Is Social Distancing Unconstitutional?

As the nation attempts to move away from “staying-in-place” towards a reopening of various elements of everyday life, there is a lot of discussion about the relationship between the pandemic and the US Constitution. It is not unusual that this should be occurring. Americans are proud of our founding document and reference it often.

The problem is the US Constitution was written over 230 years ago when things were a bit different. That leads often to disputes about the meaning of various clauses and provisions. Especially when disputants have competing axes they wish to grind.

As for me, when I attempt to determine what a particular provision of the US Constitution means, I try to ascertain how it relates to the framers’ purpose when they were creating our federal government. The preamble gives us a useful clue:

“We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

No surprise that “…to form a more perfect Union…” came first. The framers had a number of other objectives: justice, public safety, national defense, economic security, and individual liberty, but they likely understood that accomplishing any and all would require the combined efforts of the approximately four million Americans living at that time. Throughout most of our history union has been the key to our successes as a nation.

With three-hundred-twenty-five million Americans today, continuing to progress towards the goal of “a more perfect Union” is a lot tougher, and our inability to deal with a variety of long term problems reflects this challenge. Still, it is an important goal.

As for our current dilemma, faced with one of our nation’s more serious health threats, most Americans seem to be on board with regards to the need for a common effort, even if it involves significant financial costs and personal inconvenience.  

Some, however, claim the social distancing guidelines imposed or suggested by state and local governments are unconstitutional. Mixed and contradictory messages from the White House regarding the recommendations encourage dissent from the common sense proposals. Fortunately, Congress has been willing to step into the void and provide significant funding to lessen the financial impact of the resulting economic lockdown. But more needs to be done.

Those who assert the social distancing recommendations are unconstitutional seem to suffer from mass paranoia. The guidelines have not been drafted to diminish individual rights, but just as is the case with any threat to domestic order, to national security or to the rights of other individuals, legitimate restraints may be appropriate.  In the current situation, the purpose is to protect our health care system from being overwhelmed by a dangerous virus for which we have no known cure or even treatment.

The speed and extent of the virus has been mindboggling. Unrestrained, it could have swamped our health care system, especially the nation’s hospitals since we maintain, reasonably so, a limited capacity. Even now, there is the possibility of another surge that could leave our health care system unable to respond to other health threats, such as cancer, heart attacks, stroke or flu.

What is the severity of the restrictions? Private businesses, schools and colleges, churches and synagogues, cultural organizations and health care institutions, all have had  their operations shut down, or at least, severely restrained. This is why Congress has sought to mitigate the economic damage suffered by employers and employees.  Allowing society to continue as if the virus did not exist is not a reasonable alternative.

Social distancing does not impose an oppressive burden on the individual. In fact, social distancing, including wearing a mask , is an individual’s obligation to his fellow citizens. It does not interfere with free speech, free press, or religious freedom.  An unrestrained pandemic and death would.

Access to essential human needs have not been shut down. That is why health care facilities remain open, as do grocery stores, the Post Office and other delivery services. All of this is intended to be temporary and it will be if social distancing is practiced by everyone for a reasonable period of time---measured by the course of the virus and by the success of science in developing a cure and improving treatment for those who contract the virus.

President Trump’s cavalier attitude towards social distancing is apparently motivated by a concern that economic sluggishness will torpedo his re-election in November. He has good reason to be concerned. Officially, the US is already in recession. The last president to be re-elected during a recession was Harry Truman.  Too bad Harry is no longer around.