Across The Great Divide

We apparently have arrived at a new high, or more appropriately – low, in cultural divisions. There are armed men in full camo on the steps of statehouses and courthouses. There are shaming comments on social media, from all perspectives. Who did they plan to shoot? Why do you need a rifle to peacefully protest your right to be an ass? Maybe this is just a new incarnation of the divide we were already living with.

There is the “live free or die” perspective – which takes on a new and very real feel. Those who won’t wear masks, who don’t socially distance and who truly believe that this is all a bunch of bs, or a hoax, or some weird conspiracy. The rate of growth of conspiracy theories is astounding, but that is a rant for another day. Since I am in the wear a mask, stay home as much as you can and social distance camp, let’s talk about live free or die.

The slogan for this perspective should be “I will live free and you will die.” As happens more frequently than not, folks are waving the constitution like a suit of armor. Don’t get me started on the right to bear arms…to form a militia for the common defense. For those who wish to argue with me, here is the language:

“A well regulated Militia, being necessary to the security of a free State, the  right of the people to keep and bear Arms, shall not be infringed.”

So now it is the right to assemble. …[T]the right of the people peaceably to assemble[.]” This poses the now somewhat timeworn issue of your right to yell “Fire” in a crowded theater. The core idea of this famous Holmesian quote, not at all timeworn, is that the exercise of every right has a corresponding burden or obligation, generally on someone(s) other than the person exercising the right.

So how do you balance? An excellent analogy is travel. Courts have long found that an essential element of “liberty” is the right to travel freely. But the courts have also long upheld multiple restrictions on that right – the need to have a valid license, traffic restrictions, the need for insurance, DUI laws – for example. So your right to travel is balanced against my right to be safe from unlicensed, uninsured and impaired drivers.

And in the same way, your right to free speech is balanced against the public good, or damage, that the speech may cause. So back to the point. Your right to go out in public without a mask, gather in large groups and ignore social distancing places what may of us consider an undue, unfair and unbelievable burden on the rest of us.

If you read credible and unbiased scientific articles with real data, it is clear that, for instance, religious gatherings are one of the prime “clusters” of illness, along with nursing homes and extended care facilities. It is also clear that if you ignore New York, which is in total lock-down, the rest of the country is still on the upside of the curve. You also know that you can spread the virus most efficiently before you have symptoms, are tested or are diagnosed – for up to two weeks. You are essentially as impaired and dangerous as that drunk driver who is breaking the law.

Now I have to go out for groceries occasionally. And I am stunned by the number of people not wearing masks, ignoring the distances and generally walking around as if none of this ever happened. So your right to “live free”, maskless and in close groups, should be balanced against my right to live at all. This exercise of your right- to ” live free” – imposes a possible death penalty on the rest of us. The constitution is not a suit of armor, it is a living document that provides us with a framework for our democracy. Democracy is a living framework that must and does flex with the times. And of course there are a lot of us going out with masks, maybe gloves, wipes and taking good care.

The exercise of every right has a corresponding burden. When you exercise your rights, there is always a cultural cost. Granted when you exercise your right to speak, I don’t have to listen but there are boundaries; when you exercise your right to assemble in your neighborhood, there are rules about what you can do; when you exercise your right to carry a gun, there are laws and restrictions about what you can do with it. Based on my current experience, I am tempted to tell you where to put the gun. Instead I will just say wear a mask, stay away from me and unless you are a constitutional scholar, keep your constitution to yourself.

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