Dershowitz says rights are a balancing act. Some people have the right to not wear masks, others have the right to not be breathed upon by those who could give them COVID. What about the scenario of highly immunocompromised individuals wanting to go about and live normally in society? Do these miniscule numbered individuals have a right to compel the rest of society to wear masks (or even hazmat suits) so that no one breathes on them, imperiling their health? Or doesn’t the rest of society have a right to live normally, and it is up to these individuals to cope with the dangers, a normally functioning society poses to them? Further, why shouldn’t this principle be extended to the management of COVID-19, given that for most people, COVID-19 is not a threat?
Then there is the matter that everyone’s rights must be stripped away, because of the mere possibility someone may pose a threat to others. Probability is not factored in, where you might say, because someone is showing symptoms of having COVID-19, it is best he is asked to stay home until his symptoms go away, otherwise, he has a right to live his life normally. It is like the court setting the bail for someone who has a record of being an upstanding citizen, and is no flight risk at all, the same amount as a serial perpetrator of serious crimes.
The courts seem to live in this ivory tower, where there are no bad actors, and that there is no necessity for laws to be interpreted in ways that make it difficult for those with anti-democratic intent, to succeed. Courts should be far more skeptical of entities taking onto themselves a great deal of power in a crisis, and should be biased toward adopting alternative solutions, that less negatively impact citizens’ rights and their liberties, in a broad way.