Baseball players have their good luck quirks, the special bat, the rally cap, the favorite mitt. So too with painters. Mine is I NEVER throw out a brush. You’re right, there’s no good reason for this. But after a lifetime of painting, we have quite an assembly: flats, brights, longs, shorts, bristle, oil, acrylic, water color, liners etc., etc. Together, the brushes have a visual life of their own, no two brushes exactly alike, the whole greater than the sum of the parts. Might as well put the brushes to good use. How about as a metaphor for the idea of assembly: i.e. what the First Amendment of the Constitution calls “the right of the people peaceably to assemble.”
These times of coronavirus present new contexts and challenges for our freedoms to be together. You (like us here at Graydon) are likely working from home due to the coronavirus, although we keep in mind those fellow citizens in health care and a host of other jobs on the front lines of the current crisis. A shout out of thanks to them. Millions of Americans are experiencing some disorientation arising from disrupted daily routines of work and life. Social distancing, while a public health necessity for now, is nonetheless disorienting for families, workplaces, neighborhoods, cities, towns and a nation.
Looking at this through the lens of our Constitution, we can see how important its collective, communal and association values are. We are in the habit of seeing the Constitution as being all about individual rights. But times like this reveal how collective and interdependent our rights and “blessings of liberty” are. The “general welfare” is indeed general. The “common defense” is indeed common. Staying home and hand washing, it turns out, is serving the common defense against a world pandemic.
Yet as the pandemic proceeds, as Americans experience the disorientation of non-assembly, as countless businesses seek to re-orient around how they do business with their teams not assembling as they did, the nation is facing a challenging new question: In the pandemic context, how far should government go to limit “the right of the people peaceably to assemble”? Peaceable assembly is a very broad constitutional idea, not just limited to, say, joining a protest march. The right of association includes people assembling at the workplace as well as countless public and private gathering places: schools, universities, places of worship, places outdoors and indoors of all variety.
As we write, Congress is poised to ink the largest single economic stimulus legislation package in American history. Such massive, emergency intervention by government will further fuel and intensify the policy debate over how long local, state and federal authorities should be ‘locking down’ private and public association. Putting politics aside, here are five critical thinking principles that the Constitution offers us as we seek to balance the general welfare goal of halting the pandemic with the right to peaceably assemble and associate.
- No Constitutional Right is Absolute without Limit in all Contexts. Like every other constitutional right, the freedom of assembly is not absolute. Government can limit this freedom depending on the context.
- Remember TPM. TPM is shorthand for “time, place, manner” restrictions. First Amendment rights are generally subject to reasonable time, place and manner restrictions. So, in the context of the exigencies of a national pandemic, TPM restrictions on the freedom to assemble are likely constitutional if they are necessary to protect public health and safety.
- Federalism Matters. Federalism, one of the Constitution’s most fundamental principles, recognizes that we are a union of fifty states. The states have a level of sovereignty even as they are called to cooperate with the federal government in a myriad of ways, often driven by funding. Federalism, historically, has said that state and local government is where the balance of many “police powers” of public health and safety reside. We are increasingly seeing a virus that, while not respective of state lines, is nonetheless hitting different states differently depending a lot on population density. Ohio isn’t New York. Governor DeWine doesn’t face the same context as Governor Cuomo. Federalism is the Constitution’s way of dealing with the pluralism of geography and population. So, as the pandemic proceeds, it is sound constitutional practice to balance state interests and contexts with national ones. Federalism thus relates to the freedom of assembly. Association limits that make sense in New York (e.g. anyone in NYC in the past week must self-quarantine for 14 days) may not make sense in Montana.
- Avoiding Fear-Drivers. Constitutional history shows that times of crisis can lead to extreme steps and violations of constitutional rights if fear is allowed to prevail over reason. The most tragic historic example of this was the isolation of innocent Japanese Americans in internment camps after Pearl Harbor, a deprivation of freedom of assembly rights upheld by the Supreme Court at the time but now seen as a terrible miscarriage of justice.
- Promotion of Science. Listening to science is a way to avoid fear-based decisions. Many Americans don’t realize that the Constitution, as part of the general welfare clause in Article One, expressly states its purpose to promote the progress of science and the humanities/arts. Now, during this public health crisis, we are seeing the necessity of good and sound science. It is public health science, with the guidance of humanitarian values, that will lead America and the world out of the coronavirus pandemic. Some temporary sacrifice of our freedom of assembly is necessary to allow our best science and dedicated public health care workers to do the good work they can do. The Constitution promotes science, not blue or red politics.
Finally, facing the coronavirus challenges together, even as we face temporary restrictions on our assembly freedoms, links to the constitutional principle of e pluribus unum. As we each navigate the individual and diverse ways this is impacting our lives, families, work and communities, we are in this together.
Every brush counts. When working together, something new is created.
