By Samuel G. MacRoberts
Submitted to the Topeka Capital-Journal
In these trying times, vigilance is paramount. That’s why public health officers began taking action. Their sole mission is to stop COVID-19′s spread. The point is to “flatten the curve.” The goal is laudable and necessary. Health officers are empowered to act and should act within reason.
This isn’t the flu. It’s not a hoax.
Naturally, the public has questions about these orders. They’re impacting us in far-ranging ways, after all. There are no easy answers. Although health officers have broad powers, they are not unlimited. A public gathering ban or “shelter in place” order nonetheless raises constitutional concerns. The order should use the least restrictive means available to accomplish its purpose. The order’s exceptions matter, too.
A public gathering ban that applies to movie theaters but not plays, for example, is suspect. Banning small religious ceremonies but not large gatherings in shopping malls would be even more problematic. A temporary order lasting beyond the health crisis would raise even more issues.
It’s also reasonable to consider the past so we do not repeat our mistakes. During troubled times, fear is sometimes used to justify otherwise illegitimate actions. History is replete with examples. In 1919, a crisis justified the incarceration of pamphleteers. A crisis ushered in an era of secret, warrantless searches. And in 2016, the FBI tried using a crisis to force Apple into unlocking its customers’ cell phones.
Thankfully, no Kansas governmental entity has even approached the above’s equivalent. They have remained mostly circumspect. The Department of Justice apparently hasn’t. Recently, reports indicate DOJ has sought congressional authority to ask judges to detain people indefinitely during emergencies.
A person wouldn’t necessarily appear before a judge until the emergency ended. This could permit unlimited detentions of American citizens based on little more than the government’s unproven accusations. Indefinite detention is not directly related to the COVID-19 pandemic.
The point is, the Kansas and United States Constitutions were built for this moment. The pandemic is frightening. Reasonable efforts must be made to stop its spread. But this crisis is not unprecedented in the sense that we’ve faced other serious and deadly threats before.
This particular moment should not be used to hastily set aside our constitutional rights. Any governmental action should use the least restrictive means available, and of course, be truly temporary. Our state and federal constitutions are deliberate and foundational. They were written in times of peril to protect us against peril, including the COVID-19 pandemic.
Once the curve is flattened, society will be far better off with its liberties intact.
Samuel G. MacRoberts is the general counsel and litigation director for the Kansas Justice Institute, a public-interest litigation firm.