Dont these orders go beyond the Commerce Clause, infringe the Privileges or Immunities Clause, or violate one of the other constitutional provisions Im constantly banging on about? Surely Icant approve such extreme impositions on economic liberty, the right to travel, and just the basic freedom to go about your daily life as you choose so long as you dont get in the way of others freedom to do the same?
Well, thats the rub. As Iexplained during Catos online forum on Coronavirus and the Constitution, in apandemic when we dont know whos infected and infections are often asymptomatic, these sorts of restrictions end up maximizing freedom. The traditional libertarian principle that one has aright to swing ones fists, but that right ends at the tip of someone elses nose, means government can restrict our movements and activities, because were all fistswingers now.
This isnt like seatbelt mandates or soda restrictions, where the government regulates your behavior for our own good, becausesetting aside the issue of publicly borne health care coststhe only person you hurt by not wearing aseatbelt or drinking too much sugar is yourself. With communicable diseases, you violate others rights just by being around them.
The federal government is one of enumerated and thus limited powersat least in theory, if observed largely in the breach since the New Dealbut states have police powers to govern for the public health, safety, welfare, and morals (the last one having fallen away in recent decades). Accordingly, in light of the best epidemiological data we have, state and local executives ordered shut downs to prevent people from being around too many other people and thus spreading the disease.
Interestingly, despite the infamous pictures of springbreakers and St. Patricks Day revelers, these government actions were lagging indicators. Restaurant traffic and airline travel fell off acliff before any official action. Airports are still open, even though the president has total authority to shut them down, as George W. Bush did on 9/11.
People began socialdistancing and wearing masks without any edicts. Sports leagues canceled their seasons without so much as a dont play ball from state umpires.
Not being satisfied with this largescale recognition of the threat we face and compliance with commonsense rules for the new normal, however, governors and mayors have begun to overreach. Although Ihad been telling reporters that nobody was going to get arrested for reading in the park or enjoying wildlife with her family, police were indeed telling people to move along if they were in apublic space, even if they were nowhere near anybody else.
When we got questions at that Cato forum about restrictions on the sale of nonessential products or prohibitions on fishinga right going back to Magna Carta!I thought these were farfetched hypotheticals, but it turns out they were all too real.
Then came the bans on parking at achurch and staying in your car to hear asermon, ahead of Easter Sunday, no less, which led toone of the best district court opinionsIve read in along time, reversing such an order in Louisville. (Full disclosure: Judge Justin Walker is afriend, and Im advising the Mississippi Justice Institute on one of these cases in Greenville, Miss.)
Look, this isnt about religious liberty, or any other constitutional right in particular. Assuming that socialdistancing is required to flatten the curve and fight COVID-19, such rules are fine so long as theyre applied equally everywhere, whether to yoga studios or churches, hackathons or street protests.
But theyre not fine when theyre arbitrarily targeted at some businesses and not others, as if coronavirus spreads more in gun shops than liquor stores. Theyre also not fine when they have nothing to do with socialdistancing, as with the fatwas against drivein liturgy or closing only aisles three and five of abigbox store. Or when tennis courts are closed even if the players wear allwhite masks and promise not to both go to the net at the same time. Or that video of the cop chasing that poor guy going for arun on the beach by his lonesome.
These ridiculous examples of petty tyranny led to mymost viral tweet ever: Angered by citations for being in park with nuclear family, or in car at church, or running on the beach. Or nonessential goods roped off in stores. These things have nothing to do with fighting the virus and everything to do with powerhungry politicians and law enforcement.
Just because significant restrictions on our daytoday lives are warranted doesnt mean its afreeforall for government coercion. To borrow alegal standard from adifferent context, the rules have to be congruent and proportional to the harm being addressed. As amatter of law, judges will give executives awide berth to deal with acrisis, but their enforcement measures still have to pass the constitutional smell test.
More fundamentally, any regulations that dont make common sense, that arent seen as reasonable by most people, are simply not going to be taken as legitimate, and they wont be followed. The American people will decide what restrictions are reasonable, and for how long. Just like they decided when to shut down, they have total authority to decide when to reopen.
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- A record 3 million Hoosiers voted in the 2020 election - IndyStar - November 29th, 2020
- Final thoughts on the election - The Republic - November 29th, 2020
- Cobb County and the 2020 General Election: Part 1 - Cobb County Courier - November 29th, 2020
- Charles Koch and Brian Hooks: Believe in People - Reason - November 29th, 2020
- By the Numbers: Local communities were Biden country in Nov. 3 election - Reporter Newspapers - November 29th, 2020
- Opinion: Please don't let me bleed to death in the street - easternnewmexiconews.com - November 29th, 2020
- The Libertarian Moment That Never Comes - The New Republic - November 7th, 2020
- Meet Marshall Burt, Who's About To Become the Libertarian Party's Only Sitting State Legislator - Reason - November 7th, 2020
- Libertarian U.S. Senate candidate puts a wedge in a race that is too close to call - WCNC.com - November 7th, 2020
- Newly Launched Chicago Thinker Aims to Promote Conservative and Libertarian Views on Campus - The Chicago Maroon - November 7th, 2020
- Maybe Jo Jorgensen Finishing With 1% Would Actually Be Pretty Good? - Reason - November 7th, 2020
- Libertarian candidates share conversation and coffee - The Wellsboro Gazette - November 7th, 2020
- Cotton win good news, say parties of two rivals - Arkansas Online - November 7th, 2020
- Libertarian Free Will and the Kalam, Revisited | Jonathan MS Pearce - Patheos - August 17th, 2020
- Floating Cities and Sea-Level Rise - an unsinkable idea - Anthropoce - August 17th, 2020
- When Joe Biden Tried To Paint Clarence Thomas as a Crazy Libertarian - Reason - July 31st, 2020
- Libertarian Assembly candidate calls for line item veto to rein in spending, elimination of property taxes and more to get rid of 'tyranny' and bloat... - July 31st, 2020
- OPINION EXCHANGE | The last days of the tech emperors? - Minneapolis Star Tribune - July 31st, 2020
- Buchanan and Anarchism | Mises Wire - The Shepherd of the Hills Gazette - July 31st, 2020
- Trump Wanted To 'Throw Massie Out of Republican Party!' but the Libertarian-Leaning Congressman Just Won His Primary Anyway - Reason - June 24th, 2020
- Google's warning against the Federalist is why libertarians will lose fight over Big Tech - Washington Examiner - June 24th, 2020
- Texas-based conservative group funding 'green' PAC in MT - KTVH - June 24th, 2020
- Non-mask wearing fools - The Real Nurse Jackie - McKnight's Long Term Care News - June 24th, 2020
- Morelle with big lead over Wilt but absentee votes still to be tallied - WXXI News - June 24th, 2020
- Lockdown easing analysis: Boris Johnson's libertarian instincts returned... and he went further than anyone really expected - Evening Standard - June 24th, 2020
- How a fringe sect from the 1980s influenced No 10's attitude to racism - The Guardian - June 24th, 2020
- Radley Balko on George Floyd, Breonna Taylor, and the Libertarian Case for Criminal Justice Reform - Reason - June 17th, 2020
- While pro-marijuana parties thrive, other minor parties struggle - Southernminn.com - June 17th, 2020
- Letters: 'It is suggested that Boris's Libertarian beliefs were the reasons for delayed Lockdown' - The Northern Echo - June 17th, 2020
- OPINION EXCHANGE | At the center of that Supreme Court ruling were people - Minneapolis Star Tribune - June 17th, 2020
- The other Jo, wants your 2020 vote, if youre fed up with the two-party system or if youre not - WIZM NEWS - June 17th, 2020
- 'Where Are Libertarians on Police Reform?' Right Where We've Always Been. - Reason - June 13th, 2020
- Protests: Meet the Romney-Gary Johnson-Bloomberg voter embracing Black Lives Matter - Vox.com - June 13th, 2020
- What the Pandemic Revealed - Niskanen Center - June 13th, 2020
- Santa Cruz Shooting Suspect Preached Libertarian Ideals, Was Pushed Over the Edge By Police Actions Against Protesters, Friends Say - SFist - June 13th, 2020
- Libertarian Think Tank Praises Pelosis Call to Remove Confederate Statues from Capitol: Slavery is The Least Libertarian Thing Imaginable - Mediaite - June 13th, 2020
- How Not To Build a Transpartisan Coalition for Police Reform - Reason - June 13th, 2020
- Primary Election ballots are in the mail | YourHub - The Know - June 13th, 2020
- Scared for their jobs, Iowa Republicans are gaming the democratic process - The Gazette - June 13th, 2020
- 61 Quick Facts and Observations on Socialism, Jesus, and Wealth | Jon Miltimore - Foundation for Economic Education - June 13th, 2020
- Nelson lead up to 23 votes over Tarkanian - The Record-Courier - June 13th, 2020
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- Libertarian Group Sues Ohio Again On Behalf Of Closed Gyms - WOSU - May 14th, 2020
- The Libertarian Party Critique of Justin Amash - Reason - May 14th, 2020
- Third Parties Unlikely to Wreak Havoc in 2020 Election - New York Magazine - May 14th, 2020
- Modest meat reforms would help Americans stay fed during the pandemic - The Maine Wire - May 14th, 2020
- Senate votes to reauthorize intel programs with added legal protections | TheHill - The Hill - May 14th, 2020
- Drop off or in person, 8 p.m. is deadline to cast your vote in the primary election - North Platte Telegraph - May 14th, 2020
- Another ludicrous Thought of the Day from the BBC: The Bishop of Manchester assures us that we have libertarian free will - stopthefud - May 14th, 2020
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- Will COVID-19 block third-party ballot access? - The Aggie - May 14th, 2020
- Michigan Rep. Justin Amash on Why Hed Run for President as a Libertarian and the Culture of the GOP - TIME - May 9th, 2020
- Governments Have Screwed Up Mask Purchase and Distribution. Maybe Everyone Should Be a Libertarian in a Pandemic. - Reason - May 9th, 2020
- We Need Economists, Civil Libertarians, and Epidemiologists in the COVID-19 Discussion - Reason - May 9th, 2020
- Is the Chinese Communist Party Really Trying To Take Over the World? - The National Interest - May 9th, 2020
- 600K primary election ballots are in the mail to Montana voters - Missoula Current - May 9th, 2020
- The Coronavirus Might Force Minor Parties Off the 2020 Ballot - New York Magazine - April 21st, 2020
- Who should be included in the libertarian canon - UConn Daily Campus - April 21st, 2020
- Opinion | A new populist revolution is here. Don't buy in. - The Daily Northwestern - April 21st, 2020
- COVID-19 is killing minor parties' ability to get candidates on the ballot in Minnesota - MinnPost - April 21st, 2020
- Why You Should Be a Socialist and a Marxist - Jacobin magazine - April 21st, 2020
- Mark Cuban To Run For President? Billionaire Dallas Mavericks Owner Does Not Rule Out 2020 White House Bid - International Business Times - April 21st, 2020
- Berkeley institution Top Dog is on the ropes. But they still wont take federal aid. - SFGate - April 21st, 2020
- No One Is Coming - Tom Webster - Elemental - April 21st, 2020
- Briefs filed in case over whether NM will move to vote-by-mail primaries during coronavirus emergency - New Mexico Political Report - April 9th, 2020
- Construction Accidents and Personal Injuries, Everything You Ought To Know - The Libertarian Republic - March 24th, 2020
- 'Tiger King' is the weird docu-series distraction we can use right now - WICZ - March 24th, 2020
- As Science And Business Go To War With Each Other, President Trump Pours Fuel On The Fire - Forbes - March 24th, 2020
- Vermin Supreme's quest to win hearts, minds and the Libertarian primaries - The Spectator USA - March 22nd, 2020
- Where the 2020 Libertarian candidates stand on Jewish issues? - The Times of Israel - March 22nd, 2020
- COVID-19 and . . . 2024? - National Review - March 22nd, 2020
- Rand Paul Proves He Is Too Good For Us, As He Upsets the Right People - The Liberator Online - March 22nd, 2020
- Tiger King is the weird docu-series distraction we can use right now - Q13 News Seattle - March 22nd, 2020
- Campaign Beat: The Pandemic, The Primary And Third Parties - MTPR - March 22nd, 2020
- The Right to Assemble Not Erased By Government Emergency Libertarians to Continue Meeting in Keene Sundays at 5pm - Free Keene - March 22nd, 2020
- Just Send the Checks - Reason - March 22nd, 2020
- Opinion | Rufus Woods, Art of Community: Now is the time to sacrifice for elders and the vulnerable - wenatcheeworld.com - March 22nd, 2020
- OPINION EXCHANGE | Amid the outbreak, Minnesota's minor political parties will struggle to get on the ballot - Minneapolis Star Tribune - March 22nd, 2020
- The small-government case for giving everyone a big check - The Week Magazine - March 22nd, 2020