Recently, the National Constitution Center hosted a symposium bringing together contributors from The Battle for the Constitution website—a joint project from the National Constitution Center and The Atlantic that features essays exploring current constitutional issues from all perspectives. Today we’re sharing the second panel of the symposium: a conversation on the key constitutional issues raised by the coronavirus crisis. Jeffrey Rosen was joined by scholars Deborah Pearlstein, Polly Price, and Adam White to discuss how coronavirus has impacted democracy and the forthcoming 2020 election, public health law, the functioning of government, and more.
Read The Battle for the Constitution including essays by these panelists here.
This program is presented in partnership with The Atlantic and in conjunction with The Battle for the Constitution website. It is also made possible through generous support from the John Templeton Foundation.
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PARTICIPANTS
Deborah Pearlstein is is co-director of the Floersheimer Center for Constitutional Democracy and professor of law at Cardozo Law. Her work on national security and the separation of powers has appeared widely in law journals and the popular press, including the University of Pennsylvania Law Review, the University of Michigan Law Review, the University of Texas Law Review, and the Georgetown Law Journal, as well as in Slate, Foreign Policy, the Washington Post, and the New York Times. In addition to developing impact litigation strategies and preparing multiple briefs amicus curiae to the U.S. Supreme Court, Pearlstein co-authored a series of reports on the human rights impact of U.S. national security policy.
Polly Price is the Asa Griggs Candler Professor of Law and Professor of Global Health in the Rollins School of Public Health at Emory University. A public health law scholar as well as a legal historian and citizenship and immigration law expert, she has published, lectured, and taught widely about immigration and citizenship, public health law and regulatory policy, federalism, property rights, and the judiciary. She is the author of two books and dozens of journal articles, book chapters, editorials, and reviews. Her forthcoming book, Plagues in the Nation, explores the ways epidemics have shaped US law and continue to pose challenges for disease control in democratic societies.
Adam White is an assistant professor of law at George Mason University’s Antonin Scalia Law School and executive director of the law school’s C. Boyden Gray Center for the Study of the Administrative State. He also is a research fellow at Stanford University’s Hoover Institution, and a public member of the Administrative Conference of the United States. He has served on the leadership councils for the Administrative Law sections of both the American Bar Association and the Federalist Society, and he serves on the boards of two nonprofits: LandCAN (for conservation on private lands) and Speech First (for free speech at universities).
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- The Battle for the Constitution
- Deborah Pearlstein, The Atlantic, “Zoom Congress Is Perfectly Constitutional”
- Adam White, The Atlantic, “The Flaw in the President’s Newest Constitutional Argument”
- Polly Price, The Atlantic, “How a Fragmented Country Fights a Pandemic
This episode was engineered by the National Constituiton Center's AV team and produced by Jackie McDermott and Tanaya Tauber.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center, the podcast sharing live constitutional conversations hosted by the national constitution center. I'm Jackie McDermott, the show's producer. We recently hosted a symposium bringing together contributors to The Battle for the Constitution. A website that features essays exploring current events from a constitutional perspective.
The site is a joint project from the National Constitution Center and The Atlantic. Today, we're sharing part two of the symposium, a conversation on the constitutional issues raised by the coronavirus crisis. Jeffrey Rosen was joined by scholars, Deborah Pearlstein, Polly Price and Adam White. Here's Jeff to get the conversation started.
Jeffrey Rosen: [00:00:42] All right friends. It's now my great pleasure to welcome our next panel, which is also an amazing group. Adam White is assistant professor of law at George Mason University's Antonin Scalia law school, where he directs the law school C. Boyden Gray Center for the Study of the Administrative State. Debra Pearlstein is professor of law and co-director of the Floerscheimer Center for Constitutional Democracy at Cardozo Law school and Polly Price is the Asa Griggs Candler Professor of Law and Professor of Global Health in the Rollins School of Public Health at Emory University, Adam, Debra, and Polly. Thank you so much for joining!
Adam. Let's start with you. There are so many cases currently pending in the lower courts about civil liberties and the Coronavirus. They include cases involving religious liberty and the Supreme Court just decided a non-Corona religious liberty case today. But there are many involving the closing of churches and whether they should be entitled to exemptions.
There are cases involving prisons and the treatment of prisoners. There are cases involving quarantines and the conditions under which the feds and the state can engage in them. I'll ask you about the religion cases to begin with. Cause I just want to start writing, which ones are you following and how would you describe the state of the debate about the Free Exercise Clause and the Coronavirus.
Adam White: [00:02:11] The case you mentioned that was decided today, the non-coronavirus case, that was really a case of, of express discrimination against religion, because that's the courthouse, how the court frame did in the Espinosa Case, where in the state of Montana, there was a categorical ban against state funding going to religious schools.
And the court held that that was unconstitutional when it, that state law was unconstitutional when it prevented. A family from applying state funds in a scholarship to a religious school. Now that was a case of express as the court saw it, express discrimination what's happening in the coronavirus cases is a little more nebulous.
the, the criticism generally is that. It's not that laws are explicitly discriminating against religion, although there's always no accusations like that. It's more than the religion is facing disparate treatment that really isn't easily explained. And so people will point to say prohibitions against gatherings, including gatherings of religious bodies.
and, and say that well, other people are allowed to meet. Why are you discriminating against us? Now, I know this all too well. Our church in Virginia, our Catholic parish has been, it was shut down for a very long time, pursuant to the state of Virginia's, requirements. And it's opening very slowly. So we know all too well, how much this hurts, but the question is whether there's either express discrimination or unstated, but intended, discrimination.
And if not, Then the question is just a, sort of a balancing of government power against rights, as we've seen in RFRA (Religious Freedom Restoration Act). And other cases now, the Supreme court recently turned away a couple of cases. It was one of them was called South Bay, United Pentecostal Church, where the court decided not to hear the case and chief justice Roberts issued an opinion saying that there wasn't express discrimination.
And as he saw it, There really, wasn't a clear case of, of state power, unduly infringing upon constitutional rights, other justices, justice, Kavanaugh, and others, disagreed. But that's where the state of play right now. I'd say that as more things and I'll end on this, I've gone a little long, but. I'd say as more and more things open up as States, open more things up for business.
I think we're going to see an acceleration of these cases, to the extent that churches, church communities find themselves left behind, but again, the judges and all these cases have to parse carefully between express discrimination, implicit discrimination, and just questions about Bergen.
Rosen: [00:04:33] Thank you very much for that great overview of the issues and the religious liberty cases.
And we know well returned to some of them. Debra. I asked Adam to start with a concrete question involving religious Liberty. Cause there are so many cases. Maybe you can broaden us out a bit and give us a sense of the range of cases that you see. The covid crisis has introduced into the court system. Both. Cases where, the government is acting in a way that people claims infringe of civil liberties and some cases where the government is failing to act in ways that it might, that raised different, legal issues.
Deborah Pearlstein: [00:05:08] Right. So, thank you for this wonderful set of panels first and for having me, know, I think your question is, is, is the right one is a great one because when we think about state responses to emergency situations, serious public crises, I guess, from a civil liberties point of view, I look for three kinds of concerns. One is the set of concerns like Adam was just talking about as an example, right? Violations of particular rights by actions that the government is taking. In order to address the emergency. So in the last panel, we were talking about infringements on Rights of Assembly.
Under the First Amendment. Adam was just talking about concerns about the free exercise of religion. And, you know, there are other cases, a few other cases. Now ongoing about States that have imposed quarantines of from people coming from outside their States and whether or not that infringes on the right to travel.
That's been recognized by the Supreme court. So they're always concerned about those particular rights and we should talk about the details of them. I think one of the fascinating things about the government response to this particular crisis is, that we haven't seen maybe as many of those as we might've expected, at least so far in part, because so much of the government's response, certainly at the federal level has been characterized by inaction as opposed to sort of aggressive actions against individuals or individual rights.
So I'm actually slightly less concerned at the moment about those kinds of infringements. Although there are some, some concerns, a second kind of worry about our sort of what I would call opportunistic, actions that is actions, state, or federal government are taking, that are purportedly in response to the emergency, but in fact, don't really have any rational basis in public health initiatives and so forth.
And we've seen a fair number of those. So announcement just today by the administration that it's going to even further restrict and maybe simply remove contrary to, statutes and treaties rights seek asylum here in the United States, removals of environmental regulations on the grounds that for some reason, the crisis demands them, bans at least temporarily on abortion altogether in about eight states during the shutdown, because those weren't medically necessary, or at least that was the state law.
And we've seen a fair number of. those what I would call opportunistic actions, and I think those are concerning. but we're seeing a fair bit of pushback in the courts. And, and we'll see, we can talk about in detail how some of those play out. But I guess, I think for me, the most concerning category, so far are the kinds of, impositions on civil liberties or damage to democracy that you might see more systemically by the government's failure to act to protect rights.
That is has to protect or that it's supposed to protect. So if you look at, for example, prison systems in the United States or immigration detention, and you have large numbers of people concentrated together, to places where the risk of infection is enormously high. In order to protect those people.
The government has a constitutional responsibility under the Eighth Amendment to put in place new systems, whether it keeps people in custody or temporarily releases, some of them in order to address the threat to those individual's rights and health and safety. a similar kind of example is elections, right?
You think about rights to vote and the ability to carry out free and fair elections in a situation like this. The government needs to provide money in additional resources in order to carry out free and fair elections. And if those things don't happen, then you have really profound threats to civil liberties and rights.
And those worry me most, maybe not only because they tend to fall. Disproportionately heavy, heavily on minority communities that you see struggling with these rights as it is, but also because those are the sort of, particularly with elections and Freedom of the Press and so forth, kind of the gateway necessary conditions for having a functioning democracy.
And when those are compromised, those, those are the ones that start to worry me most.
Rosen: [00:09:12] Thank you for that great series of distinctions between opportunistic actions and, failure to act. And then those, that latest category of, of the election cases as well. And I hope it returned to. several of them, if, in the next round. Polly Price, you've written a series of really illuminating pieces on the history of the 1918 pandemic and what it can teach us.
And in your piece, how a fragmented country fights the pandemic. You noted that back in 1918, when cities closed schools, churches, and places of entertainment, state, and local judges routinely upheld the measures. There's so much to say about what the history of the response to that pandemic can teach us today.
What would you like our audience to know about the lessons of 1918?
Polly Price: [00:10:02] That we have been here before, but not in a hundred years. And we have had in the past some very frightening pandemics, Yellow Fever in the late 19th century, which generated much of our federal law that we have today that governs the federal government's role in interstate quarantine.
and, and then also of course, the 1918 Pandemic and it's in many ways, we are back where we started in 1918. The Surgeon General of the United States is sending out circulars to state health departments and putting ads in newspapers saying, please make your own mask and wear them. And then urging folks to please, you know, wear a mask in public and asking for state and local governments to have mask requirements.
So the one difference that I see then, and I agree completely with, with, with Deborah in the sense that the imbalance today seems to me that one cannot sue to ask the government to act to protect you, in the same way that you can sue to challenge this based on some, fundamental right to not wear a face mask, something like that.
You know, it's a very, it's a very difficult question, but let's go back to 1918, a very different century. In many ways, but, most of the courts that dealt with challenges to what were local cities, having face mask requirements, for example, but they also closed churches and schools and businesses very much like today, those challenges were generally upheld, but they were almost all of them in state court.
So, what is different today? A century later, it's much easier to bring federal constitutional challenges for reasons that we can talk about. But one thing that has not changed and, and I think this is what's very significant about, Chief Justice Roberts, recent action. We began the program talking about Chief Justice Roberts, and, and Adam mentioned this, but in South Bay United Pentecostal Church just a month ago.
Admittedly, not a precedential decision in the sense that the Supreme Court is denying an interlocutory appeal for injunction, but Chief Justice Roberts went out of his way. To affirm that Jacobson v. Massachusetts, this is a case from a hundred years ago, more than a hundred years ago is still central to how the federal courts should deal with this.
And if you don't mind, if I can just quote briefly from that, he says, "Our Constitution principally and trusts the safety and health of the people to the politically accountable offices of the states." And then he cites a case from more than a century ago. And then he goes on to say, when the officials undertake to act in areas, fraught with medical and scientific uncertainties. Their latitude must be especially respected. So I, for one, think that there is room for a much greater federal role than we have. And when I look back to yellow fever, epidemics, late 19th century, I'll look back to the Spanish flu state and local governments are begging for federal help that they do not get, and in some ways, we are in a similar situation. I would let me just throw out and I'll, I'll stop. I'll stop talking, but let me just throw out a few where federal government leadership would help state governors would help local mayors. One of those is, OSHA, you know, some. Some workplace requirements that would help employers know what they have to do to avoid liability, to protect folks.
The Federal Aviation Administration could make it clear whether face masks are required on planes or not. procurement, you know, we have governors who have gotten together, to, in, in, in groups to buy, PPE. Because they don't have federal access to it and they don't want to be on a market, you know, singly and alone.
Like a lot of our healthcare providers are, And then finally travel, which was mentioned earlier. We've got many states, Hawaii, for example, but Florida New York, which, which I say, if people are coming in from outside, they should quarantine for two weeks. That's exactly what our federal government requires of, of returning U.S. travelers to the United States.
They at least suggest that it should, it'd be a 14-day quarantine. And so when, when there's no federal leadership on the interstate quarantine, Idea. you can, you can understand why States would step in. They, they have undergone, many of them have undergone very painful closures, business closures, social distancing measures, stay-at-home orders and they want to be able to control who comes in and just look at Hawaii is a nation, so many nations.
are and the U.S. now is being quarantined, you know, by the European Union, you can't travel freely there. we do the same thing for many other countries, but Hawaii can't do that with respect to travelers coming in, either Hawaii citizens or not. Or at least that was the position of the Department of Justice for their most recent or I'll stop talking.
Those are some of the issues that I see as greater federal role, but I'd like to leave with the, the notion that we, we have been here before. The problem is it's been more than a hundred years since we face these serious calamities, our laws probably have not kept up. I think governors are probably doing the best they can under their state's emergency laws.
Those are geared towards, hurricanes, other kinds of disasters. And I expect that we'll see a lot more legislation coming out in the future about this, but the question is, you know, who controls now?
Rosen: [00:15:59] Thank you for all that. Thank you for that really interesting series of suggestions about ways the federal government could act more vigorously.
Adam White, I wonder if you agree, you wrote a really interesting piece for the Battle of the Constitution site. "Deregulate for the Coronavirus Recovery", where you argue that, White House offices like, OIRA (Office of Information and Regulatory Affairs). Need to identify opportunities for relief from existing regulations. So imagine that a Vice President Biden wins the election and the Coronavirus is still raging.
And in some of Polly's suggestions, adopted, do you believe they would be consistent with the Constitution with federal law and Mel Shuster asks in our Q&A box would a more vigorous federal response be consistent with the 10th Amendment.
Adam White: [00:16:48] Well, it's true. I did say that the now is a time where the government does need to focus in some respects on deregulation.
And they're always focusing on deregulatory efforts, short term things, not long-term things that might help juice the economy when it's time to open up. I, I do agree with poly that there's a lot, the federal government can and should do to clarify. Just federal protective requirements, especially in the contexts she mentioned.
OSHA, the FAA and a few others, one place where I'd slightly disagree with Polly respectfully. And this gets to the question that's being asked is on this question of federal versus state power here. Now I do agree the federal government hasn't done enough. In terms of broad guidance, in terms of messaging advice, I'm glad to see the federal government's put financial resources behind some of its effort, but I think I would slightly disagree with Polly, maybe, on, on the allocation of power, because I think it's good that the States take the lead. the century old case that she mentioned Jacobson, it was after all Jacobson versus Massachusetts and, and the court, the, the, the, the laws at issue, which Chief Justice Roberts was referring to. Where, you know, then the laws of the state of Massachusetts, I do think it's good that our States are, are responsible for taking a lead in many aspects of protection, including protection against communicable diseases in part, because the government response isn't strictly a technical matter, matter of expertise. It has to be informed by that. And really that has to lead the way, but ultimately they're really tough value judgements to be made about how fast to open certain things when you consider both the public health impacts and some of the impacts on people's lives and livelihoods, which in and of themselves can, can affect public health.
And so I'm actually glad that the States take the lead regardless of the administration in terms of day to day management. And I don't know that I, I hope I'm not overstating my disagreement with Polly there. it really is. I think it's, it's a matter of shades of gray. I do think it's important for the federal government though, to play a leadership role on issues that are crossing state borders.
and also just on bringing to bear the government, the federal government's expertise, which has really unparalleled. And I don't think there's been enough of that. And that would have been a good thing for this administration to focus more on.
Rosen: [00:19:02] Deborah. There are several questions about liability with regard to covid.
Kenneth Davis asked, "Can someone discuss the issue of liability as it relates to COVID and people, businesses, institutions, how are the various interests balanced?" And, Ashley Meyer says, "I've seen some States contemplating the criminalization of spreading COVID. This reminds me of the criminalization of the spread of HIV AIDS, which obviously disproportionately harmed LGBT people."
I think this connects to the discussion earlier, but perhaps someone could comment on how we can move away from carceral solutions, because as Professor Pearlstein stated, covid is only a more dire situation in prisons.
Deborah Pearlstein: [00:19:39] So, those are both good questions and they're sort of specific start with an overarching point and then, and then address them each.
because in the specifics it's going to depend a lot on what the law is and what each state is, is doing. In general, right? The failure of the federal response or the failure of kind of rapid responses, has a cost. And often the cost is if you do nothing, when you could do some modest things to stem the spread of a public health threat.
Right. Like early testing and early observation and early monitoring and so forth. And you wait until the diseases at crisis levels. Now you're in a position where you may have to take more Draconian steps, right? So instead of initial containment of the disease where you can monitor people coming into the country, do widespread testing and then identify who they are, track and trace, and then isolate those individuals.
Instead you saw widespread, nationwide global shutdown, right? Because we sort of missed the opportunity for containment and we're largely back at that point now. Right? So instead of more limited, not great, but more limited infringements on civil liberties and rights, you have the government in a position where in order to protect catastrophic damage to public health and you know, another hundred thousand lives lost, they have to take more extreme steps.
So I'm not surprised to see. these sort of more extreme proposals out there, and, and States have, and historically have had, even though they haven't used it much enormously broad powers and they're called constitutional law police powers by which I don't mean the power of the police agencies.
Right. but police powers, which is general governmental powers that the federal government lacks in order to address threats to public health and safety. So. Many States have the power to, powers that they haven't yet used to impose detention conditions on people who are violating quarantine or otherwise not complying with state requirements.
And that's a serious concern so far, we haven't seen a materialize and, and, and I hope obviously that won't be necessary and won't be the case, but here's a great example where. Modest federal intervention by which I mean uniform messaging and raising public awareness of the importance of say, wearing a mask, right?
Wear a mask, save a lot of lives and avoid the potentially catastrophic burden on civil liberties that these more draconian measures that States have in their toolbox may impose. the question about liability. is, is potentially a really broad one, right? because liability can arise in lots of different circumstances.
Sometimes it's questions of contractual violations, more often it's questions of tort liability, but to address it and, and those, again, vary a great deal by state. But, just to take the constitutional, potentially constitutional aspect of this question in two ways. So, in the Eighth Amendment context, right, for people who are in prison, having been convicted of a crime, the government or whoever the detainer is, whether it's the state government or federal prison system has an obligation under the Eighth Amendment, not to engage in cruel and inhuman punishment. and historically that has been historically and today that's interpreted to require the federal government to provide a certain baseline level of safe conditions of prison, safe detention conditions in prisons, right?
And in the eighth I'm in the prison system for people who have been convicted, it's an Eighth Amendment theory in immigration detention. It's typically addressed under the Due Process Clause of the Fifth Amendment, but either way, the standard is can you show that there is in one form or another deliberating difference to the health and safety of the people that you're detaining?
So if you're a prison system and there's an outbreak of COVID in your facility and you do nothing at all to provide prisoners masks or socially distance, or in other ways, meet guidelines, public health and safety guidelines for addressing those conditions. In theory, you can be held liable and, and there are.
or you can be required to, to change, which is the more important thing to do, initially at least address the circumstances through injunction. and we see actually a lot of litigation on that. Now there are ACLU cases. There are cases all over the country and in the lower courts and the district courts they found some success.
the much harder questions though are yet to come. First, these have yet to see really much consideration by any federal appeals court, much less than the Supreme Court. But, what if prisons take some steps, right? Just simply not sufficient to stem the outbreak, which might require temporary release or home confinement or some other more extreme actions. There, it's very difficult to meet the constitutional standard of showing deliberate indifference. You're not the prison system. Isn't. Entirely indifferent. They're just simply behaving inadequately and whether existing constitutional doctrine on deliberating difference in these circumstances is adequate. I think is a really big question when we have yet to see play out.
Rosen: [00:24:59] Polly, Gary Mostvisch asked what's the role of state and municipal governments. And just to play out your call for more vigorous state action, more aggressively, is that, is there anything the feds could do in a hypothetical future administration that would, violate the constitution. And tell us about the lesson of the yellow fever epidemics and what the Supreme Court's ambiguous statements about any limits on federal power to quarantine might be.
Polly Price: [00:25:27] Well, I think there can clearly be instances in which the federal government overreaches. we, we haven't seen that because we haven't seen a lot of federal intervention. So I think for, for most everyday Americans, the question is whether it has their state or local government. Overreached. And I think that it's a very complicated question because, States as you know, vary on the extent to which they have home rule, where, where Houston, for example, can have a face mask requirement, if the state governor says no face mask requirements. So that, that varies so much by state that it's very hard to generalize, but it's interesting to see that the most recent activity on face mask for example is governors, devolving authority. To local jurisdictions to decide on face mask requirements.
And you know, that that may be passing the buck. It may be, empowering those jurisdictions, but, but nonetheless, it's, it's very hard to. To talk in general about what, what authority does a mayor have versus a governor? Because our 50 States mirror in their own States, the federalism that we have at our other level.
So we can't, it's, it's very hard to generalize about that. So I guess what I would, what I would say is I, I think Adam and I are on the same page about, I think that local government, state governments. Their health departments are on the ground. They know the conditions they should be making the calls and some very basic considerations.
Yes. It would be helpful to have a federal assistance in, in the areas that I outlined. We don't have that. So let's, let's talk about what the state government authority is and the state government authority. Seems to be pretty substantial in the sense that most governors of the 50 States are relying on emergency declarations for these kinds of orders.
And those emergency declarations have been in turn previously authorized by the legislatures. So in, in each state, it's still, yet a question. Has this emergency been met? And is this within the, the authority of the governor at the end of the day, I go back to what, Chief Ramsey said about, trust and legitimacy, balance and challenge.
And, and that is, You can't have a situation where you're trying to enforce a requirement on a population where the majority of the population rejects it. That's, that's a useless waste of your law enforcement resources to go out and give tickets to people who aren't staying at home or aren't wearing masks and so forth.
So it's really the messaging and it's the, do we, is there legitimacy and trust in that state and local government? And, and, and I do think, you know, the federal government backing them up in these tough decisions would be very helpful. It's also the case that again, when you go to a situation where, you know, in what one state's rules are different from another States, when County is different from another, I live in Atlanta.
At one point I was under a, a curfew and quarantine order. In one County and not in the city of Atlanta. And yet I could walk a mile away and be under different rules and that's just not helpful. Or at least from a, from a public health perspective, that's, that's not helpful from whatever your political perspective might be.
Rosen: [00:28:56] Well, friends, thank you so much for staying with us as we run over, I'm gonna, we'll, we'll have the briefest of closing statements just because we really don't want to impose on. everyone's a generous spending time with us much longer, but, Adam, do you know, in a, in a, in a sentence or two, what is the legal or constitutional violation?
that you're most concerned about that may arise in the COVID crisis. And in what cases are you looking out for?
Adam White: [00:29:25] Boy? That's what a question. I mean, so far I've been pretty comfortable with what's been happening. I think there's been a lot of infringements on Liberty. Maybe some have gone a little overbroad, but.
Now the kind of thing that courts could really intervene with. One thing I was worried about was the actions of Mayor DeBlasio in New York, where he seemed to be singling out explicitly, Jewish communities, Jewish and calling them out by name. I was profoundly troubled by that. and, and so. I was worried about that.
I'd say going forward, the greatest constitutional challenge, I just say in a sentence is how we move from this emergency footing to a slightly, more normal footing, where while we're trying to grapple with Coronavirus, we're doing it through more normal channels of government with greater involvement by Congress and state legislatures, our friend Yuval Levin and I wrote about this, I think pivoting back towards a more normal government footing that grapples with the severity of this problem is our greatest challenge.
Rosen: [00:30:19] We've put in a chat box, your piece, the floor on the president's newest, constitutional argument on the battle side, Deborah. The same question to you in just a few sentences, the legal or constitutional, violations that you're most concerned about moving forward.
Deborah Pearlstein: [00:30:33] I'm most worried about our ability to carry out free and fair elections. I think we've had more than enough warning shots across the bow. As we've watched. primary States really struggled, particularly Wisconsin, for example, Georgia, really struggled with the need to both conduct, effective and timely.
mailing, absentee ballot. Make those readily available to everyone. And at the same time, while they're having to shut down polling places, in order to protect public health and safety, make sure that everybody has a place to vote if they need to vote in person. I think there, the tradeoff between competence and liberty is likely to be acute. We can do this. but it's one of those instances in which we have to have effective government from the federal level to provide funding, to state and local election officials to get it done.
Rosen: [00:31:26] We posted your piece "Zoom Congress is Perfectly Constitutional" as well as Polly's piece, "How a Fragmented Country Fights a Pandemic" and all these resources will be on our interactive constitution, along with this video. Polly Price, the last word in this incredibly rich and unbelievably thought-provoking discussion is to you in a few sentences. What legal or constitutional violation are you most concerned about looking forward?
Polly Price: [00:31:52] I, I couldn't agree more with Deborah and Adam. And thank you for having me on a panel with, with both of those. I would just leave you with not a Constitutional challenge, but again, what Chief Justice Roberts said a month ago, which is when these officials and he means state and local officials. When these officials undertake to act in areas, fraught with medical and scientific uncertainties.
Their latitude must be especially broad. And to remind everyone, we are in an era in which we, there are medical and scientific uncertainties with that, I've been unfolding as we go. We trust they will get better, that we'll have tests to be able to determine and who is contagious and who is not, but we don't have them at the moment.
And in an emergency like this, it does seem like, Again, giving deference to the elected officials who have to take the heat for whatever decision they make is the right way to go.
Rosen: [00:32:48] I was taking notes and I will insert that with your permission in the, in the Roberts piece, because I think it's very illuminating of his judicial philosophy.
thank you so much. First of all, to our amazing audience, you're still here. So many of you, at, 8:15 at night, because you've taken the time out of your busy schedules to educate yourself about the Constitution. And listening to complicated, difficult arguments offered by brilliant scholars. A very different perspective because this is a model of civil dialogue.
I have learned so much from it. I know you have to, and I'm so if you'll allow me to say it to our dear audience, proud of you for taking the time to educate yourself with the Constitution. Thank you for doing that. And please join me, giving a great virtual round of applause to Adam White, Deborah Pearlstein and Polly Price.
Adam, Deborah, thank you all so much for joining everyone. We'll see you again soon. Have a good night. Thank you. Bye. Thanks.
Jackie McDermott: [00:33:45] This episode was engineered by the National Constitution Center's AV team and produced by me, Jackie McDermott and Tanaya Tauber. This program is made possible through generous support from the John Templeton Foundation.
It is presented in partnership with The Atlantic and in conjunction with The Battle for the Constitution. So if you enjoyed this constitutional conversation, please check out The Battle for the Constitution at theatlantic.com/projects. We'll link to the site and to the panelists' essays on our episode webpage, if you'd like to hear more from the symposium, please tune into part one, which aired last week.
It's a conversation on policing protests and the Constitution as always, please rate, review and subscribe to Live at the National Constitution Center on Apple podcasts or wherever you listen on behalf of the National Constitution Center. I'm Jackie McDermott.
