Pandemic-related restrictions vary widely from state to state, from county to county, and even from city to city. In some parts of the United States, such as Texas, mask mandates and restrictions on venue capacity have mostly been lifted. In other parts of the country, including Washington, D.C., restrictions on both indoor and outdoor activities remain in place.
What intrusions into the lives of Americans are still legitimate even though the original justifications have weakened or disappeared? Four broad principles can help answer that question, and guide how public authorities should act during the remainder of the pandemic—or, for that matter, if they face another pandemic in the coming years.
1. Restricting Fundamental Rights Requires Extraordinary Reasons
To protect fundamental rights, Americans are usually willing to tolerate all kinds of serious drawbacks. Even during wartime, newspapers are allowed to criticize the government. Even when guilt is evident, a perpetrator may escape a prison term if prosecutors acquired the necessary evidence in an illegitimate manner. And even though forcing people to stay at home would save thousands of lives during flu season every year, Americans may go about their business freely.
Last year, the threat posed by COVID-19 was sufficiently extreme to justify a time-limited restriction of basic liberties. Averting a breakdown of the country’s medical system, in particular, did qualify as what constitutional scholars call “a compelling state interest” in suspending some fundamental rights for a brief period.
But that brief period is now over. The compelling interest that motivated those restrictions—a breakdown of the medical system—is no longer valid. Restrictions on fundamental freedoms, such as the right to worship or assemble, are no longer justifiable.
2. Resist the Status-Quo Bias
Governments, like individuals, suffer from a strong “status-quo bias.” If a policy is already on the books, they give great weight to its positive effects and concentrate on the potential downsides of changing it. If it has not yet been implemented, they give much less weight to its positive potential, and much more to the problems it might create.
Last year, this status-quo bias made virtually every government around the world reluctant to impose restrictions that could have slowed the spread of the pandemic and allowed them to contain the virus. Now the same bias is tempting governments to sustain extraordinary restrictions. Because lifting restrictions may well result in some additional deaths, public officials are hesitant to give Americans back their basic freedoms.
Relatedly, some who argue in favor of continued restrictions have come up with a new justification for keeping the old rules. We finally have lifesaving vaccines, they say, so we might as well put up with far-reaching restrictions until we achieve herd immunity. But that rationale would imply that the state can restrict basic rights whenever the lives of some of its citizens are at stake—a principle that would give governments an excuse to curtail fundamental freedoms at just about any juncture.