COVID’S Constitutional Conundrum: Assessing Individual Rights in Public Health Emergencies
35 Pages Posted: 11 Mar 2021
Date Written: March 10, 2021
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
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