March Madness Without The Basketball

Even without college basketball, we still experienced March Madness. Fear of COVID-19 is driving the country absolutely mad.

State and local governments are trampling our constitutional rights in the name of controlling the spread of the virus. And many Americans – including supposed civil libertarians – aren’t just failing to object, they are actually cheering it.

As of April 1, 38 states and the District of Columbia had announced quasi–martial law, ordering residents to shelter at home except for “essential” purposes such as grocery shopping and medical appointments.

Around 297 million are affected by such orders, and people are already being arrested for violating the legally dubious restrictions. A man in Charles County, Maryland, was arrested for disobeying Gov. Larry Hogan’s order that people not congregate in groups of more than 10.

Hogan said the man’s arrest for hosting parties “sends a great message to folks out there that we aren’t playing around.”

Some communities have gone even further: Chicago Mayor Lori Lightfoot threatened individuals with arrest for going on runs and bike rides that police deem too long, while Rhode Island Gov. Gina Raimondo sent the National Guard door-to-door to find fleeing New Yorkers and effectively place them under two-week house arrest.

Churches across America are being shuttered. New York Mayor Bill de Blasio threatened to permanently close any church or synagogue holding services in violation of his emergency order. 

Surprisingly, most church leaders haven’t just failed to push back against these unambiguous First Amendment violations, but have embraced them. The few who have resisted, such as Tampa megachurch pastor Howard Browne, have been arrested. 

The house of the Lord – a place of worship, Christian fellowship, comfort and refuge that has been open to all through two world wars, communist persecution and even past pandemics – is now only available to those with internet connections. Someday, a post-mortem on the church in America may list its subservience to government now as one of the leading causes of death.

Gun stores have been ordered closed in New York, New Jersey, Massachusetts, New Mexico, Vermont, Michigan and Washington

All these restrictions violate constitutional rights. 

The Supreme Court’s United States v. Carolene Products Company decision allows government regulations that infringe on fundamental rights in order to advance “compelling state interests,” but requires these regulations be narrowly tailored to achieve state interests by the least restrictive means possible.

State and local governments may be able to demonstrate that their infringements on civil liberties are for the greater good, but the data being used to project virus infection and mortality rates is unreliable so far because testing is still quite limited.

“Reported case fatality rates … are meaningless,” said John P.A. Ioannidis, professor of epidemiology and population health at the Stanford University School of Medicine. “Patients who have been tested for [COVID-19] are disproportionately those with severe symptoms and bad outcomes. … We don’t know if we are failing to capture infections by a factor of three or 300.” 

Mortality rates are being calculated with a fairly reliable numerator, but an unknown denominator.

Even with a compelling state interest, governments probably can’t show they’re pursuing it in the least restrictive manner.

We know, for example, those at the greatest risk of serious harm are the elderly and those with preexisting medical conditions such as autoimmune disorders, obesity, heart disease and diabetes. Incentivizing this population group to stay home through a variety of means, such as paid leave, would certainly be less restrictive than across the board stay-at-home orders.  It would also be less expensive and more sustainable over a longer period of time. 

Separating those at higher risk from the general population – many of whom are still in the workforce as “essential workers” – would allow the development of “herd immunity” among the low-risk population. Herd immunity is community resistance that develops when a sufficient portion of the population becomes infected with a virus and develops antibodies to it. When this happens, the virus has trouble finding new hosts and eventually dies out. This approach was considered by some governments to balance the needs of freedom and economic activity with those of public health. They believed a herd immunity approach might also allow them to avoid the post-lockdown resurgence of the virus that is inevitable due to too few people developing immunities. The Netherlands tried a modest variation of this approach but abandoned it when infection rates rose rapidly – as expected – which proved politically unsustainable.

We also know that some of the lockdowns, such as mandated closings of colleges, have been counterproductive. Tens of millions of college students at low risk were sent home, some to virus hot spots, in contravention of Centers for Disease Control guidance. Additionally, some students kicked out of dorms were left with no place to go.

“Young people … quarantined with older people … probably [was] not the best public health strategy,” New YorkGov. Andrew Cuomo said. “The younger people could have been exposing the older people to an infection.”

Closing elementary and secondary schools completely probably didn’t make a lot of sense, either. Accommodations should have been made for kids whose parents wish to keep them home for their safety, but accommodations should also have been made for those kids whose lives are bearable only because they spend 35 hours a week in a safe environment.

The widespread violation of constitutional rights and the public’s enthusiastic embrace of it is alarming because, if it can so easily be implemented during a real crisis, it can  be implemented during a manufactured one.

History is littered with examples of crises being used to curtail civil liberties. The Reichstag Fire, for example, was used by the Nazis to end the Weimar Republic’s civil liberties and consolidate power.

Benjamin Franklin once said, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

It’s time Americans show they are deserving of both.

Ridenour is president of the National Center for Public Policy Research. His early work at NCPPR included directing numerous public policy programs, particularly on environmental and regulatory issues and foreign affairs. A frequent commentator on public policy issues, Ridenour has also twice testified before special political commissions of the United Nations General Assembly and has testified before congressional committees.