Constitutional Cohesion and the Right to Public Health

45 Pages Posted: 24 Apr 2019 Last revised: 20 Oct 2019

See all articles by James G. Hodge

James G. Hodge

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Daniel Aaron

Harvard Law School; Heyman Fellow

Haley Augur

Arizona State University (ASU), Sandra Day O'Connor College of Law, Students

Ashley Cheff

Arizona State University (ASU), Sandra Day O'Connor College of Law, Students

Joseph Daval

Yale University, Law School, Students

Drew Hensley

Arizona State University (ASU), Sandra Day O'Connor College of Law, Students

Date Written: April 3, 2019

Abstract

Despite years of significant legal improvements stemming from a renaissance in public health law, Americans still face major challenges and barriers in assuring their communal health. Reversals of legal reforms coupled with maligned policies and chronic underfunding contribute to diminished public health outcomes. Underlying preventable morbidity and mortality nationally is an interpretive reality of our existing constitutional infrastructure. In essence there is no general obligation of government to protect or promote the public’s health. Under principles of “constitutional cohesion,” structural facets and rights-based principles interwoven within the Constitution protect individuals and groups from governmental vices (i.e., oppression, overreaching, tyranny, and malfeasance). Structural impediments and rights infringements provide viable options to challenge governmental efforts inapposite to protecting the public’s health. Through corollary applications framed as auxiliary, creative, and ghost righting, courts are also empowered to recognize core duties or rights that the Constitution may not explicitly denote, but assuredly contains, to remedy identifiable vices. Notably, ghost righting charts a course for recognizing a constitutional right to public health that Americans are owed, and government must respect, to assure basic public health needs.

Keywords: constitution, structure, rights, public health, health, federalism, separation of powers, freedom, court, Supreme, renaissance

Suggested Citation

Hodge, James G. and Aaron, Daniel and Aaron, Daniel and Augur, Haley and Cheff, Ashley and Daval, Joseph and Hensley, Drew, Constitutional Cohesion and the Right to Public Health (April 3, 2019). University of Michigan Journal of Law Reform, Vol. 53, No. 1, 2019, Available at SSRN: https://ssrn.com/abstract=3365279

James G. Hodge (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Sandra Day O'Connor College of Law
111 E. Taylor Street, MC 9520
Phoenix, AZ 85004-4467
United States
480-727-8576 (Phone)

HOME PAGE: http://https://law.asu.edu/degree-programs/public-health-law-policy

Daniel Aaron

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

Heyman Fellow

Cambridge, MA

Haley Augur

Arizona State University (ASU), Sandra Day O'Connor College of Law, Students ( email )

Box 877906
Tempe, AZ
United States

Ashley Cheff

Arizona State University (ASU), Sandra Day O'Connor College of Law, Students ( email )

Box 877906
Tempe, AZ
United States

Joseph Daval

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

Drew Hensley

Arizona State University (ASU), Sandra Day O'Connor College of Law, Students ( email )

Box 877906
Tempe, AZ
United States

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