Countries are taking extraordinary measures to slow the COVID-19 pandemic. Many of these measures limit individual freedom and may also violate rights guaranteed by national constitutions. Italy’s complete lockdown, enforced by criminal penalties, probably violates its constitution. Norwegian lawmakers have proposed an emergency law that temporarily gives the government unprecedented power to override the constitution and national laws to thwart the virus. Meanwhile, without consulting the Israeli Parliament, Prime Minister Benjamin Netanyahu enacted emergency regulations allowing for stunning surveillance power to combat the virus. Never one to waste a good crisis, Hungary’s Viktor Orbán will likely be able to rule by decree for the foreseeable future.
The United States now faces this same dilemma: To what extent should the Constitution be violated to fight the coronavirus? Lockdowns, especially ones that apply to people who haven’t tested positive for the virus, are constitutionally questionable. The threat by the leaders of Newark, New Jersey, to prosecute residents who spread false information about the virus—if carried out—could violate the First Amendment. Some people in California have challenged the city of San Jose’s authority to force a gun shop to close, citing their right to arm themselves. Perhaps most alarming, the U.S. Department of Justice “has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies.”