
protection of gun rights and the reli-
gious rights of the First Amendment—
again, in formulations that liberals
might broadly see as mistaken. Like
coloring states red or blue, this is, of
course, a massive oversimplification,
but it captures something important.
As the Supreme Court has said,
there is no constitutional hierarchy
of rights. There is no priority between
buying a gun, saying a prayer, having
an abortion and being able merely
to walk out into the street. All are
constitutional values so long as they
do not endanger others; and the cen-
tral assumption of the coronavirus
measures put in place is that every-
one might pose a covert, exponen-
tially compounding danger to the
public health. (The Supreme Court
has called abortion a “fundamen-
tal” right, but by that it meant it was
important enough to warrant consti-
tutional protection despite not being
expressly mentioned in the text. But
having risen to the pantheon of rights,
it takes an equal place among them.)
But perhaps the public health
measures burden different rights
differently. Abortion rights advo-
cates argued in court that bans on
all non-emergency surgical treat-
ments deny women the substance
of the right—at least for the subset
of women close to the gestational
stage where abortions are forbidden.
Conversely, supporters of gun rights
claim that closing gun shops entirely
excludes from Second Amendment
protection some subset of people—
and at a time it may matter most.
Those who challenge closures of
places of worship claim the inability
to come together in prayer, subject to
distancing guidelines, permanently
deprives the faithful of an opportu-
nity to draw close to or solicit God at
a crucial moment.
Given the varying political and
cultural valences of these rights,
there is no objective way to compare
burdens. Some might say the burden
on restricting particular modes of
communal prayer is zero, because
prayer is ineffectual, and religion
merely a private pastime to which the
Constitution shows a quaint solic-
itude. Others would say the burden
of delaying abortions is zero, because
the restriction actually saves a life.
But gainsaying the subjective burden
in effect undermines the idea of its
constitutional protection.
Nothing could more undermine
COVID-19 response than to put it in
the crosshairs of the constitutionalculture war. At the same time, there
should indeed be some way for cit-
izens to push back against public
health measures that go too far.
Let me propose a shortcut: Harness
the happy circumstance of politically
opposing constitutional rights. The
most dangerous situation is if those
solicitous of one particular kind of
liberty are able to think they can save
theirs amid a more general restric-
tion. But if the gun folks and the
abortion folks and the prayer folks
and the press folks and the prison
folks all understood that their hard-
won rights are all at stake in broad
closure orders, such measures will
only be used in the clearest necessity.
We need a simple rule: Either such
unusually broad measures must
make exceptions for all particular
constitutional rights—or they need
make no exceptions.Ơ Eugene Kontrovich is professor of
law at Antonin Scalia Law School. The
views expressed in this article are the
writer’s own.