Public Health Theory and Practice in the Constitutional Design
Lawrence O. Gostin
Georgetown University - Law Center - O'Neill Institute for National and Global Health Law
Health Matrix: Journal of Law-Medicine, Vol. 11, Pp. 265-326, 2001
This article provides a theory and definition of public health law based on the book, Public Health Law: Power, Duty, Restraint (University of California Press 2000). No inquiry is more important to public health law than understanding the role of government in the constitutional design. If public health law principally addresses government's assurance of the conditions for the population's health, then what activities must government undertake? The question is complex, requiring an assessment of duty (what government must do), authority (what government is empowered, but not obligated, to do), and limits (what government is prohibited from doing). In addition, this query raises a corollary question: Which government is to act?
The Supreme Court sees the Constitution in negative, or defensive, terms. This provides a sterile, uninspiring vision of government obligation. While the Court sees few affirmative obligations, it does acknowledge a broad governmental authority to protect the health, safety, and welfare of the population.
The emergence of "new federalism" in Supreme Court jurisprudence alters the division of power between the federal government and the states. By restricting the scope of national authority, the Rehnquist Court is seriously thwarting public health policy and practice.
Often, when the government acts to promote the health of the populace, it limits personal or economic freedoms. As a society, we face a trade-off between the common good and individual interests. The article explains why it is imperative to highly value the collective good of public health.
Number of Pages in PDF File: 69Accepted Paper Series
Date posted: January 11, 2002
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