Clashing fundamental rights

On May 14, a news item appeared on the website of SCHMDT advocatuur (of my son Menno). It is about an academic debate in Germany, in Die Zeit, about the tensions that exist between interests protected by fundamental rights. Between the side effects of coronavirus measures and the urge for individual freedom of action and entrepreneurship.

Today I heard on the radio a message that the Wisconsin Supreme Court declared the continuation of the lockdown unconstitutional. This illustrates that tensions are already playing out. It also shows what we can expect to wrestle with over here. I give a detailed quote from the May 13 New York Times on the matter. It was written by Neil Vigdor:

    “There have been legal challenges to stay-at-home orders in Michigan, California, Kentucky and Illinois, but none of those were successful in persuading a court to fully strike down the order, as the plaintiffs in the Wisconsin case were. Wisconsin’s stay-at-home order took effect on March 25 and was extended by the governor on April 16, leading to a protest at the State Capitol. During a 90-minute hearing about the order that was conducted over video chat last week, some justices asked tough questions of the lawyer defending the state’s top health official, Andrea Palm. “Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work, among other ordinarily lawful activities?” Justice Rebecca Bradley asked. In their majority opinion on Wednesday, the justices ruled that Ms. Palm did not follow the proper procedure for setting stay-at-home limits, and should have followed a rule-making process that permits members of the Legislature to provide input. “We don’t conclude that Palm was without any power to act in the face of this pandemic,” the justices wrote. However, Palm must follow the law that is applicable to state-wide emergencies.”

The highly learned discussion in Germany and the jurisprudence in the United States confirm the moral quagmire that the coronavirus is producing. It is spilling over, over national borders. Once locked in, our trias (administration, legislator, judicature) must build infrastructure that helps find pathways out. The solution will probably not come from philosophers or professors. Those who, on the scale of their families, shops, schools, companies and theaters, manage to organize their dealings in sufficiently safe manners, will. Hopefully without resorting to forms that promote age discrimination.