Over the past two months much of the nation has been in a state of lockdown, and for good reason:  people do not want the deadly Covid-19 virus to spread, and scientific data said continuing normal behaviors would have that result.

However, anti-lockdown protests have sprung up in recent weeks. The essential question is, does the government have the right to force individuals into a kind of house arrest for as long as it deems necessary? 

The problem is we don’t really know if the new rules are Constitutional.  While the restrictions seem to violate many of our rights (association and use of property to name two), emergencies often force governments to wade into a legal gray zone.

Sadly, the lack of Constitutional guidance in times of crisis has allowed  governments to seize powers that seemed reasonable at first, but that the government unnecessarily retained after the crisis. 

The Patriot Act, which was passed after 9/11 in order to stop terrorism, is now used to spy on innocent American citizens according to the American Civil Liberties Union.

President Trump recently used emergency laws meant to give the government power in times of crisis in order to sidestep Congress in the funding of a border wall. The atlantic.com points out that the president could theoretically use laws meant for emergencies to shut down the internet or take control or radio broadcasts.  While these laws sound unconstitutional, exceptions have been made for emergencies. Critically, the exclusion of states of emergency from the constitution has allowed seemingly unconstitutional emergency laws to grow.

One might point to the Supreme Court as the body that protects American freedoms against the expanding of government power during a crisis. However, this is not always the case.  According to the USA Today, the Supreme Court authorized President Trump’s sidestep of Congress in order to build a border wall.  In 1917, Supreme Court infamously found in Schenck v. The United States that if someone’s speech was posing a “clear and present danger” then that speech can be restricted by the government. The Court gave the example of yelling “Fire!” in a crowded theater as an example of something that would not be protected by the First Amendment. This seems reasonable until we realize that the case allowed people protesting the draft to be silenced and punished by the government. 

In the infamous Korematsu v. the United States case the Supreme Court, in apparent panic over Pearl Harbor, allowed the federal government to detain and move hundreds of thousands of Asian-Americans into camps. It is easy to see a situation where the government might attempt to retain the powers which they have seized during a crisis. And even if the Court does strike down governmental overreach, it often takes a long time to go through the court system.

The solution to this problem is a Constitutional update. Currently the Congress can pass laws giving the president emergency authority, yet when they try to repeal said laws, the president may veto them. This ability for the executive branch to snatch and hold onto power over time must be changed. The Constitution should also give the oversight committee of the Senate or House the ability to revoke states of emergency over the objections of the executive branch.  This allows the legislature to quickly stop the president from seizing too much power. All bills extending the government’s authority beyond those specified in the Constitution should have a requirement to be continually reauthorized by Congress and scrutinized by the Supreme Court. The Constitution should specify which rights may be curtailed in states of emergency (the right to vote should never be among them)  to what extent, and for what period of time. Abuse of emergency powers by executive officers should be a criminal offense. Finally, the president should no longer be able to fire the very people who investigate government abuse in agencies, the Inspectors General. These are but a few things that must be changed.

By updating the Constitution to better include states of emergency, we can bring emergency powers into the Constitutional framework thus ensuring both safety and liberty for the American people. And as Benjamin Franklin said  “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”