Americans Prepared to Sacrifice Constitutional Rights, New Research Shows

Professors Versteeg, Cope Part of Team Surveying Opinions in Light of Pandemic
Mila Versteeg and Kevin Cope

Professors Mila Versteeg and Kevin Cope are part of a team looking at the tolerance for exchanging rights for safety during the novel coronavirus pandemic. Photos by Jack Looney and Kevin Cope

March 25, 2020

A majority of Americans are willing to suspend some constitutional rights and civil liberties, such as being able to gather in houses of worship or the ability to share certain information, in light of the novel coronavirus pandemic, a survey conducted last week by two University of Virginia School of Law professors and their colleagues found.

Professors Mila Versteeg and Kevin Cope, who conduct research on constitutional trends, among other topics, are part of a team whose research appeared in The Atlantic on Wednesday.

“The widespread support for rights violations among Americans means that the Constitution is more likely to be stretched for a bit,” Versteeg said.

The team asked a nationally representative sample of 3,000 U.S. residents questions in eight categories “just as state and local authorities were beginning to implement their most restrictive policies yet,” they write in The Atlantic. Joined by Adam Chilton, a professor of law at the University of Chicago and Charles Crabtree, an assistant professor in the Department of Government at Dartmouth College, the team found that strong majorities in all categories favored restrictions on rights if it meant saving a given number of hypothetical lives. The research looked at measures as draconian as forced quarantine in a government facility.

The respondents most heavily favored restrictions on rights for others that might not affect them personally: 85% supported bans on noncitizens entering the U.S., while 78% supported the conscription of health care workers to help fight the virus.

But 77% were also willing to abridge religious liberty by supporting the suspension of religious services and ceremonies. And 70% of respondents supported restricting the ability to say things that may qualify as misinformation about the virus, despite the modern court’s general permissiveness of such falsehoods under the First Amendment.

The policies with the least support were banning all citizens and noncitizens from entering the country, with 63% of respondents favoring, and seizing control of businesses (such as ones producing life-saving equipment) if necessary, which 58% favored.

The researchers said that even for the half of the sample who were explicitly told that the policies may violate the Constitution, there was majority support for all eight policies, with little or no reduction in support.

The research found almost equal levels of support by those identifying as Democrats or Republicans. Republicans showed highest support for banning noncitizens from entering the country, and the least support for takeover of businesses and property, but self-identified Democrats, to a lesser extent, also broke that way as well.

The experiment also randomly varied the projected number of estimated infections prevented and number of lives saved for each policy and survey respondent, in an effort to gauge how people weighed liberties versus threats to their safety.

“Predictably, support for a liberty-restricting policy was higher where, all else being equal, it was predicted to save more lives,” Cope said. “But that effect was not as large as was expected. Many respondents appeared to either support or oppose the proposed policies on principle, regardless of its projected benefits in human lives saved.”

The results will be part of a long-term research project the group is conducting, which Versteeg will also draw upon in her forthcoming book, “How Constitutional Rights Matter.”

“This is a new project, which we started when the virus became a reality,” she said. “We will also be conducting the same survey in Japan, China, Taiwan and South Korea, and perhaps other countries. While it is a new project, it ties into my ongoing research on whether and how constitutional rights matter. In prior work, I have argued that if citizens are in favor of rights violations, the constitution will likely be ignored, and conversely, as I argue in my forthcoming book, rights are best enforced when dedicated organizations mobilize for their enforcement.”

Cope and Versteeg stressed that while some right restrictions might be inevitable in the short term, temporary rollbacks risk becoming permanent ones.

“We should take care that the rights Americans are eager to give up for now do not become another fatality of the coronavirus,” Versteeg said.

Versteeg is the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law and a senior fellow at the Miller Center.

Cope is an associate professor of law and public policy.

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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