COVID and the Constitution: Governments struggle to balance collective safety with personal autonomy

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As the economic and social shutdown stretches into months, Americans across the ideological divide have increasingly voiced frustration at isolation orders -- with businesses, parks, schools and churches shuttered.

"I kind of thought those restrictions were kind of tough for the church to be able to do it. I get it," said Rev. Bob Jackson, senior pastor at Acts Full Gospel Church in Oakland, California. "We want to keep our parishioners safe. And I believe that with all my heart. But at the same time, my goodness, the restrictions are so tough!"

From war to natural disasters to health emergencies, the nation has embraced -- or chafed -- at government oversight during a national crisis. Examples include:

-- The suspension of habeas corpus during the Civil War to the forced internment of Japanese-Americans in World War Two-

-- Monthslong curfews in New Orleans after Hurricane Katrina

-- And now, the COVID-19 pandemic.

"You've got a lot of free speech and free exercise concerns, first amendment concerns that are raised in a pandemic, where the power of the state seems to be and often is at its apex," said David French, senior editor at The Dispatch, and author of "Divided We Fall."

President Trump on March 13 declared a national emergency, promising a robust federal response and cooperation with the states.

"Through a very collective action and shared sacrifice, national determination, we will overcome the threat of the virus," he said.

Every state governor has since imposed varying and evolving restrictions -- guided by federal health safeguards.

But a Fox News analysis found legal challenges in every state, with claims that public safety measures are violating individual civil liberty as guaranteed by the constitution:

"At this point, we've seen courts weigh whether a certain stay-at-home orders and assembly orders are constitutional and they have been mostly deferential towards the state," said Lata Nott, a First Amendment Fellow at the Freedom Forum. "And that's because when they've done the balancing test, we're still in fairly early days of this pandemic and it's an emergency situation. And the idea behind it is that First Amendment rights are never unlimited and they need to be balanced with public health."

Many of the lawsuits concern discrepancies over what is an "essential service." Critics point to abortion clinics and gun shops being shuttered-- while pot dispensaries remain open and thousands of non-violent criminals have been freed from prison.

Other lawsuits concern privacy rights, including government monitoring of cellphone use -- minus personal data -- to track the spread of the virus.

The pandemic has scrambled the policies -- and politics -- across a range of fundamental rights

In free speech, Newark, New Jersey officials had threatened to use the state's "public alarm" laws to prosecute those spreading false reporting on Covid-19 through social media.

In freedom of assembly, a challenge to New Hampshire's prohibition on gatherings of 50 people or more.

And in free exercise of religion, Lutheran churches in Minnesota have defied the state's lockdown by opening services last month.

In California, 1200 pastors have vowed to defy restrictions, saying spreading the faith is essential:

"Between religious gatherings and secular gatherings, there has been a clear violation of equal treatment that violates the First Amendment," said Mathew Staver, founder of Liberty Counsel, a conservative law firm.

Trump agrees and has deemed houses of worship "essential," threatening to "override" states that refuse, although it's unclear what legal authority he would have.

But that highlights a longstanding federalism conflict, local jurisdictions resisting mandates from Washington, even during national emergencies.

"You're going to see different states taking different approaches. You're going to see the president liking some of them and disliking others, but really having no authority to trump any given state's approach to things," said French. "Even though the overwhelming financial resources rests with the federal government, the overwhelming amount of legal power rests with the governors."

That tension has been especially acute in states that want to make it easier and safer to vote during the pandemic.

Trump has promised to withhold federal funding for some states that increase mail-in and remote voting-- including battleground states Nevada and Michigan.

"Threatening to take money away from a state that is hurting as bad as we are right now is just scary and I think something that is unacceptable," said Michigan Democratic Gov. Gretchen Whitmer.

Voting is the essence of democracy, and while some primaries have been postponed, even cancelled, and some experts say governments have to find a way to hold the November presidential election on time.

"The pandemic snuck up on us," said Paul Smith of the Campaign Legal Center and a longtime Supreme Court appellate attorney. "But the general election is six months off. There's time to prepare, and there are deadlines that make it essentially infeasible to delay the election."

In Jacobson v. Massachusetts, the U.S. Supreme Court in 1905 ruled against a man who refused a compulsory vaccination during a smallpox outbreak. But the justices at the time warned against "arbitrary" or oppressive regulation.

At issue:  may nearly all constitutional rights be reasonably restricted to combat a public health emergency?

In the past few weeks, the justices have received emergency appeals on:

-- Closed churches in California and Illinois

-- Prison safety from Texas

-- Absentee ballots from Wisconsin

-- And stay-at-home orders from Pennsylvania

The high court for the most part has given temporary legal relief to the states, but have not yet been asked ruled on the merits.

And it may not have to: the worst of the pandemic may pass before the justices would be ready to weigh in on the broader constitutional issues

"We should always keep in mind that history shows that governments often use crises to deny people civil liberties in a longer term basis. And that's something that we should be vigilant about," said Nott. "We should be watching the laws and orders that our governments are passing and making sure that they're not going too far."