People across the political spectrum appear willing to forego their civil liberties if that will help slow the spread of COVID-19, a recent survey has found. Charles Crabtree examines the implications, noting that constitutional violations must be recognized for what they are, lest they become the new normal.

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In contrast to Japan, many countries have taken extraordinary measures to slow the COVID-19 pandemic. A good number of those measures limit individual freedom and may also violate rights guaranteed by national constitutions. Italy’s complete lock-down, enforced by criminal penalties, probably violates the Italian constitution. Norway passed an emergency law giving the government unprecedented temporary power to override the constitution and national laws in service of slowing the virus. Meanwhile, without consulting the Israeli parliament, Prime Minister Benjamin Netanyahu enacted emergency regulations allowing for extraordinary surveillance power to combat the virus. Also Hungary’s Victor Orbán will likely be able to rule by decree for the foreseeable future.

The United States, among other countries, has faced this same dilemma: To what extent should the individual rights and the constitution be violated to fight the coronavirus? Lockdowns, especially ones that cover people without the virus, are constitutionally questionable, at the very least. Newark’s threat to prosecute people who spread false information about the virus could violate the First Amendment. Some people have challenged the government’s power to force a San Jose gun shop to close, citing their right to arm themselves. Perhaps most alarming, the US Justice Department “has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies.”

To assess how Americans weigh the tradeoff between civil liberties and halting the spread of coronavirus, I conducted a survey experiment with several coauthors in March, right around the same time that state and local governments were beginning to implement the most restrictive policies.[1] The findings from this experiment reveal that Americans are remarkably willing to tolerate civil-rights violations if doing so helps fight the virus. Surprisingly, this is true regardless of party affiliation.

Broad Bipartisan Support

In our study, we presented a nationally representative sample of 3,000 US residents with eight possible policy responses to the virus, all of which are questionable under the Constitution, including forced quarantine in a government facility, criminal penalties for spreading misinformation, banning certain people from entering the country, and conscription of health workers. We also told our sample that public-health officials had reviewed the policies and determined they would save lives.

A majority of those surveyed supported all eight of these policies, most by considerable margins. The proposals with the lowest support are seizing businesses and banning all people outside the country from entering; but these policies still have 58% and 63% support, respectively. The proposals with the highest levels of support are banning non-citizens from entering the country (85% support) and conscripting people to work (78% support). Both of these policies burden a defined minority of the population—non-citizens and healthcare workers, respectively—so it is probably not so surprising that large majorities support them. But criminalizing speech based on its content, an idea antithetical to modern American constitutionalism, is also very popular: About 70% of Americans supported restricting people’s ability to say things that may constitute misinformation. And even when we explicitly told half of our sample that the policies may violate the constitution, there was majority support for all eight of them—even the speech restrictions.

Perhaps the most striking feature of our results is the broad bipartisan support for these liberty-restricting policies. Like other surveys, we found a huge gap between Democrats and Republicans in approval of President Trump’s handling of the virus: 34% of Democrats and 88% of Republicans. One might have reasonably concluded that different policy preferences were driving these responses: that Democrats want aggressive government intervention, which they feel the president has failed to deliver, while Republicans—encouraged by Trump’s early dismissal of the pandemic—prefer a wait-and-see or laissez faire approach.

But our findings suggest that’s not what’s happening. Democrats and Republicans are both willing to sacrifice civil liberties to fight the virus. The two groups show almost identical levels of support for detaining sick people in government facilities, for conscripting people to work, for prohibiting the spreading of misinformation, and for banning all people from entering the country. Overall, 74% of Democrats supported each of the eight proposed policies on average, while 71% of Republicans did.

This small difference contrasts with several recent survey findings showing Americans with different political affiliations responding to the virus very differently. For example, The Atlantic reported in March 2020 how blue states are responding more aggressively to the virus than red states, and an NBC News/Wall Street Journal poll found Democrats were 28 percentage points more likely to be concerned about someone in their family getting COVID-19 than Republicans. Even so, both sides of the political spectrum are convinced that extraordinary measures are needed to save lives. 

“Parchment Barriers”

This type of agreement across party lines is remarkable. On many—if not most—issues there tends to be wide disagreement by Republicans and Democrats. According to research conducted by Pew last year, there is, on average, a 39 percentage point gap across 30 political values items between supporters of the two main US political parties. For example, nearly 9 of 10 Democrats or independents who lean toward the Democrats support stricter restrictions on gun ownership, while only one third of Republics and Republic-leaning independents support these measures.

Generally, we might like there to be greater consensus across Democrat and Republican supporters. One benefit of this could be decreased partisan gridlock in the national government. When it comes the policies we examined, though, this might be a case where consensus across parties could prove problematic. Often, efforts to roll back civil liberties face political-party opposition, but now, bipartisan support for rights-restricting COVID-19 policies could smooth the path for constitutional erosion.

Founder James Madison predicted as much when he described constitutional rights as “parchment barriers:” easily transgressed when the majority is so inclined. And indeed, there are numerous examples of core liberty violations in the face of security threats: the Alien and Sedition Acts, Japanese-American internment camps, and the torture memos. After the threat has subsided, Americans must recognize any constitutional violations for what they were, lest they become the new normal.

[1]A similar study with 2,500 Japanese residents was conducted in February. The results of this survey will be posted here next month.