According to the seventeenth century poet John Donne, “No state is an island entire of itself; every state is a piece of the continent.” As you may have noticed, I changed a word. He used the word “man” where I have inserted “state.” My altered version serves as an apt description of the reality in which we now live.
The United States does have one island-state, Hawaii, but in a sense the forty-nine continental states have become islands as well during this pandemic. The governors have been left to their own to a large extent. As of March 23, more than two months after the first confirmed case of Covid-19 in the United States, nearly that long after the World Health Organization declared a global health emergency, and a week after the Coronavirus had reached every state, only nine states had issued statewide stay-at-home orders. A week later the number was up to thirty, including New Hampshire; and today forty-two states, the District of Columbia, and Puerto Rico (also an island) have told their citizens to stay put. So has the Navajo Nation.
On April 3, Dr. Anthony Fauci, widely regarded as the voice of common sense on how to deal with the Covid-19 pandemic, told CNN he could not understand why states were not being required to act uniformly. But no such requirement exists, and North Dakota, South Dakota, Nebraska, Iowa, and Arkansas, and parts of Wyoming, Utah, and Oklahoma have gone their own way, imposing fewer or no limits on person-to-person proximity. Each of them borders on at least two states that do have statewide orders.
What we are seeing, in real time, is a national problem being addressed piecemeal. And I haven’t even mentioned the unseemly competition for personal protection equipment.
President Trump has referred to “federalism” as a reason not to issue a national stay-at-home order. He may have a point insofar as any in-state quarantine arguably falls within the exclusive purview of the states.
But I have my doubts. The coronavirus, after all, doesn’t know one state from another, and Trump’s expansive use of his Article II executive power pre-Covid-19, banning travel from Muslim countries for instance, seems at odds with this newfound constitutional deference.
Ordering people to stay at home obviously interferes with their right to travel. You won’t find such a right spelled out in the Constitution, but that doesn’t mean it isn’t there. As far back as 1868, travel was held in Crandall v. Nevada to be a fundamental right. And in Williams v. Fears (1900), the “right of locomotion” became “an attribute of personal liberty … secured by the Fourteenth Amendment.” More recently, in Kent v. Dulles (1958), the Supreme Court decided that the right to international travel is part of the Fifth Amendment right to “liberty.” “Freedom of movement,” wrote Justice Douglas, “is basic to our scheme of values.”
That didn’t stop Rhode Island Governor Gina Raimondo from imposing a 14-day quarantine on all out-of-state drivers entering her state. One legal columnist has applied the term “license plate profiling” to Raimondo’s order and believes it runs afoul of the Privileges and Immunities Clause, which says that you can’t treat the people from other states differently than your own. According to that theory, Rhode Island would have to impose similar rules on its own citizens exiting the state.
Then there is the matter of limiting the number of people in one place. It started at 500 in New York and has now gone down in many places to ten. Meanwhile, Florida allowed college students on spring break to exercise their constitutional right of assembly and revel on its beaches, likely taking the virus with them and spreading it across the country.
The states have the right to protect public health, and the federal government has the power to regulate commerce. The various restrictions under which we all now live have not been tested in court, but I have little doubt they would be upheld. Most constitutional rights are not absolute and must yield to an overriding governmental interest so long as restrictions are narrow in scope and, importantly, limited in time.
As an aside, coronavirus deniers on social media call the pandemic a “hoax.” A woman in Kansas is having no part of what she calls “a mass hysteria caused by the liberal media who want to take Trump and our economy down.” Such views may be held by a small minority, but the conduct of a larger number conveys their skepticism. Refusing to engage in social distancing, visiting bars, attending church services, and otherwise refusing to adjust their daily activities – all are a way of questioning whether the pandemic is as real as the so-called “experts” say it is.
Conspiracy theorists and others have the right to ignore what is real and express their opinions, and most of us understand that they are the ones spreading fake news. Freedom of travel and the right to associate with others are important, but freedom of speech occupies a special place in our constitutional firmament. “Freedom for the thought that we hate,” as Justice Holmes called it, protects all sorts of deniers, from atheists to climate change disbelievers to those who claim the Holocaust never happened. Even the Coronavirus pandemic cannot amend the Constitution.
But when the history of this viral onslaught is written, it will likely criticize how we handled it. When what we most needed was a united national defense to a common enemy, we have been more ununited than united.
John Donne’s poem ends with the prophetic words, “never send to know for whom the bell tolls, it tolls for thee.”