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Maine is not immune from a virus that knows no borders as it sweeps across the world, stealing the lives of loved ones. To keep ourselves safe, we have also lost many of the things we hold dear, such as graduations, summer fairs and family get-togethers.
Every state governor has always had extensive emergency powers, and when they are invoked following hurricanes, tornados and other disasters, no one blinks an eye. Now we face the largest worldwide pandemic in more than a century, which has killed nearly 100,000 people in the United States and sickened more than 1,670,000 people in the United States (and more than 5,500,000 worldwide). A small minority nonetheless have gone to court to claim that Mills is violating their constitutional right to do whatever they want whenever they want, effectively claiming a constitutional right to endanger the rest of us.
These lawsuits lack merit and mangle our national heritage. In the debate over whether to send troops to fight the Revolutionary War, Patrick Henry famously said, “Give me liberty or give me death!” Unfortunately, the critics challenging Mills’ emergency orders fighting the COVID-19 pandemic essentially misquote Henry, arguing instead, “Give me liberty and give me death!”
Fortunately, the Constitution strikes a different balance.
This is not a partisan issue. The first stay-at-home order was issued by Ohio Republican Gov. Mike DeWine, and similar orders have been issued by Republican governors in Maryland, Massachusetts and elsewhere. Both Republican and Democratic governors have followed the direction of scientific experts, such as Anthony Fauci, to impose temporary emergency orders to stop the spread of an easily transmitted killer virus that has no vaccine.
As the emergency orders flatten the curve, Mills and other governors must walk a dangerous tightrope to loosen the restrictions. If loosened too quickly, there could be a second deadlier wave of COVID-19 infections.
This is the lesson of the 1918 influenza epidemic, which sickened more than 500,000,000 people worldwide and killed more than 675,000 Americans (including 5,000 in Maine), with the deadliest part occurring in a second phase when people thought it was safe to return to normal.
If another, bigger, deadlier wave hits this time, all of the stimulus money in the world will not convince people to visit Maine, or even to leave their homes to work or shop.
Although most people approve of these common-sense approaches, a small vocal minority disagrees in constitutionally protected and loud protests, and in the courts. A Maine federal judge upheld Mills’ emergency orders over a constitutional challenge from a pastor in Orrington, and numerous other courts have rejected similar lawsuits. As U.S. District Court Judge Nancy Torresen noted in the Orrington case, “Although a government cannot use a health crisis as a pretext for trampling constitutional rights, the Supreme Court has long recognized that a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
Courts recognize that governors must have emergency powers to protect their citizens because it is not a simple choice between life or liberty. Years ago, Supreme Court Justice (and former chief prosecutor at the Nuremberg Nazi war crimes trials) Robert Jackson wrote, “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
We need only look at our former everyday lives to realize that Jackson was right. Liberty did not mean that restaurants that fail health inspections can serve diners. Liberty did not mean that churches that fail building codes can hold worship services. Mills should be congratulated, not condemned, for balancing life and liberty in the face of a worldwide pandemic.
Peter Brann is the former Maine state solicitor and James Tierney is a former Maine attorney general. They teach a class, The Role of the State Attorney General, at Harvard Law School.