Tuesday, June 9, 2020

Objecting to Curfews, For One of the Numerous Compelling Reasons -- Part 1

A government-imposed curfew -- especially an executive-imposed government curfew -- should always be met with suspicion and vigilance, and whatever may be offered as the justification for it ought to be received with the greatest skepticism.  If a curfew must ever be tolerated, it should be required to satisfy the highest standards of necessity, legality, and justice.  By its nature, a curfew, when and where it is in effect, confines every person subject to it within narrow bounds, in defiance and in violation of the fundamental right of freedom of movement.

To allow people to move about freely (and to do so without having to trespass on the property of one person after another) is the very purpose of public roads and sidewalks.  We are all familiar with measures that sometimes interfere with this use of the roads (such as road or lane closures, usually to facilitate road construction or repairs or to allow for the removal of an obstruction) or sidewalks, but none of these deprive people altogether of the ability to move freely over the roads and sidewalks.  They certainly are not meant to deprive people of freedom of movement; the opposite is usually closer to the truth.

In contrast, the very purpose of a curfew is to deprive certain people -- or to deprive all people in the area, depending on the curfew in question -- of the ability to use roads, sidewalks, and any comparable public* property in exercising their rightful freedom of movement.  However harmlessly and peaceably a person might conduct him- or herself in doing this, and notwithstanding that the right to travel over the same streets and sidewalks would at all other times be as undisputed as it would be indisputable, the effect of the curfew (for the curfew's duration) is to expose the person to the threat of arrest and prosecution for a fundamentally innocent act.

Of course, I acknowledge that when a curfew is established, either legislatively or by invoking an executive power (one which some people presumably would insist has something to do with the law), those responsible intend to serve some purpose by establishing it.  I am under no misapprehension that people who put curfews into place do so without desiring that anything result from it.  When people act, I expect them to have some kind of motive; what would surprise me would be if I were to learn that they had acted without having any kind of motive whatsoever.  As a result, when a legislature or a governor (or a mayor, when no more formidable an executive is available) establishes a curfew and thereby makes utterly innocent conduct punishable as a crime, the knowledge that the person or persons who put the curfew into place had a motive will not, on its own, cause me to approve of that action than it would cause me to approve of every other action that every person has ever taken or ever will take.  Instead, I would need to consider the action itself, decide whether the motive is in its nature even capable of justifying the action, and then decide whether the motive does justify the action, which may depend on whether the motive rests on a sufficiently sound factual basis or whether it is little more than an impulse accompanied by an explanation for it constructed after the fact (something that suddenly flashed within the mind of a coward, for example, which motivated him to act).

I have many points to make, and that need to be made, about curfews -- in addition to important points that do not directly relate to curfews, which you will be able to find here once I have written about them -- but I have chosen to begin with these remarks on the odium of curfews in general.  The curfew is only one of the many weapons that executive officers of government throughout the United States have grown much too comfortable during 2020 (especially during 2020) using against the people whose rights it is their obligation to defend.  When I focus on specific points relating to curfews, however, I will want to have already made this point clear: When a curfew faces criticism, no one should ever give the benefit of the doubt to the curfew.

* I have not seen the curfew orders issued by cities in states other than Indiana, but the curfew orders that I have read that have been issued by Indiana cities claim to apply to private property in addition to public property, if that private property is "accessible to" the general public.  The orders have specifically identified "driveways" as places where people were forbidden to go.

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