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Attorney General Bill Barr caused something of a stir Tuesday by quipping that some of the state shelter-in-place restrictions to stem the coronavirus epidemic have been akin to “house arrest.” In essence, though, he was simply conveying the same civil-rights theory that we tracked here less than a week ago when the Justice Department intervened in a lawsuit brought by Christians whose Mississippi town was capriciously denying them the right to communal worship.
As the Civil Rights Division’s submission to the Mississippi federal court framed the matter: “There is no pandemic exception ... to the fundamental liberties the Constitution safeguards.”
This is exactly the line the AG took in Tuesday’s wide-ranging interview by Hugh Hewitt. Government restrictions on liberty, whether federal, state or municipal, are only justifiable when there is a compelling public interest; and even then, they must be narrowly tailored: the least restrictive means of burdening our fundamental rights. There is no doubt that the state’s interest in preventing the spread of infectious disease is compelling; but shelter-in-place regulations can be too draconian if the state can sensibly pursue its legitimate public-safety objectives through less burdensome measures — social distancing practices, wearing protective gear, encouraging hygiene, etc.
Barr elaborated that government’s legitimate interests evolve over time. When the coronavirus began its alarming spread, the priority was to “flatten the curve” — i.e., not allow the virus to spread so rapidly and broadly that it would overwhelm our hospitalization capacity. That was an argument for taking more aggressive steps on a temporary basis. It is a key attribute of executive authority in our federalist system, the AG observed, that the president and governors have the power and flexibility to do that while adjusting to conditions on the ground, which vary from place to place.
Now we are moving into a new phase, in which the federal and state governments are undertaking to rejuvenate commercial and social life. That’s also a compelling government interest, and one in which our civil liberties are owed more deference. Governmental restrictions, Barr stressed, have to be narrowly tailored in this phase, too.