Why Americans Should Fight Unconstitutional Lockdown Orders For Our Right To Party

Why Americans Should Fight Unconstitutional Lockdown Orders For Our Right To Party

The best case for a right to party is in the right of assembly, placed in the Bill of Rights as many deadly diseases threatened the American population.
Ilya Feoktistov
By

In Alexander Pushkin’s “Feast in a Time of Plague,” an old priest returning from a mass funeral of plague victims catches young people partying, and unleashes a 19th-century rant: “A godless banquet, godless madmen all … Go back now to your homes!” “Be off, old man!” The partygoers yell back in a period version of “OK, Boomer.” Another tells the priest: “Our homes are sad. And youth is fond of joyousness.”

Human nature remains constant despite the passage of time. Young Florentines still partied through the Black Death. William Shakespeare’s Romeo and Juliet fell in love at a dance party during a plague in Verona. Authorities, like Pushkin’s priest, reacted to epidemics with repressive measures that often did more harm than good. Romeo, after all, killed himself when a plague lockdown prevented the news that Juliet was still alive from reaching him.

It was then as it is now with COVID-19 today: most people are still fond of joyousness. Our modern governments are still trying to stop young people are still trying to party with medieval plague control measures, even if in language less florid than Pushkin’s.

The Rise of the Party Bans

“These targeted measures are intended to reduce the number of opportunities and activities where people gather in groups, and get them home with only members of their household,” Massachusetts Gov. Charlie Baker intoned last month, announcing a ban on gatherings larger than ten people in private homes, and a 9:30 PM curfew on all gatherings anywhere. According to Baker, gathering “with family and friends is likely the worst possible scenario for spreading the virus.”

Armed with this one simple fact, and with immense emergency powers, both Democrat and Republican governors across the country have declared war on the right to party during the holidays. As of Thanksgiving week, at least twenty-six states had bans, caps, or curfews on social gatherings in private homes, a tally that doesn’t include harsher restrictions imposed by lockdown cities in open states like Tennessee, where Nashville has limited parties to eight guests.

Most of the party ban states enforce violations with fines, but according to governors’ executive orders it is now a misdemeanor in five of them — Arkansas, Idaho, New Jersey, North Carolina, and Oregon — to invite too many people to a private home. In California, Colorado, and Minnesota, it’s a crime to invite even one guest. In Minnesota, those who “disseminate information encouraging people to attend prohibited social gatherings” can face up to 90 days in jail.

Some of the lockdown orders implicitly create a strange new adultery crime: sex is now illegal outside the household, rather than out of wedlock. And, by implication, all extra-household dating is a no-go where social gatherings of any size are prohibited, even if staying six feet apart. “Masks off” might be the 2020 version of first base, but states with mandatory mask orders can now fine or jail someone for getting there in the privacy of one’s own home.

Intuitively, many Americans understand that our Constitution is incompatible with modern-day monatti breaking up parties, shuttering private homes, and dragging grandma away from the Christmas table. But is there such a thing as a right to party, and can private citizens fight for it in court?

Partying and the U.S. Constitution

The Supreme Court recognizes three distinct constitutional protections for different kinds of gatherings. One is in the First Amendment: “the right of the people peaceably to assemble.” The other two protect the more diffuse rights to associate with others: intimate association and expressive association.

Expressive association rights protect gatherings in “pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” In the First Circuit, for example, even dance parties by disfavored groups are protected statements that their members “exist, that they feel repressed by existing laws and attitudes, [and] that they wish to emerge from their isolation.”

Most lockdown states have exempted political gatherings from the lockdowns, and some also group worship, but none exempt parties. Several groups, from Orthodox Jews to motor speedway owners, have already gone to court, with mixed success, arguing that lockdowns violate their expressive association rights. If some have the right to protest, they say, why can’t others pray or enjoy car races together?

With each group seeking a carve-out from a presumptively universal ban, such arguments come with the high external price of ceding to government the power to play favorites in deciding which group’s gathering is worthy of the right to expressive association. Eat? No. Pray? No. Love? No.

The Supreme Court announced in 2013 that states cannot easily ban love, which is protected by the right of intimate association, the second so-called party right. State power does not extend far within “the sacred precincts“ of family relationships and procreation, despite the public health interest in both. The rights of children to live with their grandparents, for example, are considered fundamental. As such, the right of parents to invite grandparents over for Christmas might be fundamental as well.

Intimate association rights, however, are limited, by definition, to the smallest of parties, where even three might be a crowd. Dating certainly fits that bill, and so too might weddings or gatherings of extended family. It is “clear beyond cavil,” however, as the Supreme Court put it, that Juliet’s dance party would not be kosher.

Americans Have Assembled (and Partied) Through Worse

Ultimately, the strongest case for the right to party lies in the right of assembly, enumerated in the Bill of Rights during a time when an entire pandora’s box of infectious diseases was devastating America’s population with waves of dysentery, measles, scarlet fever, smallpox, typhus, and yellow fever. In 1697 alone, smallpox killed one in eight Bostonians and revisited often in the 18th century.

Nevertheless, Americans partied for a decade straight after beating the British and ratifying the Constitution. With its 1792 smallpox epidemic still raging, Boston threw a street party with “eight hundred loaves of bread, two hogsheads of punch, and an enormous roasted ox.” Across the country, “between the ratification of the Federal Constitution and the inauguration of Thomas Jefferson, the streets and public places of the American republic were filled with an extraordinarily diverse array of such feasts, festivals, and parades.”

Disease treatment was then mostly quackery. Epidemiologists of the 18th century had a rudimentary idea of how human-to-human transmission occurred and tried to stop it in ways familiar to us in 2020: quarantines and travel restrictions for the potentially exposed, self-reporting requirements, and compulsory isolation of the sick. Yet, even then, locking down a sick person’s entire family was seen as too harsh. Indeed, English victims in the 17th century complained:

We have known the healthiest men shut up, and with the very thought of a sad and dismal restraint, contracting first a Melancholy, and then a feaver [sic], and at last . . . a Plague. Little is it considered that some spirits are so averse to the very least restraint.

In America, this aversion was codified. According to the Supreme Court, the “right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” As speech and press rights “are not confined to any field of human interest,” the right of assembly is also not limited to “solely religious or political” purposes.

Peace is the single requirement for assembly, and limits on assembly are only “justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger.” Compared to previous epidemics, COVID-19 is not even close to a “clear and present danger,” as would have been understood by those who wrote the assembly clause amid disease outbreaks that had killed more patriots during the Revolutionary War than British regulars.

As for COVID, there are questions about how deaths are being classified, and it is now known that for those under age 70, 99.9 percent will survive a COVID infection, according to the U.S. Centers for Disease Control. Across the globe, lockdowns have also had no statistical effect on how many ended up dying from COVID-19. The politicians who issued the lockdown orders seem to know this, or so many wouldn’t be breaking the orders themselves.

The Right to Party

Some, like Pushkin’s old priest, might view complaints about party bans as petty and facetious. But, until 21st-century technology made it possible, no human government had ever presumed to issue a general ban of indefinite duration on private face-to-face human social interaction, outside of a prison or slave camp, and sparingly even there.

Even authors of fictional dystopias have stopped short of imagining a society that bans all social gatherings. In “Brave New World,” sex, drugs, and parties were themselves a key component of social control, and, in “1984,” even Winston got to drown his broken soul at a tavern at the conclusion of the novel.

Universal social alienation needs some non-human cause to be believable, like the soulless digital overlords in the fictional future depicted in “The Matrix,” who locked down the human race and essentially plugged it into a never-ending 24-hour Zoom session.

“It is from petty tyrannies that large ones take root and grow,” the Supreme Court warned in a ruling on assembly rights. Men and women who achieve positions of power are always hungry for more. Fighting for a universal right to party these holidays, through the courts — and, if need be, mass civil disobedience — is a quintessentially American, bipartisan, and winnable cause.

Ilya Feoktistov is a Boston-based civil rights attorney, representing victims of lockdowns and cancel culture. He can be reached at [email protected]

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