March 23, 2020 12:58PM

The Constitutional Police Power, In And After An Emergency

The framers of American government were only too well aware of epidemics as a danger to human life (here’s a list of more than 30 such outbreaks that occurred between 1763 and 1783; Alexander Hamilton and his wife Elizabeth, after both contracting yellow fever and surviving, then underwent quarantine). And American constitutional law has from the outset recognized and countenanced a “police power” in state government during true emergencies to intercept the sorts of otherwise harmless movements and actions that can turn well‐​meaning individuals into vectors of physical harm to follow citizens. At the same time, as they also knew, freedom would count for little were these emergency powers to set the measure for what government can do to citizens in circumstances short of that dire urgency.

I’m grateful to Ingrid Jacques of the Detroit News for quoting me in her column on this subject yesterday:

“’We have no collective memory of going through this kind of thing,’ says Walter Olson, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies. ‘It’s an invasion of rights we normally wouldn’t let the government get away with.’

“We’re all getting a crash course on what exactly the government can do in times of crisis. It turns out, it’s a lot….

“… Once the virus subsides, limited‐​government champions should watch whether all the regulations in effect during the threat go away, too.

“’The government must put away these dangerous weapons once the emergency is over,’ says Olson.”

For a sense of the sweeping powers governments sometimes assert in the name of quarantine, isolation and lockdown—definitely not meant as an endorsement—check this New York Times account. (It at least quotes a former NSC official who says “The American way is to look for better outcomes through a voluntary system.”)

Because courts applying constitutional law tend to treat government power as at its legitimate zenith during a “hot” emergency, and (this is nothing new) grant maximum short‐​term deference to the authorities at such times, ordinarily robust constitutional rights bend at least until the immediate threat to life has passed.

Freedom to assemble and freedom to worship are central to the First Amendment, yet courts have upheld and would uphold bans on religious and political assemblies in times of epidemic. Second Amendment rights that courts would ordinarily enforce, such as to operate a gun store or get processing for a required permit, may also be suspended without a short‐​term judicial remedy. Indeed, the judicial remedy needed to enforce any right may fail if the courts are closed owing to an epidemic.

True emergencies do not last. When this is over, as it will be, both the courts’ vigilance and ours must be directed toward making sure the government promptly and fully relinquishes whatever emergency powers it has flexed. We will face a body of opinion intent on pressing that exact advantage, as in this Chicago Sun‐​Times column from Friday:

If we can fight a war against an enemy we can’t see or touch, we certainly could use draconian measures to fight the gun violence in our neighborhoods as well.

Watch out for this kind of thinking. We’re going to hear a lot more of it.