Public Health Emergencies and State Constitutional Quality
24 Pages Posted: 17 Feb 2021 Last revised: 12 Mar 2021
Date Written: 2020
I am pleased and privileged to contribute to this Festschrift in honor of Professor Robert Williams. No legal scholar has contributed more to the cause of enhancing the profile of state constitutionalism and state constitutional law than Bob Williams. He has advanced the field immeasurably, through his teaching, his scholarship, his mentorship of many law professors in this field —including this author,— and his role in leading the peerless state constitutional law lecture, given annually and destined for the pages of this law review.1 Many of us have been ever shaped by his approach to this field, one which looks at not only judicial interpretation of state constitutions—a topic which became much in vogue after the publication of Justice William J. Brennan’s famous 1977 Article, State Constitutions and the Protection of Individual Rights,—2 but at the deep structure and broad elements of state constitutionalism. With Bob Williams’s leadership and encouragement, many are focusing anew on matters of federalism and of state constitutional design.3 It is within this latter tradition that I offer this Article.
As I write this, we are in the midst of a historic era in American regulatory law, one in which state government officials have implemented draconian restrictions on individual and business behavior, all under the rubric of the state police power and accompanying statutes that authorize aggressive state governmental action.4 As disputes over the government’s legal authority to impose severe regulations continue to work their way through the courts,5 commentary will grow over the merits of particular decisions. Moreover, there have already been valuable contributions to the discussion of how best to frame these legal challenges under the rubric of Jacobson v. Massachusetts, the seminal 1905 case that addressed the balance to be struck between public health actions under the police power and civil liberties.6 My focus here is not on this constitutional adjudication, either in the particulars of the disputes or in the general approach courts should follow in resolving these controversies. Rather, I want to look at this issue from a structural perspective, asking how best to think about constitutional and institutional design given the challenges raised by the most remarkable health emergency presented by coronavirus disease 2019 (“COVID-19”).7 Consider this Article as a thought experiment, one that looks at how we might redesign state constitutions to enable government to respond most effectively to these kinds of emergencies.
Keywords: public health, regulation
JEL Classification: K19, K20
Suggested Citation: Suggested Citation