Should your unalienable rights yield to COVID-19?

“The people, not the government, possess the absolute sovereignty.” James Madison

This quote from James Madison succinctly expresses American exceptionalism. Our country was founded on and has thrived on the concept that each individual has the inalienable right to life and liberty and pursing happiness on his or her terms. Unfortunately, this distinctive feature of our governmental system is under assault during the COVID-19 crisis as many citizens, politicians and government officials are taking the position that, in the name of safety, our inalienable rights must yield.   While none of our rights are absolute, neither is the government’s police power. In response to the COVID-19 health crisis, the government at every level has issued unprecedented and devastating directives, including confining the public as a whole to their homes, preventing travel, closing business and even preventing faith-based assemblies.  Our fundamental rights, including the right to travel and to pursue employment, cannot yield to the government’s overreaction to the spread of COVID-19 or our individual sovereignty may be forever diminished.

None of our rights as citizens are absolute.  We are all familiar with the example of not being allowed to yell “fire” in a movie theater notwithstanding you have the freedom of speech, but it is intellectually lazy to apply such a simple explanation to the current crisis. Being prevented from yelling “fire” is not tantamount to being told you cannot leave your home or you cannot open your business.  The current chorus of voices demanding you give up your freedom for others safety ignores one of the primary purposes of the codification of our rights in the U.S. Constitution: to avoid tyranny by the majority.  Prior to the creation of the U.S. Constitution, James Madison and other founding fathers were becoming alarmed at how many states were trampling on the fundamental rights of the individual, which was the founding principle of the Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights . . ..“) In essence, our founding fathers sought to establish a government which prevented tyranny not just by a dictator or a group of aristocrats, but by the majority or by “mob rule”.  In their view, many of the states had become “too democratic”, thus, our governmental system is, by design, not a democracy.  We are a constitutional republic and as Madison explained, it is the individual that is sovereign, not the government or even the majority of individuals.

To understand better the importance of protecting individual sovereignty from “mob rule”, let us consider a scenario where the majority of people desired, in the name of safety, to allow the police to search any citizen’s vehicle without probable cause or without a warrant; just merely on the instincts or suspicions of an officer. One could make a cogent argument that crime would be severely reduced if a law was passed affording police such authority. Assuming the majority supported such a law and the legislature passed it, if we accepted the position that the desire and safety of the majority of people are paramount in our society, this law could not be challenged. However, under our constitutional republic, our fundamental rights, including the right to be free from illegal search and seizure, are codified in the U.S. Constitution.  Therefore, even in the name of safety, the aforementioned law would be found unconstitutional and would not be enforceable.  Therefore, we should all be able to agree that while no fundamental right is absolute, there are certain rights which are unalienable and which do not yield to the collective safety of our community.

If we apply these basic principles to the current health crisis, the overreach by the government at every level is quite stark.  With a stroke of a pen, a governor or mayor can confine you to your house because you are not participating in “essential activity” or close your business because your business has been deemed “non-essential”.  What can be more essential to the pursuit of happiness than choosing your daily routine and pursuing your occupation?  Restricting someone to their home and telling them they cannot work strikes at the core of what it means to be free; just as much as having the right to be free from governmental searches without probable cause. 

Thus, the question then remains: is the threat of COVID-19 worth the deprivation of the fundamental rights of the people to travel and to work?  The answer has to be “no” because the world is fraught with dangers far worse than the COVID-19 and if we can literally seize individuals and their business in the name of this epidemic, what other national dangers can be the basis for similar deprivation of rights? Gun violence? Climate change?  Alcohol?  Heart disease? Cancer? Diabetes? . . . or the perennial flu, which kills up to 85,000 Americans a year (and worldwide over a million). 

The majority, and more specifically, the fear of the majority, cannot be the basis of denying individuals their inalienable rights as eventually our individual sovereignty will be destroyed.  Much more dangerous to our existence as a nation than COVID-19, crime or the many perils of the world is a tyrannical, autocratic government and our founding fathers recognized this axiom and built a governmental system to preserve our individual liberty.

Therefore, the answer to addressing  COVID-19 is not necessarily found in science, though educating the public of the science of COVID-19 is crucial.  It is in the same answer we have employed for centuries in America: the individual is afforded the right to make his choices for life, whatever consequence such choices may bring. The government certainly can employ reasonable safety measures, just as they do with every aspect of our lives, from driving to flying; but our fundamental rights codified in both the federal and state constitutions do not allow the wholesale takeover of our lives and livelihood.  To allow the government to erode our fundamental rights in this regard is to abdicate our individual sovereignty, which we may never reclaim.