Linda Greenhouse produced an intriguing article for the New York Review of Books: An Unhealthy Definition of Rights. In it she discusses a book by Wendy E. Parmet: Constitutional Contagion: Covid, the Courts, and Public Health. Greenhouse presented a startling Supreme Court Ruling that seems to conclude that the Constitution owes we citizens nothing in terms of protection from “private actors.” The particular case was DeShaney v. Winnebago County (1989).
“In this case, the father of a four-year-old boy was known by government social service workers to be abusing his son, yet the county failed to remove the boy from his custody. A final beating left the boy severely brain-damaged. The question was whether the government’s failure to act on its knowledge violated the child’s constitutional right to due process. Rejecting the claim, Chief Justice William Rehnquist wrote for the majority:
Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.”
This Constitutional failure has long been recognized but had not been seen as an impediment to government taking actions to protect its citizens. That has begun to change as the Court has swung to more extreme conservative legal theories.
“…the fact remains that the rights guaranteed by the Constitution are for the most part negative rights against government interference rather than positive rights to government-provided goods or services. This feature of American constitutionalism has been widely observed and continually contested. In his 1944 State of the Union address, Franklin D. Roosevelt called for ‘a second Bill of Rights,’ one that would include guarantees to the right to ‘a useful and remunerative job,’ ‘a decent home,’ ‘adequate medical care,’ ‘a good education,’ and ‘the right to adequate protection from the economic fears of old age, sickness, accident, and unemployment.’ Cass R. Sunstein, in The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever (2004), wrote that the address ‘has a strong claim to being the greatest speech of the twentieth century’.”
The interpretation by Rehnquist and his colleagues became dominant during the legal arguments over Covid pandemic actions and overturned a long history of government regulation arguing that there were limits on personal liberties if those actions endangered others. Consider the history of vaccine mandates.
“Vaccine requirements are nothing new; George Washington required soldiers in the Continental Army to be vaccinated against smallpox. Nor is resistance to them a historical anomaly. Jacobson v. Massachusetts, the Supreme Court decision that established the legal framework for dealing with vaccine resistance, dates to 1905 and stems from an individual’s refusal to accept a required smallpox vaccine.”
“By a vote of 7–2, the justices upheld Jacobson’s conviction with a ringing endorsement of vaccine mandates in service of the public good. ‘There are manifold restraints to which every person is necessarily subject for the common good,” Justice John Marshall Harlan wrote in the majority opinion.
Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
In Harlan’s words, this ‘liberty regulated by law’ was the ‘fundamental principle of the social compact’.”
When the pandemic struck the Supreme Court’s legal bias was toward a quite different interpretation of individual rights, particularly when religion was the issue. Alerting the public to this change and its consequences was the purpose of Parmet’s book.
“She places on display an American exceptionalism of a particularly disquieting form: a legal mindset that has come to value individual freedom over communal welfare and so has ‘lost sight of contagion’s most compelling lesson: Our own health depends on the health of others’.”
Consider one noteworthy case that was argued during the pandemic.
“In January 2022 a federal district judge barred the navy from penalizing a group of SEALs who claimed religious reasons for refusing the Covid vaccine. Parmet notes this astonishing case, but without giving the details that demonstrate how far away from the ‘rich liberty’ of the Jacobson case the legal system was moving not even two years into the pandemic. The district court decision’s list of the SEALs’ rationales for refusing to be vaccinated included the ‘belief that modifying one’s body is an affront to the Creator’ and ‘direct, divine instruction not to receive the vaccine.’ The navy argued that the requested waivers would render the SEALs nondeployable, to the detriment of military readiness and the national defense. Judge Reed O’Connor was unmoved. ‘The Plaintiffs’ loss of religious liberties outweighs any forthcoming harm to the Navy,’ he concluded.”
The case became moot when the Navy ultimately withdrew the order, but the precedent set was alarming to say the least. While the focus of the article is on health issues, the elevation of individual liberty (or license) above the needs of society is troubling in an even greater arena.
A group of soldiers decided to disobey an order because they didn’t agree with it and the court told them they had done the right thing. What might the future consequences be if soldiers’ religious or political beliefs convince them they need not obey an order.
Humans live in groups because they learned, over the course of evolution, that groups provided individuals with a higher level of protection than they could provide themselves. Individuals support the group because they know the group will be there to support them. Thus, the notion that an individual’s liberties can be more important than the good of the community is rather nonhuman, and unlikely to have been an intention of our group leaders (our Founding fathers). Further, the notion that religious freedoms seem to be weakening the bond between individuals and other members of society is particularly troubling. Religions are inherently discriminatory, dividing a group into subsets of believers and nonbelievers. These subsets can coexist provided one does not attempt to impose its beliefs on others. Unfortunately, such a tendency seems inevitable when religious groups seek political power in order to dominate the community. This always damages the group, leading to social and physical conflicts. Human history is replete with examples of societies descending into dark times from corruption of leadership by the religious, or of wars being waged between different religious groups.
The grasping for power by religious groups in our country is a major source of the polarization that has unsettled our nation and rendered our federal government inoperative. The current Supreme Court justices seem determined to support the polarization of our political system by propagating their own religious biases. This cannot end well.
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