Pandemics and the Constitution

Abstract

The COVID-19 pandemic unleashed a torrent of legal and political commentary, and rightly so: the virus touches every corner of life and implicates many areas of law. In response to the virus, governments, civic institutions, and businesses struggled to protect public health, respect individual autonomy, and enable Americans to satisfy their elemental instinct to congregate with one another.
Our early pandemic response largely failed. Our dysfunction led to deaths and lost livelihoods, in part because public perceptions about the virus, and interventions designed to address to it, substantially fell along predictable ideological lines. We must take stock of these failures so that we can do better when the next pandemic arrives, as it surely will.
We argue that ingredients for broader consensus already exist, even if they remain obscured by political and policy rancor. Americans share the common goal to safely return to families, jobs, schools, places of assembly, pubs, parks, and the myriad of other settings that make up human lives, and also share a fidelity to basic constitutional legal norms that can inform how we respond to pandemics in ways that allow safer returns.
This Article identifies four constitutional principles to shape pandemic policies and enable them to garner broader public acceptance: substantive and procedural rationality, respect for fundamental liberties, equal treatment of similarly situated persons and entities, and sufficient government flexibility to enable officials to nimbly and effectively address emergencies that threaten life itself. Recognition of these norms is essential for all institutions, public and private, because reopening safely can occur only through the cooperation of private individuals. They will cooperate only if they have adequate confidence in the ability of institutions to protect their safety, liberty, and equality.

Keywords: COVID-19, constitutional law, health law, due process, equal protection, liberalism, fundamental rights, liberty, pandemic, discrimination