Vaccine Passports as a Constitutional Right

62 Pages Posted: 25 Aug 2021 Last revised: 18 Oct 2021

See all articles by Kevin L. Cope

Kevin L. Cope

University of Virginia School of Law

Ilya Somin

George Mason University - Antonin Scalia Law School, Faculty

Alexander Stremitzer

ETH Zurich

Date Written: August 24, 2021

Abstract

Does the U.S. Constitution guarantee a right to a vaccine passport? In the United States and elsewhere, vaccine passports have existed for over a century, but have recently become politically divisive as applied to COVID-19. A consensus has emerged among legal experts that vaccine passports are often constitutionally permissible. Yet there has been almost no serious analysis about whether a vaccine passport can be a constitutional right: whether a government is constitutionally obligated to exempt fully vaccinated people from many liberty-restricting measures. While some measures may be unconstitutional regardless of to whom they apply, we argue that there exist certain public-health restrictions from which the vaccinated must constitutionally be exempted, even if the unvaccinated need not be. The government is never constitutionally obligated to impose liberty-restricting measures in response to an epidemic. But where it does so, it often has an obligation to exempt those who, being successfully vaccinated, pose little danger of transmitting the disease or suffering serious illness. Under U.S. constitutional law, vaccinated people might be entitled to exemptions from six sets of restrictions: (1) domestic travel and movement; (2) international travel; (3) uncompensated shutdowns, under the Fifth Amendment takings clause; (4) abortion, under the constitutional right to privacy; (5) restrictions on access to gun stores, under the Second Amendment; and (6) assembly and worship, under the First Amendment freedom of assembly and free exercise clauses. Contrary to some social-justice and liberty-based arguments, this conclusion is also consistent with longstanding liberal principles of fair allocation of costs, equity, liberty, and non-discrimination.

Note: Funding: The study had no costs and was therefore unfunded.

Declaration of Interests: All authors declare that they have no competing interests.

Keywords: COVID-19, vaccine passports, civil rights, constitutional law

Suggested Citation

Cope, Kevin L. and Somin, Ilya and Stremitzer, Alexander, Vaccine Passports as a Constitutional Right (August 24, 2021). Arizona State Law Journal, Forthcoming, George Mason Legal Studies Research Paper No. LS 21-11, Virginia Public Law and Legal Theory Research Paper No. 2021-37, Virginia Law and Economics Research Paper No. 2021-15, UCLA School of Law, Public Law Research Paper No. 21-31, Available at SSRN: https://ssrn.com/abstract=3910194 or http://dx.doi.org/10.2139/ssrn.3910194

Kevin L. Cope (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
WB345
Charlottesville, VA 22903
United States

HOME PAGE: http://www.kevinlcope.com

Ilya Somin

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8069 (Phone)
703-993-8124 (Fax)

HOME PAGE: http://sls.gmu.edu/ilya-somin/

Alexander Stremitzer

ETH Zurich ( email )

Haldeneggsteig 4
Zurich, Zurich 8092
Switzerland

HOME PAGE: http://https://laweconbusiness.ethz.ch/group/professor/stremitzer.html

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