Liberty in times of emergency

Here’s a fun fact you might not know. Your “freedom of association” is not guaranteed specifically by name in the First Amendment.

Don’t believe me? Read it again.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Religion, speech, the press, assembly and petition, all articulated very intentionally, leaving no ambiguity.

So why do we all think we have a right to freely associate with one another, then?

Well, because we do, even if it isn’t specifically carved out by name.

After hearing the case of NAACP v. Alabama in 1958, the U.S. Supreme Court held that Americans did, in fact, have a right to freely associate with whomever they wished because the freedom to do so is a critical requirement for a freedom of speech to even exist in the first place.

If a great majority of Americans feel a certain way about something — like, oh, say, gay rights, Jim Crow laws, women voting or slavery — and government is populated by that majority, it would be very easy for them to stop those who hold alternative opinions from associating with one another, and thus exercising their rights.

So, fortunately for us, we do have a right to freely associate. Or do we?

Saying that Maine and the nation are “in the midst of one of the greatest public health crises this world has seen in more than a century,” Gov. Janet Mills on Tuesday placed Maine among the 28 other states issuing firm stay-at-home orders.

The executive order has many provisions in it, including specific regulations on businesses deemed essential. It also carries with it penalties, and authorizes law enforcement to arrest people who defy the order and charge them with a Class E crime, which could land you in jail for up to six months and saddle you with a $1,000 fine.

To be very clear, the actions ordered by Mills — who I think has done an admirable job for the most part through this — should be implemented by us all. I’m doing them, and so should you.

But I am very uncomfortable with the lack of critical debate or even token consideration by most of the public of our constitutional rights, as those rights are suspended by government.

The very problem inherent in this is that the government orders and restrictions are at this time, from a public health standpoint, smart actions and good advice. It is our very agreement with the goals that has led to our widespread compliance without question.

But as Friedrich Hayek once said, “Emergencies have always been the pretext on which the safeguards of individual liberty have been eroded.”

Most of the most grotesque abuses of human liberty in the history of mankind have come because frightened and desperate people handed over their freedom for what were, at the time, entirely understandable reasons. Only later did they value their liberties.

Yes, this order makes sense and few people disagree with the government having this power now. But who are the people judging which emergencies entitle us to surrender which rights? What if this pandemic was half as bad as it is now? What if it was twice as bad? 

Emergencies are subjective, after all. For every universally agreed-upon crisis, we have those that we have major differences of opinion about, or have we forgotten about President Donald Trump’s National Emergency Concerning the Southern Border?

Even if the eventual answer we arrive at is that government should, in fact, have dramatic powers that limit constitutionally protected freedoms in emergencies like this, I think it is at least worth a real, thoughtful and robust discussion and debate, even if we do what the order asks us to do in the meantime.

Matthew Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.