Our country endorsed torture, detention without trial, and massive surveillance after three thousand people were killed in the hope of preventing another attack. We even invaded another place that had nothing to do with the attack that *could* have had weapons and *might* have attacked us. Now that a virus has killed thirty times that number we are calling wearing masks, working from home, and keeping non-essential businesses closed an attack on freedom? Where were these protests when the Patriot Act was signed? Is it because one was an overreaction against Muslims and the other is a fight to contain germs which require understanding science and evolution to properly fear? I don’t understand anymore. This country lost its damn mind after 9/11 over a comparatively lesser threat than the one we are facing now, which we actually have a lot more control over containing. Just like climate change, another threat coming down the pike we don’t have a plan for until it bites us in the ass.
This has been exactly my argument, but in reverse. Many of us DID object to the Patriot Act and other measures that seemed to ignore constitutional “inconveniences” in the name of public safety. I now feel like we are now seeing many of the same arguments on the left for how to confront the pandemic as we then did on the right to confront terrorism. I have said all along that there are neither terrorism nor public health exceptions to the Constitution so I’m going to pat myself on the back for consistency on this one. Thanks for noticing!
What part of the response here in Massachusetts do you see as unconstitutional and infringing on your rights?
The aspect that concerns me the most is contact tracing.
Even in its most innocuous form, it involves a government agent asking who someone has met with and when. What happens if the subject declines to answer? What if a subject omits, even intentionally, some people or places from his or her response?
Hopefully the following phrase is familiar to most of us: “You have the right to remain silent …”.
The Miranda warning was controversial in the 1960s when it was adopted as a response to the now famous Miranda decision. There were many, especially in the right wing, who warned that it would destroy the social fabric of America.
I’m not, yet, arguing against contact tracing. I understand its importance. I’m instead arguing that we would should be VERY aware of its conflict with our constitutional rights.
Let me just enumerate some specifics that concern me:
It seems to me that even asking a person who they have had contact with — never mind the explicit prohibition of gatherings — violates this provision. Is such a provision warranted given a public health emergency? Perhaps, but not without explicitly addressing the limits and rationale.
Any contact tracing that involves electronic surveillance violates at least the spirit of this. I hope that every American knows that if a police officer asks to search their home or vehicle, they have a right to ask to see a search warrant and a right to refuse in the absence of such a warrant. Perhaps the lawyers among us can clarify whether the police are even able to request a warrantless search. This is one of the key issues with stop-and-frisk.
Our basic rights and freedoms are already under ferocious attack from the GOP, Donald Trump, and the Trumpists. I suggest that we should fiercely resist ANY such attack, regardless of its source.
Reasonable and necessary limitations on our rights driven by sincere and actual public health concerns are acceptable. Asserting that those rights either don’t exist at all or are quaint privileges of a select few is not.
Thanks for the detailed response, Tom. Totally agree with you in principle. I see this crisis as a death knell for some of our privacy rights, and not just in the U.S.
But a few points anyway:
1. Say what you will about Charlie Baker, I think he has been prudent with respect to our rights in the state of emergency, more so than some surrounding states which officially have strict lockdowns. The legislature has not acted to either legitimize or curtail these “emergency” actions going on over 2 months now.
1a. Unfortunately this lenient approach is reflected in the numbers. Massachusetts is nearly the hardest hit state with case numbers rivaling Italy and barely slowing down.
2. Surprisingly there are some technological solutions to contact tracing that can actually be less invasive than the government doing it. It’s *technically* possible for everyone to check anonymously if they’ve been in close proximity to a confirmed case, assuming everyone is carrying a phone. Even if the technology is universally implemented, however, this relies on people voluntarily checking and quarantining themselves so it’s unlikely to be very effective.
3. RE: Our basic rights and freedoms are already under ferocious attack from the GOP, Donald Trump, and the Trumpists.
This bears repeating again and again: This did not start with Trump and is not being done by Trump on his own. He’s using the tools created by George W. Bush and previous administrations with bipartisan congressional approval. The same laws and agencies used and maintained by President Obama and ardently defended by Democrats like Dianne Feinstein. I’ll give you that there are marginally more D’s than R’s opposed to warrantless surveillance, but I still find it difficult to find congressional candidates I can full-heartedly support because so many vote to support expanded executive powers in violation of our 4th amendment rights and expanded military budgets for the president to abuse.
If we were seeing aggressive action from the Democratic Congress to even attempt to curtail the president’s powers, then we could have this conversation. As it is, for all the crying out about Trump, all I am seeing is partisan feces hurling.
I would argue that our higher number stem from that Biogen conference in February that gave the virus a head start here rather than a “lenient” approach to shutting down. Doesn’t feel lenient when you were one of the first to miss a paycheck.
I’m sorry to hear that, Chistopher.
Yes I am in a privileged position with WFH during quarantine that is much more like an extended vacation than any kind of hardship.
However, here is what I mean by “lenient”: I can go outside walking, biking, or driving anywhere. Nobody is going to stop and check if I am out on essential business or trying to maintain sanity, in contrast to lockdown conditions in some other countries and, at least officially, in some other states. In the city one may get fined for not wearing a mask, but I have yet to hear of this happening. All the social isolation and staying at home is *totally voluntary*. Many local restaurants are open for take-out. Major stores selling a lot more than just groceries are open. The Craigslist marketplace is almost as active as ever. Going for a walk through Davis Square, Somerville (don’t do this!) feels just a little strange because everyone is wearing masks, but otherwise just a little less crowded than normal for a weekday. I rode by a gardening store/nursery in Winchester the other day and the parking lot was totally full of people preparing to decorate their yards for the summer.
@lenience:
As I’ve been harping on here for weeks now, the fundamental premise of imposing the same measures on each of the 351 cities and towns is egregiously broken.
Our laws and regulations regarding smoking have long reflected the reality that somebody standing next to a gasoline pump or underneath an aircraft being refueled simply CANNOT light up a cigarette. We correctly take a less stringent approach to a smoker who lights up in a non-smoking outdoor dining area, and we so far correctly protect the right of every homeowner to smoke cigarettes in their own home. These different standards reflect the clear understanding of different risk scenarios.
I think we must do something similar with our COVID-19 measures. Walking around a grocery store in Middlesex or Suffolk county without a mask should be treated as a serious offense, comparable to lighting up under a fueling 747 filled with passengers. It is criminal negligence that endangers everybody in the community. The same is not true for, for example, Franklin county.
Middlesex county had 17,589 cumulative cases as of May 10. Franklin county had 294 cases as of the same date.
I suggest that our public policy should reflect that reality. I think the state government should be providing data, tools, and expertise to our cities and towns, together with rigorous benchmarks based on solid epidemiology, for what steps should be taken by each town.
We already do this for severe weather events. When a tornado warning is issued for Springfield, we do not require every person in the state to immediately seek shelter in a basement.
FWIW, I assume you’re talking about Mahoney’s in Winchester. A large portion of those customers are people preparing their gardens for vegetables — so that they don’t have to go to grocery stores every week. The shoppers in Mahoney’s are practicing social distancing and wearing masks. The grounds are full of security personnel who are ensuring that customers follow the guidelines. Checkout lines are carefully managed, just as they are in grocery stores.
Similarly, at least some of the people walking in Davis square are, like yours truly, walking to the B-Fresh or to McKinnon’s Meat Market. Since any of the millions of us who live in urban areas cannot grow our vegetables and raise our own meat, safe access to such groceries truly is essential. I must get my groceries somewhere. If I go to one of the major markets like Stop-And-Shop, I have to wait in a long line — prolonging my exposure, and therefore increasing the risk, even at 6-foot intervals. I have to do my shopping in a more crowded interior space. I have to do this more often for the same needs because the shelves are typically stripped bare of at least half of what we use.
I suggest that my once a week 30 minute visit to B-Fresh and McKinnon’s presents much less risk to my neighbors than the two or three two to three hour trips to big grocery stores for the same items.
I think that one aspect of dealing with all this is to therefore be more charitable to our neighbors, and less eager to jump to derogatory conclusions about people based on stereotypes, appearances, and neighborhoods.
That’s easier to do with good government data and a government who strives for reasonable policies based on that data.
The first amendment guarantees the right to peaceable assembly and free exercise of religion. Though technically it is worded as “CONGRESS shall make no law…” it has long been held through the incorporation doctrine construed from the privileges and immunities clause of the 14th amendment that states are also bound by the restrictions placed on governments by the Bill of Rights. Similar protections are also afforded by the state constitution, which also says, “The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.” This says to me that if we absolutely must fudge these things the legislature must pass a specific law rather than the Governor issuing orders on his own authority.
When you say that no more than 10 can gather you are very much abridging the right of assembly and when you include houses of worship in that restriction you are abridging free exercise as well. The meetings I normally attend are either of a political or religious nature and I would argue that those constitute the highest scrutiny in a free society. In MA the Massachusetts Government Act (one of the “intolerable acts”) banned political meetings and led us one more step toward revolution against the Crown. While I’m happy to assume Gov. Baker is acting in better faith than his colonial predecessors, in order for rights to mean anything they must be enforced against the good people who seek to abridge them for “good” reasons just as strenuously as against those who might seek to do so for obviously bad reasons. This is the same logic that suggests when it comes to criminal justice the only way to be sure the innocent are protected is to guarantee that even the most obviously guilty of the most heinous acts are afforded a vigorous defense. As this diary and responses allude to, there is no more exception to the Constitution for pandemic than there is for terrorism.
Thanks for the detailed response, Christopher. It’s often a relief to come to BMG for more thought out criticism than your typical internet comments. I totally agree that we need to be vigilant and critical and prioritize our rights, but I am still unsure of what I would want the MA gov’t to be doing differently. More in response to Tom’s comment above.
I was marching from Copley Square to Harvard Square along MA avenue the day after the event. I attended interfaith prayer services at Trinity Church in the immediate aftermath, led by celebrants that included the Episcopal Bishop of MA at the time (the late Tom Shaw).
Where were you?
In middle school? I went to my fair share of anti war protests later on, lot of good they did.
My point is, this is a far more credible threat and the kinds of “rights” we are being asked to give up are really privileges compared to what was sacrificed back then. Nobody is being tortured or detained without trial over this, no poor soldier is giving up their life.
What’s different is the sacrifices once asked of working people to save the affluent from the bogus threat of terrorism are now being asked of the affluent to save the working class from the real threat of this pandemic. This is all a dress rehearsal for climate change folks, and we are not getting a passing grade.
I wouldn’t equate your noble protest with the anti-science protestors who are knowingly spreading the virus in the middle of a pandemic.
At least we have plenty of warning about the climate crisis and I can think of plenty of policy changes we can and should enact that have no bearing whatsoever on constitutional rights. Peaceable assembly is a RIGHT enumerated in the Constitution. I don’t understand why you use scare quotes or call it a privilege.
I fear that your youth is showing.
As soon as the forced quarantines start, in the name “public safety”, I’ll bet you dollars to donuts that we’ll see torture and “detainment” without trial if the current administration is still in place. They’ll use the excuse of Covid-19 to haul away targeted minorities into “quarantine” camps. Do you think ICE agents will hesitate to use waterboarding on immigrants who refuse to give the names of who they met with in the preceding two weeks?
I agree with you that this is a dress rehearsal for climate change. Locking down entire rural counties that have a handful of cases is like seizing property on high ground a hundred miles away from any body of water to protect it from rising sea levels.
Granting even more authority to a government that is already abusing its power is self-destructive lunacy. The government-run “contact tracing” you apparently promote is literally the equivalent of tattooing people’s arms.
I really can’t believe that you are describing the right to assemble and protection from unreasonable search as a “privilege” to be surrounded by scare quotes.
Nobody is attacking their right to protest. I am attacking the wisdom in their protests and arguing that yes, they are protesting for privileges and not civil rights. There is no constitutional right to golf. There is no constitutional right to shop in a mall. There is no constitutional right to go to a restaurant without wearing a mask.
So I think we should take a step back and look at who is protesting. Largely a white, armed, anti-government, anti science minority that was silent about bad water in Flint and is now protesting an elected governments measured response to a crisis that has claimed thousands of lives in their state. The majority of those lives are poor and black. So I am asking why they seem to prioritize their privileges over the lives of their fellow citizens. That is ultimately the choice the “reopen now” minority is intimidating governments into making. I strongly oppose that choice.
Since I last posted here my co-workers father in law, the same age with some of the same pre-existing health conditions as my own dad, died of the virus. I now personally know 5 people who have lost someone because of this. Today’s Times is publishing a list of one thousand names to commemorate the 100,000 lost. Lives our President has chosen not to mourn, lives the families themselves cannot mourn for safety reasons. So this is a real and present danger to all of us, no human is immune.
I think it’s a time that calls for shared national sacrifice and not hand wringing about the middle class privileges temporarily abated by the need to socially distance ourselves.
We’ve made great progress. My wife’s nursing home could be Covid free in a month’s time, and her floor is the new recovery unit. Her hospital is also getting an influx of patients who are off ventilators and recovering. There is light at the end of this tunnel. A real president would mourn the dead, Be hopeful about where we can go together, be honest of what’s required to get there. We lack such leadership right now.
@jconway:
Please understand that I strongly agree with most of the sentiments you express here — although I really must remind you that the right to pursue happiness is arguably the CORE freedom guaranteed by our founding documents. When you characterize that as a “middle class privilege” you tread dangerously close to the envelope that Christopher is concerned about, and me to a lesser extent.
I’m trying to practice one of the foundations of organizing — “try to view the situation through their, rather your, eyes.” This pandemic is striking hard and near to you and me. For us — you and me — it is personal. For Americans in nearly the entire US, that is just NOT true.
From a political perspective, if nothing else, please try to understand that the same is not true for the people who are protesting in Michigan.
There most certainly IS a constitutional right to shop and to go about in public wearing or not wearing pretty much whatever you please. The ACLU has fought MANY battles in my lifetime about issues like wearing or not wearing an American flag, wearing or not wearing religious clothing, wearing or not wearing clothing with political messages, and so on. I think they would loudly disagree with your assertion that there is no right to go out in public without a face mask.
As I tried to say elsewhere, I think we should draw a distinction between no right at all (which is what I hear you advocating) and regulating a right in order to address clear threats to public safety or to others.
The political issue that I fear you ignore is that for virtually EVERY American outside the 20-odd “hot-spot” counties, this pandemic crisis is “somebody else’s problem”. In most of America, by area, the virus has not itself touched any resident, and certainly not in the way it has affected you and me.
Yet the economic effects of the response to the virus have hurt every American. Empty shelves, cancelled flights, pervasive unemployment — those hit every one of those counties that have essentially no COVID-19 issue.
THAT is the political issue that I fear we are addressing badly. Even if we believe ourselves to be morally correct, telling the people I’m talking about that they are committing a grievous wrong by not wearing a mask is approximately as effective as telling them that having sex outside of marriage is a sin. It’s not going to win many votes, and it’s not going to change much behavior.
As viciously cynical as it is — and it is among the most cynical sentiments I’ve heard anybody express in public in my lifetime — it is nevertheless true that the COVID-19 pandemic is primarily killing Democrats.
We have an administration and a Senate majority who have explicitly reminded their base of that. We ignore both aspects of that — its evil cynicism and its truth — at our extreme peril.
Don’t disagree there either, but I also
Don’t think letting rural America Dictate
the terms of reopening is a wise or fair thing to do. They already got to
Pick the president who got us into this mess, they will have to live with how the parts if America where the Real
majority actually lives solves this on their own terms without any guidance from
POTUS.
I agree. That’s why I think this is a very tough problem.
The answer you and I seek requires commonly-shared values about things like the sanctity of life. When the deplorable residents of red-state (and rural, at least by NYC and Boston standards) so eagerly dehumanize literally everyone who doesn’t look like them, they will not join that commonly-shared consensus.
There is a moral ROT in the “heartland”, and we are seeing that the deaths of a hundred thousand people don’t mean a blessed thing to those deplorable heartland residents.
As always, I leave unanswered the question of what the “deplorable factor” is. I don’t see how any person who shares even a little bit of America’s core values can still support Donald Trump and the GOP.
I must say if 100K have died and you know 5 of them you seem to know more than your share. I’m truly sorry about that. I can only think of two people I know (and even they aren’t that close) who had the virus at all, one mildly symptomatic and one asymptomatic, both now recovered. Here in Lowell, LGH has now closed its makeshift satellite location on the UML campus judging it no longer necessary. Please do not judge all of us who have legitimate concerns by those with the worst motives.
I took a step back from that criticism since I did not like where it was going. I think where we do agree is we desperately wish this did not get as bad as it did and we want to return to normal and are tired of the feeling of passively waiting for the all clear. I’m donating blood Thursday, it’s a way to get out of the house and do my part to help folks on the front like my wife. She’s been in the best spirits she’s been in months, which I take as a good sign we will see our way out of this. I got to see some students today when I dropped off their signs. I really hope we can have a real graduation for them in July, even if it’s on the beach, it’s gotta be in person. The senior class is insisting on something real, and I feel we owe it to them. My principal announced the possibility of starting the year with remote learning and that might be my own point of no return where I join your revolt. I pray we don’t get there, which is why I wish we had leaders who could tell us the truth and also let us know our sacrifices we’re making a difference.
From what I’m hearing education officials want to move heaven and earth to open school in September. I guess the unknown now is that potential second wave, but OTOH if we see that coming maybe we have time to consider a different strategy. I’m glad I’ve seen so much evidence that the class of 2020 is acting resilient and taking this in stride. Charley has a post up about how everyone came together to fight WWII by making certain sacrifices. I wish I could feel like I’m part of something bigger like those two generations, but I don’t.
I fear the second wave is much more than potential.
Our insistence on treating all areas the same means that the understandable impatience of residents in quiet areas is driving the premature relaxation of crucial restraint in the hot spots.
It’s the same dynamic as state representatives in Western MA who refuse to fund public transportation because they “don’t benefit”. The result is a bad outcome for the entire state.
In WWII, the government — led by FDR — provided vision, leadership, and concrete goals that the public could and did embrace.
We have no such government today.
Some of us thought the original shutdowns were overblown and now others think the reopening is rushed. So I guess in politics as in physics, for every action there is an equal and opposite reaction.
@equal and opposite
There was no data at the beginning and the shutdown was our only option.
We now have increasingly detailed information, updated daily, about where and how rapidly the pandemic is expanding and contracting.
ONE ill-timed Biogen conference spurred an explosion in COVID cases and made Massachusetts a hot-spot. We now understand in some detail how that happened.
There is no data to support the relaxation of social distancing and various shutdowns in Middlesex, Suffolk, and Essex county (and probably others). The data that’s there suggests, at least to me, that it will bring about a second wave (and more after that until we have an effective vaccine).
We should be making these decisions based on science rather than politics, economics, and impatience.
The shutdown was never overblown. It was in some ways too little too late. That said, I think had we shutdown earlier and smarter we would be open today. We should’ve closed the borders and banned travel sooner, had enough tests and PPE to stop the spread, and been Wuhan/S. Korea strict from the jump.
That’s what Taiwan, NZ, and Australia did. My pregnant friend in Taiwan is posting dates with her husband to restaurant and breweries on Instagram. It’s like a whole different world. It’s because they were strict at the start.
I still don’t like complete travel bans and border closures because that seems to run against American values. I do think that everyone attempting to enter the country since the beginning of 2020 should have been tested. Anyone who tested negative could come on in; those who tested positive could enjoy our hospitality for a couple of weeks.
See and I originally thought the Biogen conference was a good thing in a sense that unlike other places we knew where our problem started. Why could we have not isolated the attendees specifically as opposed to shutting down the whole state? We should have tested and traced from there.
@Biogen a good thing:
By the time we knew the Biogen conference was a problem, it was too late. The attendees had already spread the infection to their several communities.
Testing and tracing would have helped had we been able to.
Our entire disagreement is because I really want you to know you are making a difference and doing the right thing is saving lives. Truly. I want that solidarity to spread.
What’s crazy to me is how much money and lives were poured down the drain to avenge 9/11 and prevent another one, which ultimately cost a tenth of the annual deaths from gun violence and a 30th of Covid deaths. I’ve had multiple students lose grandparents, co-workers lose parents and in laws, and my wife lost co-workers. This has touched me so much more than 9/11, not too belittle those deaths either, but the responses have been wildly disproportionate. Arguably an overreaction in hindsight for 9/11 and an under reaction in real time for this pandemic.
You didn’t live in Manhattan on September 11, 2001.
While I agree with you that our reaction to 9/11 was wildly disproportionate, I didn’t live in Manhattan when the WTC came down. There are several thousand family members for whom it was very personal.
I lost a coworker at Millennium who was on one of the planes. Daniel Lewin, a founder of Akamai, was killed in the 9/11 attacks. Daniel was a close colleague and good client of my best friend.
This pandemic is going to continue for a LONG time. We are almost certainly relaxing restrictions in hot spots too soon, and I expect a resurgence in the fall that is likely to be more intense that the first wave.
We have time to prepare. We have time to identify the key parameters that matter, and we have time to put systems in place to monitor them. Angela Merkel shows us that it can be done.
I think we have to do different and better than just beat the face-mask-and-lockdown drum harder.
I’m 100% in agreement and Merkel is a good model for the kind of leadership I want to see. For what it’s worth the commonwealth is doing voluntary contact tracing and already has had over 30,000 people come forward who volunteered and comply with it. I think we should celebrate people and actions like that rather than focus on the loud armed minority making a mockery of the country.
You and I are about 90% in alignment on what we need to do and where we need to go, I’ll take it.
Some technology approaches to contact tracing are emerging that do the job and still protect privacy. I’m totally on-board with such approaches.
I think we got lost in the weeds a bit with Hyperbolic hypotheticals and bad analogies. I’ll take ownership over my fair share of that. I think we should maximize what we can do with volunteers before resorting to mandates. The last thing I want to do right now is empower police.