When ‘Unalienable Rights’ Meet National Crisis, Who Wins?
When ‘Unalienable Rights’ Meet National Crisis, Who Wins?

By Eugene Curtin

Creighton University’s eerily silent campus last spring illustrated a national dilemma: How can we, in time of national crisis, balance individual liberties with the need to preserve public safety?

As made clear in a series of messages from Creighton officials, the campus shutdown was a willing though painful contribution to taming the COVID-19 pandemic.

The Rev. Daniel S. Hendrickson, SJ, PhD, president of Creighton University, captured the high cost in a message released on March 23, 2020: “I miss the buzz of activity on our campus mall, the sights of teaching and learning in our classrooms and laboratories, the sounds of laughter and camaraderie enlivening our residence halls, and the spirit and enthusiasm of our students, faculty and staff filling the spaces and places that we hold dear,” he said.

How, then, should people live, during a pandemic that has been compared to warfare? A few Creighton experts in the fields of law, medicine and history weighed in on the question.

Their responses came days after U.S. Attorney General William Barr issued an April 27 memo conceding that “reasonable and temporary restrictions” would not offend the U.S. Constitution. That view finds favor with Thomas Svolos, MD, professor of psychiatry at the Creighton School of Medicine. Absolute freedom, he says, whether or not a national crisis exists, is a function of madness.

“Every individual has a connection to society, and civilization demands some sacrifices of freedom to authority, generally in the name of the common good,” Svolos says. “The idea that we exist independent of the other people around us is kind of a popular notion, but absolute freedom — complete, absolute freedom — is found only in psychosis or, historically, in the absolute monarchs, who would not submit to the State or the law because, as Louis XIV put it, ‘The State, it is me.’”

Michael Kelly, JD, LLM, Creighton professor and Senator Allen A. Sekt Endowed Chair in Law, agrees that government may temporarily restrict civil liberties through powers granted by the people.

“The exercise of some of these powers is more palatable than others,” Kelly says, “and the courts will determine that, just as they did in 1945 by shutting down the shameful Japanese internment camps.” 

Regulating religious liberty is a thornier problem, Kelly says, because the free practice of religion is guaranteed by the U.S. Constitution, but even here “common sense rules come into play.” 

“While you have a protected religious exercise right and a protected assembly right, you cannot exercise those in such a way as to put others in danger,” Kelly says.

Heather Fryer, PhD, director of Creighton’s American Studies Program, says previous crises saw the emergence of “national emergency social contracts” where traditional freedoms were limited on the understanding they would be fully restored when the crisis ended. 

These “contracts,” Fryer says, are easier to write when the enemy is as clear as bombs falling on ships in Hawaii, but pandemics require a more sophisticated approach. The Spanish Flu epidemic of 1918-1919 is instructive, Fryer says.

“After the first wave of influenza in autumn 1918 it seemed the ‘war’ had been won,” she says.

Warnings that the virus had not disappeared carried little weight with a public tired of restrictive laws and wary also of succumbing to the kind of autocracy they had just defeated in World War I.

“To them, it was time to recalibrate the freedom-security equilibrium,” Fryer says. “It was only when the second wave brought a renewed death toll that the value of a national emergency social contract became clear. But by then, it was too late.”

Kelly says “social compacts” are the essence not just of the U.S. Constitution but also of the 50 state constitutions.

“Whether it’s earthquakes, floods, fires or incurable pandemics, we want our governments to protect us just as they do when they deploy troops to fight on our behalf abroad. The restrictions we face are the current form of protection designed to face this crisis.”