Constitutional Norms for Pandemic Policy

34 Pages Posted: 26 Jun 2020 Last revised: 27 Jul 2020

See all articles by Toni M. Massaro

Toni M. Massaro

University of Arizona College of Law

Justin R. Pidot

University of Arizona - James E. Rogers College of Law

Marvin Slepian

University of Arizona - James E. Rogers College of Law

Date Written: July 27, 2020

Abstract

The COVID-19 pandemic has unleashed a torrent of legal and political commentary, and rightly so: the disease touches every corner of life and implicates all areas of law. In response to the disease, governments, civic institutions, and businesses have struggled to protect public health, respect individual autonomy, and enable Americans to satisfy their elemental instinct to congregate with one another.

Public perceptions about the disease, and our responses to it, have substantially fallen along predictable ideological lines. For example, the willingness of individuals to social distance may indicate something about their risk tolerance, but also about their political affiliation. Our ability to launch a unified response to COVID-19 has, in other words, been affected by rifts that generally infect American political life.

How we manage these divides over pandemic response matters, because the costs of disunity are high. Those who fear the risk COVID-19 poses to their lives depend on others to participate in mitigation efforts; those who fear the risk our response to COVID-19 poses to their livelihoods depend on others to willingly reengage in economic life. Common ground, while elusive, is essential to America’s response to this pandemic, and the next one that will surely follow.

We argue that ingredients for consensus already exist, even if they are 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 we share a fidelity to basic constitutional legal norms that can inform how we safely return.

This Essay identifies four constitutional principles to shape pandemic policies and enable them to garner broad public acceptance: substantive and procedural rationality, respect of fundamental liberties, equal treatment, and flexibility to enable government to nimbly and effectively address emergencies that threaten life itself. Fidelity to these norms is essential for all institutions, public and private, because reopening safely can occur only through the cooperation of private individuals, and individuals will cooperate only if they have confidence in the ability of institutions to protect safety, liberty, and equality.

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

Suggested Citation

Massaro, Toni Marie and Pidot, Justin R. and Slepian, Marvin, Constitutional Norms for Pandemic Policy (July 27, 2020). Arizona Legal Studies Discussion Paper No. 20-29, Available at SSRN: https://ssrn.com/abstract=3635668 or http://dx.doi.org/10.2139/ssrn.3635668

Toni Marie Massaro (Contact Author)

University of Arizona College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-626-2687 (Phone)
520-621-9140 (Fax)

Justin R. Pidot

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

Marvin Slepian

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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