Constitutional infringements during crises fall into three categories:

• The most egregious generate near-uniform disdain, but usually only once a crisis passes and with benefit of hindsight. Think President Franklin Roosevelt’s internment of Japanese Americans during World War II or U.S. Sen. Joseph McCarthy’s actions during the Red Scare.

• With more subtle losses of civil liberties, the risk is that rights lost during a crisis are never restored. Consider the Patriot Act after 9/11.

• In the third category are truly provisional measures that were appropriate and manifestly needed. Temporary quarantines during past pandemics fall in this grouping.

Now, extraordinary measures are needed to address coronavirus, and some might not be constitutional during normal times. In which category will history place the current infringements?

To decide, we balance the public interest in saving lives with the severity of the constitutional infringement. Actions must be overwhelmingly in the public interest, rooted in reason not pretext, and accomplished by the least intrusive means.

Attorney and former Assemblyman Mike Gatto 

Last month, the Rhode Island governor directed the National Guard – armed and camouflaged – to search and evict New Yorkers due to their allegedly heightened coronavirus risk. This violated Article IV of the Constitution, which forbids states from discriminating against non-residents or restricting their movement. Acts like this fall in category 1, as the severity (door-to-door searches by the military) and illogic (what about Rhode Islanders who traveled to New York?) made it unreasonable.

Also questionable are arrests of pastors seeking to hold services, a First Amendment violation. If a house of worship implements the same careful measures as a retail establishment, why should a church be closed while a hardware store remains open?

Texas recently used coronavirus as an excuse to prohibit abortions. Because policymakers there have manifested hostility toward this right in the past, this will likely be viewed as a pretext to achieve illegitimate ends.

The middle category includes some recent government acts. The Constitution guarantees a republican form of government with checks and balances, yet lately governors and mayors have governed by executive fiat. This may be momentarily accepted because of the crisis, but we must be careful that the state of emergency isn’t extended too long.

The same goes for proposals to make people submit to regular tests to get a pass to engage in activities (moving about, affiliating with whom you wish and earning a living) that are normally considered rights, not privileges. This may make sense at the height of a pandemic, but we can’t let it become the new normal.

Sensible restrictions include constraining the right to protest and petition the government in person. Normally these would be clear First Amendment violations, but as U.S. Supreme Court Justice Robert Jackson noted, the Constitution is not a suicide pact. The last thing this crisis needs is unchecked spread of disease in government buildings and extensive infection of key personnel. Provided these measures are temporary and proportional, they appear to be constitutional and wise.

I’m unsure in which category historians will place other infringements. Second Amendment defenders have noted that in Los Angeles and San Francisco cannabis has been deemed an essential business, but acquiring the means to protect your family is not – even though there is no scientific difference between the risks of spread in the different retail establishments. Closing courts also seems problematic, as it is precisely during these times that the judicial branch of government is most needed.

Almost all the infringements could have been limited if government had acted sooner. Had targeted measures and controls been implemented earlier, perhaps we wouldn’t be discussing whether it’s a worse infringement to cancel an election or force people to risk their health to participate in one.

During a crisis, panic can make every extreme seem justified. Our government must avoid egregious violations that history will deem excessive. The people must ensure that temporary measures don’t become permanent. And better planning can diminish the need to infringe rights in the future.

Attorney and former state Assemblyman Mike Gatto, D-Los Angeles, practices constitutional law.