Gov. Kate Brown detailed her plan to reopen the state last week, saying better testing and contact tracing will be key to lifting the stay-home order. While some regions may be able to start opening as early as May 15, Brown warned other parts of the state may take longer.
The day after her announcement, with hundreds of Oregonians gathered in front of the state Capitol in Salem to demand the state open faster, truck driver Mike Pyle drove his American flag-adorned dump truck up onto the sidewalk to loud cheers from the crowd.
“Are you ready to reopen Oregon?” Pyle yelled into a bullhorn. “Do you want to go to the state fair? Do you want to celebrate the 4th of July? Then let’s get to work!”
Like rallies across the country, the people attending in Oregon weren’t just there to talk about reopening the economy. There were members of the conspiracy group QAnon advancing unfounded theories that the death toll from the virus is fabricated or that it’s part of a government mass vaccination plot. There were members of the III% militia and members of the Proud Boys, a violent extremist group that espouses a white nationalist ideology.
Attendees were near-universal in their contempt for Brown. Many said the government has exaggerated the threat of the coronavirus and that the shutdowns were a tyrannical overreach.
“I should be free to live my life,” said Jordan, a Portland-based tech worker who didn’t want to use his last name for fear of repercussions at work. “I should be free to go and get a haircut. I should be free to go to the store. I should be free to go play golf or whatever I want to do.”
University of Oregon constitutional law professor Ofer Raban says Jordan’s point of view gets at a tension built into the constitution.
“The federal constitution embodies two grand political theories that in fact are sometimes in opposition to each other,” Raban said. “And that is indeed the theory of Liberty — the theory of individual freedom, and the theory of democracy.”
For the protesters, the order is clear: their liberty comes before democracy. But for the majority of Oregonians democracy comes first.
“Let us not forget that these stay-at-home orders and this shutting down of the economy are the result of the democratic process,” Raban said. “They are the result of the decisions made by elected officials.”
As for the constitutionality of the orders themselves there is little question. The constitution contains no absolute rights. In fact, when it comes to protecting the health or safety of its citizens, the government has extraordinary powers at its disposal.
Raban points to the military draft. The government can conscript healthy young people against their will and send them to die in wars thousands of miles away. Yet it doesn’t violate the constitution.
“Insofar as the claim is that there's a certain absolute right to liberty, or to economic liberty, no matter what, that is just factually and legally wrong,” Raban said.
But the constitution isn’t a straitjacket. Constitutional rights can depend on context. Judges, often reluctant to question democratically elected leaders during times of emergency, might be more inclined to second-guess the necessity of certain restrictions on our freedoms as circumstances change.
As a rally goer yelled to the crowd, “Who’s afraid of the big bad Wuhan flu,” Adam Ellifritt, one of the rally organizers, ducked under a tent to get out of the rain.
“What we support is a reopening of Oregon with social distancing guidelines in place,” said Ellifritt, who understood the restrictions initially but now said the economic harm is far greater than the danger to public health. “I don’t think we’re going to see businesses at full capacity if we flip the switch.”
But opening at partial capacity might not provide the economic relief Ellifritt hopes.
“Fine, let restaurants open up at 50% of capacity,” said University of Oregon economics professor Tim Duy. “Go talk to a restaurant owner, and ask what their margins are and whether they can survive at 50% capacity.”
Many businesses operate with very tight profit margins. Half the customers means half the revenue while many costs, like rent, would remain unchanged. For a lot of businesses that will mean they’re no longer sustainable.
Duy says the U.S. economy can support significantly higher levels of debt than previously thought and that for now, the country can survive on economic support packages like the $2.5 trillion Congress has approved since March.
Unfortunately, the pandemic has also revealed major shortcomings in the country’s social safety net.
“We've had 40 years of being told that the government is not the solution to any problems,” said Duy. “And I would argue that we've deliberately made government ineffective to sort of prove that.”
The pandemic has laid bare gaping holes in public health and state unemployment systems, for example, which have both been underfunded for decades. Still, Duy said it would be an even bigger mistake for governments to cave to pressure and reopen too soon, risking another outbreak.
“We'll find ourselves closing the economy back down,” he said. “So then that would mean all the work we just went through was wasted.”
That, in turn, would crush consumer confidence. And without consumer confidence Duy says nothing the government does to reopen the state will matter.