The Pandemic And The Constitution

Faculty at the O’Neill School of Public and Environmental Affairs, where I teach, decided to put together a special course addressing issues raised by the pandemic. Those of us involved will each teach one class session; mine, unsurprisingly, will look at the civil liberties issues involved. The question I will explore is whether and how much government can limit individual rights in order to discharge its duty to protect citizens’ health and lives.

When I began to do some research in preparation for the class, I found the pandemic raising a more significant number of constitutional issues than I had anticipated. Many of those issues lack clear answers.

One of the most visible—and contentious—of those issues involves federalism. Federalism, as readers of this blog know, is the structure under which government jurisdiction is divided between federal, state and local units of government. What does the law say about the role of the federal government in a pandemic? What powers are reserved to the states?

There has been a great deal of public and official confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, and at the same time has disclaimed responsibility for tasks that he says are state responsibilities. Several of his statements have been inconsistent with the Constitution (I know–you’re shocked), which vests primary responsibility with the states, and anticipates support, co-ordination and assistance from the federal government.

Other questions: Does a pandemic allow government to impose more stringent limits on the First Amendment right to assemble? This issue arises in several ways: citizens have  protested state orders requiring masks and social distancing (some of those protestors have been armed). Those eruptions have been much smaller (and weirder) than the massive  Black Lives Matter demonstrations following the murder of George Floyd–but both challenge efforts to control the pandemic.

Then there are the shutdowns, the “stay-in-place” orders. Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. (Government does have to demonstrate the reasonableness of those measures and their utility in ameliorating the threat of contagion.)

What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” Can they do that?

We are hearing a lot about new cellphone apps being developed to permit “contact tracing.” That technology has been met with considerable alarm from privacy advocates and organizations concerned about increasing government surveillance. The potential for misuse is high–and limitations on use of these technologies remain legally ambiguous.

The right to vote is obviously a critically-important constitutional right (not to mention a necessary guarantor of democracy) and the pandemic has further enabled efforts at vote suppression. Conflicts about the availability of absentee ballots for people fearful of the Coronavirus have already erupted, and efforts to expand vote-by-mail are being frantically resisted by Republicans. (The debate is further complicated by the evident inability of many states to handle increased voting by mail.)

Several states have used pandemic restrictions to justify denying women access to abortion. There is considerable debate about the degree to which those restrictions can be imposed, and a case from Texas (of course!) has been appealed to the Supreme Court.

The First Amendment’s right of Assembly and its Free Exercise Clause have both been cited by religious organizations—primarily churches—that are challenging limitations on in-person gatherings. In the cases of which I’m aware, the churches have lost.

Incarcerated persons, and those being detained by ICE face hugely increased medical risks and unique constitutional questions: what about an inmate’s right to consult with his or her lawyer? At what point do the conditions of confinement–the likelihood of contagion– rise to the level of “cruel and unusual punishment”?

A fascinating case that has recently been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of deliberate disinformation be held liable for damages? The case is Washington League for Increased Transparency and Ethics v. Fox News .The complaint alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

It is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the equivalent of “falsely shouting fire in a crowded theater.”

And you thought the only thing to fear was the Coronavirus itself…


  1. It looks like Trump and his #2, Bill Barr are exploiting the moving target of federalism as best it suits their political moment or strategy. Anything that they see as advancing Trump’s control over the nation or his election prospects becomes their domain. Anything that they can’t directly control and handle, they fob off onto states and local authorities so they have somebody to blame if things go sideways.

    This is what fascists do, though we haven’t seen that much in our constitutional republic…. until now. While we still have the right to vote, we all must get rid of these criminal attacks on our liberties, the rule of law and the Constitution. Both Trump and Barr are flaunting the law every day. When Republicans are finally removed from power and control of the Senate, maybe some justice will finally be served against these two very, very bad people.

    I just can’t get the image out of my head of Bill Barr smirking during a TV interview saying that history is written by the winners. I wonder how he’ll appreciate that glibness when he’s wearing an orange jumpsuit.

  2. Most, if not all, of these Constitutional questions would have never seen the light of day had there been good, sound and knowledgeable leadership from the President to begin with. Instead we get nothing but a daily dose of the most outrageous lies, distortions, distractions and contradictions any of us have ever witnessed in our lives.
    It’s Trump’s virus. It’s Trump’s pandemic. And the silent, go along to get along Republican Party is going to have to live with that for a long, long time.

  3. As a child growing up in the 1940’s and 1950’s, childhood diseases were an accepted fact of life. In the 1940’s doctors were required to report to Public Health all cases of childhood diseases. Public Health would attach a large warning sign on the front of our homes (I think they were yellow) of the disease in the home and that only family members were allowed in and out. Did anyone ever question at the time if this was against our Constitutional rights or if our parents and siblings could be carriers of these diseases. Diseases which spread quickly within families and through school classrooms and neighborhoods in epidemic proportions and diseases which could become fatal. I nearly lost my 11 month old son to Chicken Pox. Today they are making reappearances due to those who chose not to vaccinate their children, contrary to laws requiring proof of vaccination to enter schools to prevent epidemics.

    Influenzas presented different health situations due to attacking all ages and causing fatalities within all age groups. Vaccines became available but not required by law; was this an oversight or a civics matter? Our federal government has, until the Trump administration, had the good sense to send out warnings of impending influenza epidemics which state governments upheld and sent out their own warnings. Trump didn’t even forewarn the possibility of a coronavirus epidemic; not even when it spread throughout China and on into Europe and other countries turning it into a Pandemic which has since been found to be in this country long before any warning was issued by our government.

    “The First Amendment’s right of Assembly and its Free Exercise Clause have both been cited by religious organizations—primarily churches—that are challenging limitations on in-person gatherings. In the cases of which I’m aware, the churches have lost.”

    The churches, under the guise of Trump’s evangelicals, have turned our First Amendment into their Biblical enemy with only their version of protection being valid just as the NRA with Trump and McConnell’s support have turned the Second Amendment into their version of militia self-protection ownership of military level weapons on our streets.

    Common sense should tell us that masks and social distancing and foregoing large crowds at this time to prevent spreading an unknown virus is a protective measure, a virus which has the medical world confounded seeking treatment and prevention. That major businesses and corporations have closed their doors to prevent further spreading of the virus should be a clue as to the enormity of the situation we are struggling to understand and survive. We cannot legislate common sense into people any more than we can legislate against stupidity. The written word only has meaning to those who take time to understand what the words mean.

  4. In 1954 (I think) I was a Polio Pioneer, receiving the Salk vaccine at school. I received a button and a card acknowledgement. The vaccine was developed to prevent the spread of polio, a horrible viral disease that left many crippled and unable to care for themselves – or worse. I don’t remember an outcry when the vaccine was approved or when it was suggested that it be administered to school children, because people had witnessed the effects of the disease and recognized the benefits of the vaccine. Vaccines have a track record of preventing disease and death and improving public health. I suppose nothing is without some risk, but the risk from vaccinations is significantly less than being unvaccinated.

  5. Regarding people who claim their freedom is being infringed by a requirement to wear a mask:

    They don’t complain when they are forced to drive slowly in school zones, or to come to a full stop when kids are getting on or off of a school bus. They don’t complain when they are forced to show proof of insurance to register a car. They don’t complain when they have to show an ID in order to vote, or to cash a check at a branch of their bank that they have never used before. There are lots of things we are told to do in order to keep the nation chugging along smoothly.

    So why do these people go batshit crazy when the authorities tell them to wear a face mask to reduce the spread of a deadly disease? A deadly disease, not the common cold, or even the flu. A disease that has no cure, or vaccine. A disease that has the potential to kill a substantial number of the population. A disease that has already killed about six percent of the people who have contracted it.

    From what rock have these people crawled out from under?

  6. Pascal,

    It’s an orange rock. A rock carved in the shape of a psychopath who has run the long con game on desperately ignorant people. That rock. Those people.

  7. Can we acknowledge one thing? If it weren’t mask-wearing that so many right wingers were rebelling against, it would be something else. We have seen a parade of nimrods, dressed in camo, and toting semi-automatic and automatic weapons over the past three years. They come out en masse to protest every perceived slight to their egos, which apparently are the most fragile items on earth.

  8. The confluence of the roiling COVID-19 Pandemic; major disruption of the economy; and the crisis of racial unrest supported by significant White support for Black grievances seems far too vexing for the incumbent President to provide strong governance and leadership to win confidence of the general public. His base fear they have far too much to lose among issues they obsess over and covet. This is a very interesting post by Shiela for every civic minded voter to consider before November.

  9. Good morning Sheila!

    I love this particular subject and it raises so many issues. I am not one that’s been educated and a lot of this stuff, but I wish I had been more into it when I was younger.

    I’ve been arguing with some individuals on Quora, well, not so much arguing, because if you do they’ll delete your comments, LOL, but debating would be more like it.

    I know that the federal government can institute quarantines and enforce vaccines, but if the federal government does not, then the states can pick up the baton and run with it. I know that they are given the authority as you said, by the Supreme Court. And, considering the amount of pandemics that have been arrested by vaccines, it boggles the mind when you listen to these anti-vaxers.

    When do First Amendment rights clash with human rights?

    When does the right of those who want to assemble in some hotbox sauna venue while a pandemic is raging, interfere with the rights of people who do not want to catch some communicable pandemic infection? Who takes priority? Well, I believe those who wish to not die from being infected by ignorant lemmings, have the upper hand in this one. After all, life, liberty and the pursuit of justice? Life should be above all else, then we work on the quality of that life. Look at how many of these folks, anti-vaxers and such who won’t take a vaccine to protect the community, but will gulp down hundreds of dollars of preacher authorized snake oil?

    And then, you have armed insurrectionist’s storming statehouses because they don’t want to wear face masks to protect the community against the spread of pandemic infections! So, they have the right to protest, but they don’t have the right to intimidate by flaunting 2nd amendment rights. First Amendment rights are much more important that’s why they’re the First Amendment. The Second Amendment fanatics want to be able to run roughshod over the rest of the Constitution by misinterpreting the right to bear arms against your government.

    And, eventually they will dismantle the rest of the Constitution if left unchecked so all we have is the 2nd amendment as the Constitution.

    Those who claim to be originalists, do not want the Constitution to be a living breathing document, but wanted to be a dead mummified musty dusty parchment!

    And, a news organization spreading propaganda, is not a news organization and therefore is not protected under First Amendment rights. And if it’s propaganda against the government, well, our government has been weakening that for a while now.

    Here is an interesting link to that problem!

    When can a propaganda churn disguise itself as a news media/press to protect itself with the First Amendment? FOX, OAN, Newsmax, and the like!

    So, do individual rights actually usurp the rights of society? Do the rights of fanatics and conspiracy theorists usurp the rights of citizenry as a whole?

  10. I follow the National Constitution Center’s podcasts hosted by director Jeffrey Rosen. Recently he focused on policing and protests. Informative and balanced.

  11. common decency is a must,and often offered by anyone.. up here in NoDak its fly by the seat of ones say about 10-20 percent who frequent the big box stores wear a mask. small retail, hardly. my wife works at truckstop ,is masked, she serves food,and is a clean up nut. im wondering everyday if some trucker from elsewhere will abide by the needs of others,before his own.. most construction jobs, here, i never see a mask.. one kind worker informed me of two cases on his job site,and never said a word to me,for two more loads delivered over three day period. and he likes to stand in front of you when he talks.. just ignorant,and following the great orange covid 20. ive heard the talk, cant tell me what to do! yea, until ya kill grandma with your need to…its a island with a wall around it here.. either fend off by staying remote,and in my semi truck,looking far not many cases here. this weekend, NDSU is having a drive thru screening, in Fargo for 1500. anti body or tests.. i was actully inpressed, 150,000 tested in a state that is about 500,000 acording to NPR.. we may even be in the black next year too! my wife and i braved a restaurant last night, nice place,spread out, only one other table occupied, in a big room,and us. plenty of room. the outdoor venue to eat, packed,,no masks. we wear the masks, and keep distance.. like general rule, we dont tred on others needs,and especially,thier right to live a full life.. as far as constitutional rights, as far as we see it, get your damn act together,what this is about,is not some run of the mill dodgeball right is to see im safe,and you are to. making fun of this is making fun at those who have died,or immune systems,that, maybe compromised. ones dna will be tested and it may not like this virus. unfortunatly,the Native American structure,like the days of spanish discovery,has again put these people at a greater risk. a disease that will kill and not be kind to them after the fact.. if one can not accept that others exist,and have a place in society, then they have been reduced to being a less than human…like that orange covid 20..

  12. The expectation of Federalism is to respond, at the start of WW 2, FDR did not tell the states – “You are on your Own”. Ike did not tell the states build an Interstate Highway if you want. If a hurricane smashes into the Gulf States, we do not say – Too bad, So sad The Feds, States and Locals respond.

    We look to the Federal Government to lead and also lend and direct it’s resources. Bush the Younger’s response to Katrina – “Brownie, you’re doing a heckuva job”.

    Then we have Obama’s response to hurricane Sandy, Chris Christie: “The President has been all over this. He deserves great credit.”

    The Trumpet’s response to Corona – deny, deny, deny and then push off the responsibility for leadership to others. The result was a wet dream for the small government crowd, each state or local government unit was on it’s own. Some took a cautious approach, others took the pedal to metal -Open it up – Damn the Torpedoes Full Speed ahead.

    The Trumpet made a deliberate choice to avoid taking leadership. Here The Trumpet appointed Pastor Pence to take control and lead. Pastor Pence’s primary job description was to take the flack and protect The Trumpet.

    Leadership implies responsibility. The last thing The Trumpet wants is responsibility.

  13. Doesn’t federalism work as best as possible via nudges? That is, if you agree to have maximum speed limits of 65, you can get Federal money for your highways…if you agree to expand Medicaid, Feds will pay 90% of it, etc.

    Lead the horse to the common good water and (much of the time) it will drink. If it doesn’t, than its “owners”, the voters have to act. It happens – several red states have expanded Medicaid.

  14. The federal government is one of delegated powers, but just what is “delegated?” If such powers of the federal government are not clearly set out in the Constitution, then we have another “delegation” of powers via numerous statutes of an ill-equipped Congress to (typically) the president to carry out (e.g., the Constitution gives all trade powers to the Congress, but the Congress delegates substantial hunks of such powers to the president to effectively further legislate via rule and reg as well as carry out – see Trump’s runaway use of tariffs). Thus (theoretically at least) Congress makes the laws, the executive branch carries them out, and the judiciary plays referee in the endless struggle between the other two branches.

    Trump, of course, with the help of an Opus Dei AG who favors both religious and secular authoritariansism and who claims Article II of the Constitution makes presidents dictators, wishes to abolish such distinction as set forth in the Separation of Powers Clause. If he is successful then we can stop pretending we have a democracy and prepare for a reign of terror mit der jackboots, storm troopers and late night visits from the gestapo. Civil liberties? What’s that? Citizen vs. State? Guess who wins? Elections? Who needs ’em? All are victims of the Memory Hole. We’ve always been at war with Oceania, ’cause Big Brother said so. Welcome to 1985, the year after. . .

  15. I realize when I’m here chatting with all of you, but especially Sheila, how much I don’t know about the role of Constitutional Law as the basis for civil society. So much to learn. That’s not surprising though from the perspective of how much human knowledge exists about everything. I try to keep up with the knowledge explosion as I have the time to invest in these retirement years and I was born with the same kind of curiosity that i observe in our Siamese cat who is determined not to let anyone do anything out of her intensely close observation and touch. She is much more successful than I am. I’m still going backwards as human knowledge explodes around me.

    Back in the day, as us mature people like to say, there were many fewer of us and much less was known yet the notion of valuable expertise was baked into society. Individuals with it were also generally called “professionals” and were available to spread their expertise when there was a need.

    Now it seems that everyone is entitled to know everything either because they actually invested in education or because they want to so will make up something based on, well, their biases and self interest. No more experts or professionals.

    That now includes our President and in fact most of the “team” he recruited to destroy Constitutional law and order. He simply has no idea what he’s doing so does whatever best suits him and his collection of toadies cheer him on.

    All I can say is that with all that is known, how we choose to operate as a society in this regard is grossly dysfunctional. Not only are we not taking advantage of what is known we actually run counter to reality much of the time.

  16. Sheila states that her charge is to “explore whether and how much government can limit individual rights in order to discharge its duty to protect citizens’ health and lives.”

    That question caused me to refer to a summary of the Bill of Rights in which they remind the reader of the last two amendments that “respectively spell out that this list of individual protections is not meant to exclude other ones, and, by contrast, set forth that all powers claimed by the federal government had to be expressly stated in the Constitution.”

    That left me a little cold, and so I turned to my bible…a book written by two Harvard University professors Steven Levitsky and Daniel Ziblatt titled How Democracies Die. Toward the end of the book, after they concluded that the constitution, with its amendments, is a relatively brief document that is unable to cover every situation that we demand of it, they write

    “When American democracy has worked, it has relied upon two norms that we often take for granted, mutual tolerance and institutional forbearance. Treating rivals as legitimate contenders for power and underutilizing one’s institutional prerogatives in the spirit of fair play are not written into the American Constitution. Yet without them, our constitutional checks and balances will not operate as we expect them to. Without innovations such as political parties and their accompanying norms, the Constitution they so carefully constructed in Philadelphia would not have survived. Institutions were more than just formal rules; they encompassed the shared understanding of appropriate behavior that overlay them. The genius of the first generation of America’s political leaders was not that they created foolproof institutions, but that, in addition to designing very good institutions, they gradually and with difficulty established a set of shared beliefs and practices that helped make those institutions work. Written into our founding documents and repeated in classrooms, speechs, and editorial pages freedom and equality are sefl-justifying vales. But they are not self-executing. Mutual toleration and institutional forbearance are procedural principles, they tell politicians how to behave, beyond the bounds of law, to make our institutions function. We shold regard these procedural vales as also sitting at the center of the American Creed, for without them, our democracy would not work. This has important implications for how citizens hold our government accountable.”

    My fear is that our current society, including our politicians at every level, is so ill informed and fractured that the guardrails provided by these two norms, mutual tolerance and institutional forbearance might be lost forever.

  17. Sheila, your class will be great. While we all yearn for neat, clean answers on complicated issues, it’s infinitely more interesting and engaging when the answers are messier and challenge our own beliefs. To find the answers, your students will have to look deeper into the constitution’s development and varied applications and democracies’ foundational values. Your class discussions should be lively indeed. Wish I were there.

  18. And what does the Constitution say about the right of the president to hasten the deaths of thousands of American citizens in order to boost his reelection chances (yes, we’ve endured several wars where the goals were similar)? Are there no limits here? With long-range estimates projecting 200,000 Covid-19 fatalities, more than half will be directly linked to the White House’s failure to provide any kind of coherent leadership to fight the disease. This is non-controversial. If Trump simply adopted Governor Cuomo’s approach, he could prevent tens of thousands of deaths. Some cowardly, equally culpable governors have abetted Trump’s crimes, and Congress has found no way to force Trump to act. Even Italy dug its way out of the problem while the U.S. response has failed to the point that Europe is considering forbidding American planes from their skies.

    Trump’s profound understanding of stupidity gives him the ability to manipulate equally stupid people who refuse to acknowledge the severity of the problem. But those with first-hand knowledge can’t be fooled. Last night I watched several nurses from El Centro, AZ, speak about their local problem as if they believed that a medical Armageddon was not far off. They were frightened, exhausted, and near panic.

    Does the Constitution require us to follow the commands of a president who views the deaths of American citizens as a joke?

  19. Given the FACT that government in America has been and is the tool for the 1%, I have a very hard time even contemplating a serious thought on this subject. Our government is a glove of the hand which is Capitalism. Government is there to make sure the wealthy stay wealthy, hence the trillions of dollars handed out to the 1% during this pandemic while the rest of us get crumbs (at best) and no guaranteed health care. I would take the “roles” of government more seriously IF government REALLY was a true representative government of, for and by THE PEOPLE rather than a government own and operated by the 1%.

  20. John, you are right on that this gets into so many issues, most notably Constitutional issues.

    However, one layman to another, I think it is not true that “First Amendment rights are much more important that’s why they’re the First Amendment.” That presumes that those who proposed the First Amendment were mindful of all the rest that would eventually follow and chose The First to be first because it was unquestioningly the most important. Which then presumes that each Amendment thereafter suffered the same evaluation, thereby creating a hierarchy of Amendments, each later one weaker than those earlier. Which if true would sure make the Supreme Court’s job a lot easier.

    I may be wrong, but I think most of the Supreme Court’s decisions hinge on which Amendment in the particular situation in question predominates, and each situation may fall into the purview of several Amendments. Additionally, the Court is almost always split on the question, meaning it is never clear which Amendment is most important.

    I have read that in the history of Supreme Court decisions, of those questions involving two or more Amendments the side supported by later Amendments most always wins. The explanation for that is that the authors of each succeeding Amendment have all the previous Amendments, plus all precedents resulting from previous Amendments, to consider as reference for writing their new improved Amendment. Yet, even that is not true enough to unanimously settle any question before the court.

    Woe be to the dude who takes any question before the court believing that the Amendment supporting his or her contention is superior to all the others, for he or she will find themselves ill prepared for the facts of life in the well.

    Speaking of ill prepared, why are non-lawyers spouting off about this when the posting population of this blog is loaded with attorneys?

  21. Norris Lineweaver: I gave you a memory device to help you spell SHEILA’s name correctly. Remember? Sheila is a SHE, and that is the way her name begins…S-H-E. I guess you forgot that the “I” comes AFTER the “E”. It’s S-H-E-I-L-A. Piece of cake, Norris! I know you have it this time! You can do it!

  22. On the topic of the day: We’re in one helluva four-year mess, and if we get folks off their duffs and out to vote, we can finally be rid of this monster and his monster cronies. We simply cannot do this for four more years. VOTE…and make it BLUE!

  23. Thank you Larry….have copied the quote and intend to send to ALL my Congressional Representatives, Federal and State….and others….no reference to you or Sheilas blog.

    And thank you Pete.

    Sheila your class is inspiring, and will be truly a great experience for all who attend.

    I am attempting not to complain so much, or to allow my fears and apprehensions to expose themselves as such. As a singular person, with little impact on what occurs, my actions are limited. I will be voting and hopefully helping out with that process. Perhaps I can be a listener to and maybe a calming influence upon others who are becoming exceedingly activated by their concerns and fears of our experiences of this lived history.

    Thanks to everyone for sharing solutions rather than just complaints and personal attacks upon this blog. You all help me to learn and have a deeper understanding of life.

  24. We know GOPs are going to fight dirty to suppress the vote and cheat in the elections. They are already doing so by reducing the number of polling sites, and open hours, as well as gerrymandering districts to favor republicans.

    Proactive recommendation for flipping our executive and senate to Blue this fall:

    Besides our own individual votes, we could support the groups that watchdog the voting process and fight for our voting rights. If possible, volunteer or donate funds to keep them going.

  25. The constitution does not spell out our voting rights to my satisfaction. This is why voting and elections are relegated to the states under the authority of the 10th Amendment.

  26. LOL Larry,

    Steps are I was just basically surmising that the first amendment’s that they came up with were the first amendment. So, I figured that those were the things that were on their mind and originally were the most important in sequence. But, I’m probably wrong, but that was my thinking on it. Not to say that anyone bears any more weight than the other, because we know that isn’t the case even though Trump and his followers would like that to be so. I think, reading a couple of articles earlier today, that the supreme Court seems to be getting tired of Bill Barr? That’s quite interesting. And I can imagine that would worry Trump some also. Because chief justice John Roberts is the swing vote and seems to have acquired a Barr in his craw, LOL!

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