The COVID-19 outbreak has already taken lives, disrupted families and communities, and inflicted significant damage on our economy. Will it also inflict significant damage on the core institutions of our free society?
It need not. Indeed, I think many of our institutions are holding up surprisingly well. I see hospitals and other medical providers doing stressful and sometimes dangerous jobs with skill and grace. I see charities and community groups mobilizing, families pulling together, neighbors helping neighbors. I see businesses struggling to make good choices among horrible options — trying to deliver necessary goods and services and keep their workers employed while also coping with public-health mandates and declining revenues.
As for government, I see many public officials working tirelessly to gather information, communicate it effectively, eliminate bottlenecks, expand testing, and protect the public without imposing unbearable costs.
However, I also see public officials taking advantage of the situation to score partisan points or to convert short-term panic into enough votes to enact permanent policies. And I see public officials who may be acting in good faith but who are letting their anxieties overwhelm their better judgment.
Our core institutions of self-government were never intended to apply only when convenient. They weren’t designed only for “normal” situations. We enjoy free speech in wartime as well as peacetime. We enjoy freedom of the press and assembly at stressful moments as well as relaxed moments. We enjoy the right to own and dispose of our own property during economic recessions as well as economic expansions.
None of these rights is, strictly speaking, absolute. Free speech in wartime doesn’t extend to the right to leak sensitive intelligence to the enemy. Freedom of assembly doesn’t extend to forming a mob to engage in vandalism, larceny, or violence. Our property rights do not shield us from paying taxes or obeying regulations that have been properly enacted by the proper authorities to ensure the delivery of true public goods — very much including public health, as we are seeing right now.
But under a federal system of republican government, there are rules that must be followed in such cases. Discarding them in the interest of speed or expedience is unwise and unconstitutional.
For example, in the first few weeks of the COVID-19 crisis, a number of media figures, activists, and state and local politicians demanded that the federal government “take over.” They wanted Washington to set uniform, nationwide closures and operating times for all public and private entities.
Washington has no such authority. Americans have never wanted Washington to have any such authority. States are the proper level of government to exercise such “police power,” which they can either employ themselves or extend to local governments as provided for by their respective state constitutions.
For the most part, I think America’s governors and legislatures have exercised their powers appropriately during the COVID-19 outbreak. I see no reason why all 50 states and thousands of local communities should have exactly the same policies and responses. Their needs and circumstances differ.
Here in North Carolina, I would count Gov. Roy Cooper and his team among those who have exercised their power well, for the most part. A glaring exception would be the executive order Cooper issued on March 14.
It prohibited “mass gatherings” of more than 100 people. Many institutions were excluded, however: transportation infrastructure, medical facilities, libraries, factories, offices, even shopping malls and other retailers. What wasn’t excluded? Houses of worship.
The exclusions make Cooper’s order unconstitutional. The government can’t shut down church services while leaving malls open for business. I suspect he never expected the order to be enforced on churches. And, indeed, I think churches and other religious institutions should move their services online for the foreseeable future. But the governor cannot compel them to with an order that exempts other organizations.
Pandemics, wars, and other disasters have always tested the durability of the institutions that form free societies. If they are to pass the test, we must all do our part — and keep our heads.