Those who cannot remember the past are condemned to repeat it.

George Santayana

The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Justice Robert H. Jackson

After just ten months, over 23 million Americans have been infected by the COVID-19 virus, over 384,000 have died from it, and experts predict another 150,000 will die from it by April 1, 2021. That mortality number is higher than the number of combat deaths during any war fought by the U.S.; only the Spanish Flu killed more Americans, but that was over a 24-month period of time.

January 1, 2020 seems like ages ago, when we optimistically thought that 2020 would mean clarity of vision and foresight for the New Year and decade. “Zoom” was something associated with the Road Runner cartoon, and “flattening the curve” meant exercising to reduce one’s stomach bulge. Since then, although the world has turned upside down, legal precedent has not.

To best honor Santayana’s warning, we should learn not only from past pandemics but also from the past months of this COVID-19 pandemic. Indeed, a review of the front-page headlines of The New York Times over the course of 2020 reveals the following retrospective. The January 1, 2020 edition’s front page featured kisses and confetti in Times Square. On February 1, 2020 the Times’ front page announced, “Declaring Health Emergency, U.S. Restricts Travel from China,” and noted that there had been 46 deaths and 12,000 cases from COVID in China, and 100 cases in the rest of the world. By March 1, 2020, a front-page headline warned, “Readiness of U.S. for an Epidemic Raises Fears About Shortages,” and noted that there were 86,000 cases and almost 1,000 deaths from the pandemic, with only 70 cases in the U.S. and one death.

On March 15, 2020, the Select Board for the island town of North Haven, Maine (with an estimated year-round population of 355) voted that anyone who was not a full-time resident was banned from coming onto the island “due to the significant increase in risk associated with the transmission of COVID-19.” The pandemic did not honor April Fool’s Day, instead the April 1 N.Y. Times front page headlined, “Grim Toll Projected, Even With Distancing,” and the article began with statements from the top U.S. scientists “battling the coronavirus . . . that the deadly pathogen could kill 100,000 to 240,000 Americans.” Time would unfortunately prove that prediction to be too optimistic.

Ignoring those public health officials, the President announced that the COVID-19 pandemic would be gone in April from warm weather; that he wanted churches to be packed on Easter and that we should be ready to be “back to business” by May 1, with normal work and buying patterns. Then, on April 29, Jared Kushner said, “I think you will see by June, a lot of the country should be back to normal, and the hope is that by July the country is really rocking again.” That same day, the President echoed Kushner’s predictions with, “I see the new normal being what it was three months ago . . . . Hopefully in the not too distant future, we’ll have some massive rallies and people will be sitting next to each other.”