Does the Constitution/Bill of Rights allow for temporary restrictions in case of emergencies?

Question

https://www.reuters.com/article/us-health-coronavirus-usa-court/u-s-supreme-court-backs-religious-groups-over-new-york-virus-curbs-idUSKBN2860CK

NY State sought to limit in person worship to 25 in general, 10 in covid hot spots.

From the BBC's coverage

"even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here... strike at the very heart of the First Amendment's guarantee of religious liberty."

Now, I totally get that limiting worship in normal times is explicitly a no-no by the constitution. I also don't want to debate whether or not this particular limitation on churches is justifiable compared to restrictions on other activities.

My question is solely limited to: is there a mechanism under which temporary suspensions/limitations of certain constitutional guarantees can be put in place in case of national emergencies? Whether or not they should be applied in this particular case, is another question, which would likely devolve into opinions.

I don't really see this as a legal question, rather it is a question about the politically-decided operational framework under which US law gets administered.

Edit: To be clear temporary is a key point in my question. Normal, established permanent limitations on any of the rights - "You can't shout fire in a crowded theatre without a reason" - are out of scope.

I'm asking about mechanisms that allow adjusting/limiting/suspending normally constitutionally-protected rights, that can be put in place, on a time-limited basis, whether regionally or nationally, on the basis of an emergency.

And, just to be clear, also waaay short of the nuclear option of "declaring martial law".

Answer 1

Does the Constitution/Bill of Rights allow for temporary restrictions in case of emergencies?

Yes. Such restrictions must meet certain tests, among which are "appropriately tailored to achieve a sufficiently important government interest", taken in good faith and have a factual basis that the restrictions are necessary to maintain order.

It doesn't matter whether the emergency is national, state, or local. If it is recognized as an emergency, then temporary restrictions may be applied.

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In the Congressional Research Service report, Freedom of Association in the Wake of Coronavirus, April 15, 2020,

Government regulations of speech are often subject to heightened levels of scrutiny, meaning that a state must show that its regulation is appropriately tailored to achieve a sufficiently important government interest. At the same time, states have broad “police powers” to adopt measures that are “essential to the public safety [and] health,” so long as the state (1) acts in “the interests of the public generally” as opposed to “those of a particular class,” and (2) uses “reasonably necessary” means that are “not unduly oppressive upon individuals.” The question becomes how to reconcile these two disparate standards during a pandemic.

The Supreme Court has said that “[e]mergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved,” by the Constitution. But “emergency may furnish the occasion for the exercise of power.” [...] Reasoning that courts should grant governing officials “the proper deference and wide latitude necessary for dealing with the emergency,” these courts have applied flexible standards in reviewing alleged infringements of civil liberties that echo the “reasonably necessary” police powers standard. For example, in upholding a county curfew following Hurricane Andrew, the Eleventh Circuit asked only whether the government (1) took that action in “good faith,” (2) with “some factual basis” that the restrictions were “necessary to maintain order.”

Answer 2

There are only a few parts of the constitution that can expressly be temporarily suspended. For example Art 1 Sec 9:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

So in a war, Habeas Corpus may be suspended (as it was in the Civil War). But not otherwise.

More generally, interpretations of the Bill of Rights understand all the enumerated rights to be limited. The right to free assembly does not mean any number of people can assemble at any place at any time and for any reason. The exercise clause does not allow any action to be legitimised by the claim it is the exercise of a religion. If one sincerely believes in human sacrifice, that's okay, provided you don't actually do it. That is a clear restriction on religious practice, but the exercise clause is not understood to permit human sacrifice. More practically, the court has on several occasions established that anti-polygamy laws are legal. Laws that denied unemployment benefits to Indians who were fired for taking peyote were legal (even though peyote was claimed to be part of a religious rite).

So common law, that underpins the interpretation of the constitution, allows for restrictions on rights when such restrictions are necessary, and the court has, over the years developed case law on what practices are unrestricted and what practices may be restricted. The key here is "necessary".

In an emergency, it is possible that an activity that was unrestricted normally may necessarily be restricted. This is always a balancing act, since "necessarily" is hard to Judge. This is the role of the courts: to look at precedent make judgements in accordance with the Law. However in any a particular situation, the decision of the court may be hard to prejudge.

Answer 3

In cases of governments being allowed to infringe on constitutional privileges the doctrine of strict scrutiny is generally applied. This is especially the case for first amendment issues. The requirements of strict scrutiny must satisfy three requirements.

1. The government must show a compelling interest which generally means national security, preserving life, or preventing worse infringement.
2. The law must be narrowly tailored so that all parts of it relate to the compelling interest.
3. The law must be the least restrictive means of accomplishing the above compelling interest.

In most cases laws held to this are struck down, in the case of Covid restrictions it would likely come down to showing less restrictions in place on equivalent places of gathering similar to places of worship in order to overturn such a rule.

Answer 4

Let's be clear: The US government (on any level) does not need an emergency of any sort to abridge the rights and liberties of individual citizens. The fact that we have laws, courts, and jails is all the evidence we need for this. A government passes laws to restrict certain kinds of behavior — for the benefit of all citizens — and then punishes individual citizens who refuse to comply by restricting or removing some of their rights, liberties, and freedoms. The federal government and many state governments reserve the right to put citizens to death under certain circumstances, taking away those citizens' fundamental right to life; if a government can take away that right, why would any lesser right be sacrosanct?

The Bill of Rights isn't meant to dictate what the government cannot do, despite its strong declarative language; it is not written out in stone like the Old Testament commandments. The Bill of Rights is meant to outline what the government should not do, and to give citizens legal remedies against the government if the government does it anyway. The nature of this legal remedy is that citizens can force the government to justify its actions in court, where the court can then weigh the benefits of the government's actions against the harm done to the citizen. Any governmental action might pass judicial scrutiny if the reasons presented are compelling and the harm expressly minimized. But the Bill of Rights allows those reasons and harms to be forced out into the light of day, where they can be examined and evaluated.

The Bill of Rights could not preclude slavery or Jim Crow; the deep south states went ahead and passed laws that discarded or delimited the rights of African Americans regardless. But the Bill of Rights was the fundamental wedge that brought slavery and Jim Crow to an end, because it was the Bill of Rights that African Americans leaned on to make their voices heard.

Like everything else in US politics, the process is far from pretty. Generally it ends up pitting the selfish interests of one group against the selfish interests of another, all with the general public interest as a backdrop, and involves all sorts of shouting and keening and moaning. Some poor, put-upon judge has to create a credible balance between the interests of this one and that one and everyone, and doesn't always do it well. But there are no hard and fast rules to it. Any behavior that is contrary to the public good can be suppressed — religious expression, freedom of speech, and the right to assemble notwithstanding — so long as the public need is significant and the harm done is neither permanent not excessive. Those who think their group has blanket immunity from governmental interference just because they are a religion are as blindly authoritarian as those who think the government can impose harsh restrictions just because it is the government. In the end, the Bill of Rights forces both to justify themselves before their fellow citizens.