March 21, 2020

A balance between liberty and safety during a pandemic

Joe Gratz


Current state restrictions, and more looming, due to the emergence of COVID-19 in New Mexico raises the question for some people: Is this legal?

Since Gov. Michelle Lujan Grisham declared an emergency earlier this month, she has ordered purchasing restrictions, limited group gatherings and ordered restaurants to limit service to take-out only. 

While at least one New Mexico scholar and the New Mexico American Civil Liberties Union agree that the governor’s actions can be justified, an Albuquerque attorney does not and has said he is working towards challenging the order in court. 

Matthew Simpson, who teaches political theory at the University of New Mexico, said there’s a balance in U.S. government between public safety and personal freedoms, and in times of crisis, safety usually wins.  

“The measures that might be best for promoting people’s well being isn’t really compatible with maximizing their liberties and so government officials have to try to balance those two and have to weigh them against each other,” Simpson said. “I think at the end of the day protection of life has to take precedence, and usually does take precedence, over the protections of liberty, just because you can’t have liberty if you’re not alive.”

Simpson added that even though New Mexicans are currently restricted from physically gathering in groups of more than ten, their right to assemble is arguably not being violated.

“The government isn’t saying you can’t talk to people about your common concerns, they’re just saying you can’t engage in these behaviors that are going to be vectors for this deadly disease,” Simpson said. 

But that doesn’t mean putting public safety above rights always works out, he said. The Supreme Court sided with President Franklin Delano Roosevelt when faced with whether U.S. Japanese internment camps during World War II violated personal rights. 

“I think with the benefit of hindsight, almost everybody thinks that that was just a fundamental violation of rights,” Simpson said. “It was based on racism more than on real national security.”

But Simpson also pointed to a sentiment shared by a number of political scholars and politicians through the years: “The Constitution is not a suicide pact.”

“The idea there is that, of course, the fundamental rights that are outlined in the bill of rights and elsewhere are important, but they’re not more important than the survival of society and the citizens in the society,” he said.

Executive Director of the ACLU of New Mexico Peter Simonson, told NM Political Report he does not oppose the governor’s order aimed at limiting in-person interaction, even if it means limiting personal freedoms. 

“At a moment like this when there’s such a demonstrable threat to the public’s welfare, government certainly has the authority to supersede certain individual liberties that we would otherwise enjoy under normal conditions,” Simonson said. “I think it’s our feeling that as long as those restrictions, whatever they may be, are based in science and in this case, credible public health analysis and are the least restrictive means to accomplish the goal of protecting public safety, they are legitimate actions.” 

The ACLU of New Mexico recently challenged action taken by the Albuquerque City Council that gave the city’s mayor the ability to limit sales, close streets and limit gatherings in the time of a public health emergency. Simonson said his organization does not oppose the actions Albuquerque Mayor Tim Keller took to limit the spread of COVID. The issue, he said, was the overall power the council gave to Keller and future mayors. 

“I really want to draw a distinction between the actual taking of action—through strict movement, through strict contact, through strict interaction that can limit the spread of the virus—from codifying in law, a power that will exist indefinitely and that if improperly worded could be abused at some point in the future,” Simonson said. 

But there’s a difference between theory and practice and if there is anyone who would challenge the governor’s order, it’s Albuquerque-based attorney Blair Dunn. 

Dunn has a long history of challenging the government in cases anywhere from public records laws to civil liberties. Now, he said he’s preparing to take Lujan Grisham to court over her emergency orders. 

Dunn said it’s not the orders themselves that spurred his frustration, but that he doesn’t think she has the power to do itun

“I think that the best way to explain this is absolutely these are probably measures that need to be taken. I don’t think that there’s anything right now that the governor is doing that I think is the wrong idea,” Dunn said. “I think that they’re all well-intentioned and it’s proper, but the reason that we have a separation of power and we have three branches of government is so that there’s a check and balance to make sure that power isn’t abused.” 

Dunn said the state only allows a governor to issue emergency orders during events like riots and terrorist attaacks.

“She may be making a good decision,” Dunn said. “But that sets a precedent that in the future, somebody who’s not doing as good a job will be able to do whatever they think is best and it may be really bad for people, and it may hurt people and it may trample those civil liberties.”

Dunn has not filed anything yet, but said he’s working with his clients to file something next week. 

For now, there are restrictions in place, but it is unclear for how long or if there will be more restrictions soon. Lujan Grisham said that she would consider further restrictions if necessary to slow the spread of COVID-19.