3-Minute Civics: Can my constitutional rights be limited?


For the Monitor

Published: 05-10-2020 7:00 AM

Everyone knows they have constitutional rights. But what is sometimes less well understood is that these rights have limits.

Wait, what?

It’s true! Let’s start with defining what constitutional rights are and are not. Constitutional rights refer to your rights vis-à-vis the government. The U.S. Constitution guarantees the rights of its citizens with respect to the U.S. government, and the New Hampshire Constitution guarantees the rights of its citizens with respect to the New Hampshire state government.

In the event of a conflict between the two constitutions, the N.H. Constitution may grant its citizens greater rights than the U.S. Constitution, but it may not be more restrictive than the U.S. Constitution. Importantly, however, neither constitution deals with your rights with respect to private parties. Those matters are governed by statutes and other law – which themselves must be written in a constitutional manner or face being struck down by the courts.

For ease of discussion, I’ll use a couple of rights from the First Amendment to the U.S. Constitution as examples for the rest of this column. The principles apply generally, however.

Some limits on constitutional rights are well established. Consider the First Amendment’s guarantee of freedom of speech. In our democracy, we can speak freely. We can even criticize the government at every level – a freedom that is forbidden to people in a number of countries around the world. We rightly treasure this guarantee in our Constitution.

But as just about everyone knows, you can’t shout, “Fire!” in a crowded theater unless there actually is a fire. Why? Because such an act would result in such danger to the public that preventing that danger overrides an individual’s right to that speech. In other words, the government has “a compelling state interest” in preventing this kind of speech.

Of course, the government isn’t saying that the word “fire” can’t be spoken in a theater at all, or that only you, individual reader, can’t shout “fire.” In fact people can casually discuss a fire, and the restriction is broadly applied; no one is permitted to shout “fire” without cause. The government is “narrowly tailoring” the restriction it has placed on freedom of speech, and it’s regulating the “time, place and manner” of the speech, not the speech or the speaker themselves.

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Let’s dip into the history we’re living right now for another example. The First Amendment also guarantees “the right of the people peaceably to assemble.”

Here in New Hampshire, as in most other states, we’ve been living for weeks under a stay-at-home order that also restricts the size of the groups in which we may gather. This is due to COVID-19, a highly contagious and deadly virus plaguing our state (and the world). This order obviously places a serious restriction on our freedom of assembly. Is this restriction on this right constitutional?

First, let’s stipulate that for the most part, courts haven’t ruled on this to date, so we need to look at past court rulings on similar cases to see if we think such a restriction might be upheld. So let’s consider whether this limitation on the freedom of assembly meets the standard laid out above. Does forbidding groups of more than 10 people from gathering and ordering people to stay at home so they don’t contract a highly contagious, deadly disease for which there is neither a cure nor a vaccine serve a compelling state interest? Yes. The state interest is in protecting public health, and I believe courts would uphold this under present circumstances.

However, if circumstances change – the virus becomes less contagious or more mild, or an effective treatment is found, for example – the answer to that question could change.

We could do this all day, but I’m running out of column space.

Let’s end by taking a step beyond the law and into civic responsibility. At the heart of any good law is a recognition that our government should both be protecting our individual rights and looking out for our collective benefit. These two interests are frequently in tension, and the dance between them is how our laws get made, applied and challenged.

But we shouldn’t need any law to tell us that in a highly contagious pandemic, our individual actions can have serious consequences for people besides ourselves, and we should care about that. We’re all part of a community – usually a number of communities defined in different ways. And neither constitutions nor court rulings should be required to encourage all of us to consider the ramifications of our actions on others before we act.

(Tracy Hahn-Burkett lives in Bow.)