America is closed for business.
Seeking to slow the spread of the coronavirus, a cluster of state and city governments have mandated that restaurants and bars not provide dine-in services. This number is only expected to grow in the coming days and weeks, likely extending across much of the country. These restrictions follow other efforts to combat the spread of the virus, including extensive limits on public gatherings and public school closures.
Are these restrictions compatible with our founding values?
Well, the rule of law forms a fundamental component of our republic. Most important, we look to our Constitution as the framework within which our governments, local, state, and national, must operate.
Naturally, then, some have questioned the constitutional basis for these abnormal government actions. A straightforward answer exists for closing down public schools. As public institutions, states possess extensive authority over them, including schedules. Their normal priority should be the quality of education provided. But, as snow days exemplify, health and safety concerns sometimes take precedence over in-class instruction.
More constitutionally questionable are those measures limiting private gatherings and businesses.
As nonpublic entities, one could reasonably argue that they possess the liberty and property rights to conduct business as they see fit. Moreover, one might assume that potential patrons possess the same rights over their persons and bank accounts to determine if they wish to frequent these businesses.
However, such thinking misunderstands both the principle of individual rights and the legal doctrine proceeding from them. Regarding the principle, the Declaration of Independence does assert as “unalienable” every person’s rights to life, liberty, and the pursuit of happiness. The Constitution also affirms against both state and national governments the rights to life, to liberty, and to property. No government rightly can infringe them. Instead, the government exists, as the Declaration says, “to secure these rights.”
But securing rights involves government protection, not just restraint.
Your neighbors may violate your rights just as governments might. This fact shows that you lack the right to violate others’ rights and that government exists to stop you if you try. These violations include infringing on the life, liberty, and even property of others by means of spreading the coronavirus. Disease can kill you. It can undermine the quality of that life and thus your liberty. Moreover, it can cause serious, even debilitating financial harm. Such results often are unintended, but government’s securing of rights involves outcomes, not just intentions.
A legal doctrine older than our country exists supporting this principle. For states, many have called it their “police power.” This phrase serves as a bit of a catchall for those regulations made by states (and their local governments) to protect individuals from harm.
William Blackstone, an influential English jurist, described the police power as addressing offenses “such as are against the public health of the nation.” A long-standing, extensive line of American legal precedent has included protections for “health” as well as for “safety” in police power’s definition as well. Originating in the very purpose of government, these powers fall within those reserved to the states through the 10th Amendment. Requirements that restaurants follow health codes, as well as mandates that medical professionals obtain licenses, all draw on these powers.
The same reasoning justifies the current closures. State and local governments do so to protect the health and safety of individuals. Unchecked, the coronavirus threatens many individuals’ lives, their liberty, and their property. Government exists to address these kinds of threats.
Of course, limits should exist on states’ police powers. Otherwise, the government could slip from protector to oppressor. Those limits should look back to the principle police powers seek to realize: the guarding of individual rights. The degree of regulation may vary, depending on the extent of the problem. Times of emergency like now call for more than times of relative normalcy.
America is closed for business. For now. But we should not call it government oppression. We should see its purpose.
Adam Carrington is the assistant professor of politics at Hillsdale College.
