Individual liberty during a crisis – a salute to federalism

Two recent crises have tested the mettle of our nation, revealing much about our citizens and government. The emergence of the coronavirus challenged our public health response. Experts recommended measures to slow transmission and avoid overwhelming our critical care capacity. Government officials deftly responded with restrictions that also disrupted economic and social life, including cherished liberties.

Another crisis emerged from the protest movement centered on concerns about racial bias from police. Violence associated with these protests has caused death, injury, and destruction in communities already suffering from coronavirus restrictions. But protestors and government responses to their actions are also raising important questions that cause us to reflect upon the health of our civil society.

In both crises, state and local governments exercised primary responsibility. Our constitutional system embraces federalism, which ensures that states retain “police powers” for the purposes of protecting the health, safety, and morals of the people. Constitutional limits on those powers entail a balance of individual rights against other social goods. As the Supreme Court explained in Jacobson v. Massachusetts (1905), “the rights of the individual … may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

States possess wide discretion in choosing measures to thwart disease, and political accountability is the primary constraint on those measures. Public officials routinely claim their policies are rooted in science, but political preferences often dominate. Notably, religious gatherings have been restricted as “nonessential” activities in order to inhibit contagion. Some churches and synagogues have challenged those restrictions as unfairly targeting religion. Public-interest law firms have done important work in advancing their claims against officials who abuse their powers, with mixed success.

Public officials have attempted to constrain the impact of violence associated with the protest movement, but they have willingly subsumed restrictions on public gatherings to facilitate the airing of grievances. Ironically, the protest movement has unwittingly raised other important questions apart from its questions about racial injustice. Is a protest assembly more “essential” than attending church? Is identity politics a new and preferred form of religion? Does this (quasi) religion embrace mercy and forgiveness, or just condemnation and smiting? Are protestors more committed than traditional religious people content to stay home from church?

The protest movement also reveals the selective nature of the claimed preference for scientific truth among the political class. Available data casts doubt on the movement’s claim that police routinely and unfairly target minority suspects with violence. Nevertheless, political leaders routinely embrace this false narrative, which may mollify some protestors but does nothing to solve genuine problems in our communities including disparate impacts from crime. Unfairly casting aspersion on police likely increases violent targeting against police and reduces police effectiveness, with the greatest adverse impacts likely felt in minority communities, further damaging the health of our civic bonds. We can do better.

Our federal system allows local responses that reflect varying conditions and values. Citizens choose their local government and live with the results – for better or worse. They can hold their leaders accountable in the next election, and we can all watch and learn from these different outcomes.

Our government reflects the reality of our fallenness, and the state of our spiritual commitments. Growing a culture of ordered liberty that fosters human thriving requires commitment from vigilant citizens who believe that the common good must be informed by deeper enduring truths, and who are willing to act on those beliefs. Perhaps more than ever, the content of the common good needs nurturing – in some places more than others.

EDWARD A. MORSE is a law professor and member of the board of directors of the Thomas More Society (ThomasMoreSociety.org), a national public interest law firm based in Chicago and Omaha devoted to restoring respect in law for life, the family, and religious liberty