On Thursday, the governors who make up a compact of Northeastern states announced that their respective lockdown orders had been extended yet again. New York Governor Andrew Cuomo revealed that extraordinary statewide business closures and shelter-in-place directives would remain in effect until at least May 15. Other states in the compact followed his lead if they had not extended their lockdowns already. Not to be outdone, New Jersey Governor Phil Murphy declined to even be held to a date. For the Garden State, lockdown is in place “until further notice.”
From closing state and county parks to the arrest of people who are driving others to destinations that constitute “non-essential trips,” New Jersey’s governor has gone above and beyond in the effort to intimidate his state’s citizenry into compliance. On April 3, police in the town of Lakewood broke up an Orthodox Jewish funeral of a local rabbi outside a synagogue, charging 15 people with violations of the state’s lockdown orders. This week, the governor had the good sense and graciousness to join Fox News Channel’s Tucker Carlson—an adversarial interviewer to be sure, but one with a large and important audience beyond the conventional reach of a Democratic governor—to explain where he believed he got the authority for such sweeping actions. It did not go well.
Asked by the host if he had consulted with legal counsel before abridging one of the most fundamental rights enshrined in the First Amendment, Murphy assured Carlson that he had. And yet, he “wasn’t thinking of the Bill of Rights” at the time. “We looked at all the data and the science and it says people have to stay away from each other,” he continued, “we do have broad authority within the state.” It was, to be kind, a bad answer. But that raises the question: Is there a better one?
Of course, the governor could have wrangled his way out of the bind Carlson put him in by launching into a dissertation on “time, place, and manner” restrictions on certain constitutional rights that render them anything but absolute. He could have cited his own executive orders (some of which are convoluted and ripe for a challenge) that extend broad authority to local police forces. Some dumbfounded observers speculated that the governor failed to delve into these complicated and debatable legal matters because he was simply unprepared for this rather obvious challenge to his authority, but that’s an unsatisfying explanation. More likely, Gov. Murphy did not dwell on the question of the Constitution because no explanation for the violation of such a viscerally felt, intuitively understood freedom as the right to worship and associate freely would satisfy skeptical viewers. There is no good answer to Carlson’s question.
Among those for whom no public guidance or executive order is too draconian to mitigate this threat, the governor’s response was probably quite sensible, if a bit awkwardly stated. For the other side of the equation, which regards indefinite lockdowns—to say nothing of the rights they curtail and the suffocating effects they have on their essential livelihoods—as near-suicidal, no justification would suffice. These two groups which generally (but not perfectly) fall along partisan lines have come to focus on a variety of governors who serve as avatars of all that’s wrong with America in lockdown.
Michigan’s Gretchen Whitmer is another state-level public official who has drawn the wrath of those who do not believe her lockdown orders are calibrated to address the crisis without imposing undue hardships on Michiganders. Citizens of her hard-hit state are not allowed to travel to multiple in-state residences, or to visit friends and relatives. They cannot use a motorboat. All stores dedicated to the sale of carpeting, flooring, furniture, garden centers, plant nurseries, or paint must close or cordon off relevant aisles. There has been a substantial backlash to these orders, ranging from protest to civil disobedience and noncompliance. But for a subset of lockdown supporters, this predictable human response is not Whitmer’s fault. Rather, an unruly public that doesn’t know what’s best for them is to blame.
The objects of hate that preoccupy this contingent are the primarily Republican governors who waited far too long to implement policies that would have curtailed the spread of this virus. Florida Gov. Ron DeSantis is one preferred punching bag. He resisted calls to make federal social-distancing guidelines mandatory, leaving the matter to local municipalities for several crucial weeks. The results have been tragic. DeSantis’s government has been rocked by public feuding over the efficacy of wearing masks in public, and it has offended not just effete sensibilities but good sense by declaring the WWE an “essential” business.
South Dakota’s Gov. Kristi Noem is another Republican governor who took a more hands-off approach to the crisis and is now taking a beating from political media. “South Dakota is not New York City,” the defiant governor told reporters in defense of her refusal to resort to a statewide lockdown order (though many businesses are closed by executive order). And though she maintains the Mount Rushmore State has seen its COVID-19 cases peak, she’s been attacked for presiding over a state with “one of the nation’s largest coronavirus hotspots”—a vital meat-packing plant that was host to an astoundingly large outbreak.
These and a handful of other state executives have been deemed by the Associated Press the “holdout governors,” and the coverage their governance has generated has not been favorable. But where there is much to criticize from both the most reluctant and overzealous states, there’s plenty to praise as well. There is no state in the Union that has gotten this moment perfectly right. Contrary to their critics, no governor has taken an entirely laissez-faire approach to this crisis. And when certain states have violated civil rights (as some have, according to the courts) they did so erring on the side of public health. This is all improvisatory, and everyone is making mistakes along the way.
But to note this nuance is to miss the point of the controversy. These governors are mere tokens, personifications of a debate raging within the body politic as two entirely valid competing interests struggle to establish a mid-pandemic equilibrium.
What is the proper balance between the preservation of life and the freedom to ensure that it’s a life worth living? Only the most callous or radicalized social critic (and there are radicals on both sides of the matter) would sacrifice one consideration for the other. Only the most blinkered or jaded would pretend the trade-offs associated with their preferred method for dealing with this crisis were not unendurable for many. These concerns are of equal merit, and the happy medium between them is forever shifting along with conditions on the ground in each of the nation’s 50 state laboratories. Gov. Murphy didn’t have the right answer to Carlson’s question because that answer doesn’t exist. We won’t know it until this is all over.