Constitutional Rights in a Pandemic

When does public health override individual rights?

Lockdowns and social distancing impinge on activities that are protected by the Constitution. That’s been true in many states of church services and in some states of abortion. When the cases have come before they courts, they have often turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, which upheld a state law requiring smallpox vaccination. Courts are all over the map about what Jacobson means in the 21st Century.

Some judges have viewed Jacobson as providing a special constitutional standard during epidemics. As I show in a new paper, history doesn’t support that view. The Supreme Court wasn’t trying to create a special standard for public health emergencies, and later Supreme Court cases have never treated Jacobson that way.

Other judges have essentially ignored Jacobson, utilizing “business as usual” legal analysis that ignore the crisis conditions under which the government must contend with today. That seems equally wrong to me. The government is required to deal with a fast-changing situation presenting risks of catastrophic loss of life, under conditions of uncertainty.  Courts would be wrong to ignore that situation.

In national security cases, the Supreme Court applies the normal constitutional tests but gives extra deference to the government. Many of the reasons are very similar to the coronavirus situation, involving the need to make decisions to avoid serious national harm in a rapidly changing, highly uncertain situation.  That doesn’t mean that courts automatically uphold government decisions.  In the War on Terror cases, for instance, the Court intervened repeatedly to limit government overreach. On the other hand, courts don’t try to make their own determination about what measures are needed to protect national security, and they shouldn’t make their own public health decisions in a pandemic.

Maintaining the proper balance between oversight and deference is no easy matter. But it’s better than the other alternatives: treating pandemic responses as courts would treat routine government actions, or giving the government a blank check to override individual rights.


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Reader Comments

5 Replies to “Constitutional Rights in a Pandemic”

  1. Interesting that you should bring up individual rights, because it is not only the Trumpzis that override individual American rights.

    UC is also known to marginalize, a worst case scenario being the rights of the greatest American born genius in history Linus Pauling, who won two unshared Nobel Prizes (Chemistry and Peace, and he was the father of molecular biology that has been so important to Berkeley). Linus Pauling dared to champion peace protests during the Viet Nam War era. But UC Powers that Be, from pre-eminent scholars to regents, overrode his rights by marginalizing him while at UCSD because they feared for the safety of their financial support because he championed peace so vocally, as documented in “The Life of Linus Pauling” by Thomas Hager. So they forced him to leave UC.

    Has UC ever apologized to Pauling or his family since they committed their failure in integrity?

  2. Sad that there is no response to my concluding question by today’s UC powers that be at LP, especially since Pauling’s discovery of molecular biology has resulted in major improvements in the health of the entire human race, as well as enriching Berkeley because the Department of Molecular and Cell Biology is housed in six buildings at Berkeley today.

    1. Since you choose not to respond because of Hofstadter’s Law of Academic Purity, I just checked the Berkeley Chemistry website and discovered the position of Linus Pauling Professor of Chemical Engineering exists at Berkeley.

      That sort of answers my question, but I still think what UCSD and the regents did to Pauling is still appalling and unforgivable, especially since my wife’s life is being saved today by immunotherapy that Pauling’s genius made possible.

  3. Glad to hear your wife profited because of Pauling.

    The lack of response by the UC IS your answer.

    The criminal establishment liked Pauling when he did not encroach on their bottom line and served their purposes. As soon as he did step on their bottom line, and served primarily the public, they demonized him as some deluded idiot.

    Here is a good example of a hack MD who has been discrediting Pauling and supplements with disinformation and lies: search for the scholarly article “2 Big Lies: No Vitamin Benefits & Supplements Are Very Dangerous” by Rolf Hefti, a published author of the Orthomolecular Medicine News organization.

    But you can’t discredit the facts Pauling presented with lies or shower him with ad hominems. That only exposes and discredits the liars (see cited source above).

    1. The decline and fall of UC integrity has occurred because far too many academics, administrators and regents have indentured themselves to the Power of Money instead of fighting like hell for the human race.

      Today we are overwhelmed by global warming destruction, pandemic death, social, political and economic chaos as a result of the failure of our universities to protect the human race.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

READ more