If you grew up in America prior to 2020, you might have gone through life with the vague assumption you had certain inalienable rights such as the right to pursue an education or work a job, have friends over for a party, or speak freely in our digital town squares.
Granted, there were always obvious asterisks: Slavery and Jim Crow, post-9/11 surveillance, the basic business model of Big Tech, etc. But the racial asterisks were in the past, and at least some of the privacy ones came with the undeniable benefit of allowing friends to comment on pictures of that cute thing your cat did.
Then COVID-19 happened, and it became apparent many of the inalienable rights you thought you had were, in fact, actually quite alienable.
In the opening months of 2020, you may have heard stories of lockdowns abroad before quickly finding yourself grateful to be an American, free from worrying about that kind of thing.
We have a Constitution and Bill of Rights. We fought a war nearly 250 years ago that was about more than not paying taxes on tea or ensuring future generations wouldn’t have to care about a duchess’s Netflix special.
When Gov. Gavin Newsom (D-CA) started talking about closing bars in California, you may have been shocked but reassured yourself the Supreme Court would soon put a stop to that madness. Then a week later you were navigating Kafkaesque rules dictating whether you were allowed to leave your home.
Later, notions of bodily and medical autonomy were challenged through vaccine mandates. And at some point, government officials started strongly encouraging Big Tech to censor information incongruent with official narratives.
Apparently, the Constitution had a pandemic clause. It may have been retconned, but it clearly stated if enough people get sick, governors get to channel their inner dictators.
Looking back, it’s hard not to wonder how this was able to happen. Depressingly, the answer might be we’re not as free as we think.
The spirit of the Declaration of Independence and Constitution nominally enshrine Enlightenment-era and classically liberal ideals. Yet, in practice, we live with something closer to what Catch-22 is revealed to be in the closing chapters of Joseph Heller’s seminal work. Those in power can do whatever we can’t stop them from doing. For us, this translates as a government action that is not unconstitutional unless explicitly forbidden by the Constitution or clarified as such by the courts.
In recent weeks, we have seen several such clarifications. A pair of rulings from the 9th Circuit challenged the state’s ability to require non-sterilizing vaccines for employment or hold those seeking exemptions to such requirements for religious reasons to higher standards than those doing so for secular ones.
We also saw the Chevron doctrine, which previously instructed courts to defer to government agencies on many scientific and technical matters, overruled.
And the Supreme Court set extremely high standards for future claims one’s rights were violated through government coercion of social media companies, as long as the coercion campaigns are carried out with sufficient subtlety and sophistication (to paraphrase Samuel Alito’s dissent).
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Although one of these is a crushing disappointment, the remaining three are Fourth of July gifts for those concerned about what draconian measures our leaders might reimpose if they can finally make Disease-X, H5N1, or super COVID-19 a thing.
For those concerned about freedom and liberty more broadly, however, one can’t help but think we deserve better than waiting for such rulings to clarify our inalienable rights for us.
Daniel Nuccio is a Ph.D. student in biology and a regular contributor to the College Fix and the Brownstone Institute.