Lawsuits demanding that stay-at-home orders be repealed have been filed this week in Maryland, Minnesota, and Nevada. In Michigan, a Family Dollar store security guard was shot after telling a customer to wear a face mask, which is mandated throughout the state for all retail stores. In Oklahoma, McDonald's employees were shot at for asking customers to leave the dining area, which was closed due to coronavirus restrictions. Small but media-gobbling gatherings of armed protesters continue to gather, demanding that state stay-home orders be rescinded, using lethal weaponry to demonstrate a power their numbers cannot convey. Members of the state Supreme Court in Wisconsin, hearing arguments in a case challenging the governor's safer-at-home rules, invoked the language of "tyranny" and the Japanese internment to describe the current public health efforts to contain a pandemic. President Donald Trump has tweeted support for the armed militants ("These are very good people, but they are angry. They want their lives back again, safely!") and demanded the "liberation" of the states. Defiant public intellectuals embrace the general democratic principle that being a "grandma killer" is a small price to pay for resuming dentist visits and family trips to the zoo.
It's certainly not the case that the federal Constitution protects everything you feel like doing, whenever you feel like doingit.
The words freedom and liberty have been invoked breathlessly in recent weeks to bolster the case for "reopening." Protesters of state public safety measures readily locate in the Bill of Rights the varied and assorted freedom to not be masked, the freedom to have your toenails soaked and buffed, the freedom to open-carry weapons into the state capitol, the freedom to take your children to the polar bear cage, the freedom to worship even if it imperils public safety, and above all, the freedom to shoot the people who attempt to stop you from exercising such unenumerated but essential rights. Beyond a profound misunderstanding of the relationship between broad state police powers and federal constitutional rights in the midst of a deadly pandemic, this definition of freedom is perplexing, chiefly because it seems to assume not simply that other people should die for your individual liberties, but also that you have an affirmative right to harm, threaten, and even kill anyone who stands in the way of your exercising of the freedoms you demand. We tend to forget that even our most prized freedoms have limits, with regard to speech, assembly, or weaponry. Those constraints are not generally something one shoots one's way out of, even in a pandemic, and simply insisting that your own rights are paramount because you super-duper want them doesn't usually make it so.
To be sure, a good number of these "protesters" and "pundits" represent fringe groups, financed by other fringe groups and amplified by a press that adores conflict. The data continues to show that the vast majority of Americans are not out on the hustings fighting for the right to infect others for the sake of a McNugget. Also, it is not irrational in the least to fear a tyrannical government capitalizing on a pandemic; it's happening around the world. But even for those millions of people genuinely suffering hardship and anxiety, it's simply not the case that all freedoms are the same. And it's certainly not the case that the federal Constitution protects everything you feel like doing, whenever you feel like doing it.
In a superb essay by Ibram X. Kendi in the Atlantic this week, we're reminded that there is a long-standing difference between core notions of what he calls freedom to and freedom from. The freedom to harm, he points out, has its lineage in the slaveholder's constitutional notion of freedom: "Slaveholders disavowed a state that secured any form of communal freedom-the freedom of the community from slavery, from disenfranchisement, from exploitation, from poverty, from all the demeaning and silencing and killing." Kendi continues by pointing out that these two notions of freedom have long rubbed along uneasily side by side, but that those demanding that states "open up" so they may shop, or visit zoos, are peeling back the tension between the two:
From the beginning of the American project, the powerful individual has been battling for his constitutional freedom to harm, and the vulnerable community has been battling for its constitutional freedom from harm. Both freedoms were inscribed into the U.S. Constitution, into the American psyche. The history of the United States, the history of Americans, is the history of reconciling the unreconcilable: individual freedom and community freedom. There is no way to reconcile the enduring psyche of the slaveholder with the enduring psyche of the enslaved.
The very idea that it doesn't matter what happens to the larger community, so long as the individual has unfettered freedom to do as he pleases, is not just a vestige of the slaveholder ethos. As Charlie Warzel points out this week, this has been the core animating theory behind the American gun rights movement: reduce the debate to an absolutist fight about freedom that eventually narcotizes an entire population into believing that the cost of true liberty is tens of thousands of avoidable gun deaths each year. Any effort to regulate anything within the vast space between "assault weapons for everyone on demand" and "reasonable gun safety" is cast as a dire step toward tyranny. As Warzel puts it, this leads to another version of freedom to, in this case, the freedom to either do mass harm or the freedom to insist that nothing be done about it:
This idea of freedom is also an excuse to serve one's self before others and a shield to hide from responsibility. In the gun rights fight, that freedom manifests in firearms falling into unstable hands. During a pandemic, that freedom manifests in rejections of masks, despite evidence to suggest they protect both the wearers and the people around them. It manifests in a rejection of public health by those who don't believe their actions affect others. In this narrow worldview, freedom has a price, in the form of an "acceptable" number of human lives lost. It's a price that will be calculated and then set by a select few. The rest of us merely pay it.
We now find ourselves on the precipice of a moment in which Americans must decide whether the price they are willing to pay for the "freedom" of armed protesters, those determined to block hospitals, and pundits who want to visit the zoo, is their own health and safety. Polls show that the majority of Americans are still deeply devoted to the proposition that their government can protect them from a deadly virus, and that they trust their governors and scientists and data far more than they trust the Mission Accomplished Industrial Complex that would have them valuing free-floating ideas about liberty over the health and indeed lives of essential workers, the elderly, and their own well-being, despite the president's recent insistence that this is what, all of us, as "warriors" must do. As Jamil Smith points out, this cultish view of "liberty" as demanding mass death in exchange for "liberty," as in "freedom to" is an assembly-line, AstroTurf version of liberty pushed by those who are already very free. "Their true goal, plutocracy, is the diametrical opposite of freedom," Smith writes. "It is a life lived to spite other lives, and often take advantage of them."
In the coming weeks, we will see some relatively small portion of Americans with great big megaphones and well-financed backers start to openly attack the selfsame health care workers who were celebrated as heroes just a few weeks ago. We will see attacks on people wearing masks and attacks on people lawfully asking others to wear masks. Some leaders will buckle under the pressure to rescind orders with claims that in choosing between liberty and death, they went with liberty. Others, like Michigan Gov. Gretchen Whitmer, will respond by insisting that the brandishing of guns inside the state Capitol is not, in fact, "liberty," and that if it is liberty and justice, it is hardly liberty and justice for all, but rather for a small minority of people who seek to define freedom as something they will seize and threaten and even kill for. A good rule of thumb for COVID-based discussions about "opening up" is that if someone is demanding it while threatening to hurt or kill you, you are probably not as "free" as they are, and that their project does nothing to increase freedom in America and everything to hoard a twisted idea of freedom for themselves.
When you hear someone demanding inchoate generalized "freedom," ask whether he cares at all that millions of workers who clean the zoos and buff the nails and intubate the grandmas are not free. These people are cannon fodder for your liberty. The long-standing tension between individual liberty and the collective good is complicated, and as Kendi is quick to point out, the balance often tilts, trade-offs are made, federal and state governments shift clumsily along together, and the balance tilts again. Nobody denies that individual liberty is essential in a democracy, but in addition to parsing whether we as a collective do better in providing the "freedom from" while also offering some "freedom to," it's worth asking whether those making zero-sum claims about liberty are willing to sacrifice anything for freedom, or are just happily sacrificing you.
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