COVID’S Constitutional Conundrum: Assessing Individual Rights in Public Health Emergencies

35 Pages Posted: 11 Mar 2021

See all articles by James G. Hodge

James G. Hodge

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

Jennifer L. Piatt

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

Hanna Reinke

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

Emily Carey

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

Date Written: March 10, 2021

Abstract

Considerable legal challenges alleging infringements of constitutional rights have arisen against governments imposing social distancing or other restrictive measures to quell the COVID-19 pandemic. Courts assess these claims largely under two variant approaches. Consistent with constitutional re-balancing, judges weigh the application of rights against governments’ compelling interests to protect public health and safety in emergencies. Alternatively, a minority of courts temporarily set aside existing rights to effectuate emergency responses. Neither approach is legally sufficient. Both fail to account for the flexible nature of rights and freedoms in exigencies pursuant to the Constitution’s cohesive design. In public health emergencies, courts should engage in guided assessments focused on the execution, efficacy, and purpose of public health interventions as a constitutional prerogative instead of examining alleged rights infringements framed outside crisis contexts.

Keywords: COVID, constitution, rights, emergency, response, due process, equal protection, scrutiny, court, judiciary, review, social distancing, powers, government, restrictions, public health, declaration, freedoms, efficacy, crisis

Suggested Citation

Hodge, James G. and Piatt, Jennifer and Reinke, Hanna and Carey, Emily, COVID’S Constitutional Conundrum: Assessing Individual Rights in Public Health Emergencies (March 10, 2021). Tennessee Law Review, Vol. 88, No. 1, 2021, Available at SSRN: https://ssrn.com/abstract=3802045 or http://dx.doi.org/10.2139/ssrn.3802045

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

Jennifer Piatt

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

111 E. Taylor Street
Phoenix, AZ 85004
United States

Hanna Reinke

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

Box 877906
Tempe, AZ
United States

Emily Carey

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

Box 877906
Tempe, AZ
United States

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