The Pandemic And The Constitution

Several faculty at the O’Neill School of Public and Environmental Affairs, where I teach, collaborated on a special summer school course investigating the challenges posed by the pandemic to our particular fields–criminal justice, disaster preparedness, non-profit organizations…and in my case, civil liberties.

Here’s an abbreviated (but still pretty long) version of my lecture.

The Coronavirus pandemic has raised a number of issues that are new or even unprecedented. One is a fundamental governance issue: what is the proper balance between government’s obligation to protect and the individual’s right to autonomy, or self-governance?

The rights guaranteed to individuals under the U.S. Constitution are civil liberties; they are guarantees against governmental infringement of our fundamental, human rights. Civil rights, on the other hand, are statutory rights against discriminatory behavior by private entities. The question we’re going to explore in this class is limited to civil liberties—specifically, how much additional latitude the Constitution gives government to limit individual rights in order to discharge its duty to protect our health and lives—civil liberties in the time of a pandemic.

There are a multitude of issues raised by government’s efforts to keep us safe and control the pandemic.

·      One of the most visible—and contentious—issues involves federalism. Federalism, as you know, is the structure whereby government jurisdiction, or authority, is divided between federal, state and local units of government. What is the role of the federal government in a pandemic? What powers and decisions are reserved to the states? In previous situations involving threatened pandemics, there was much more co-ordination, and most of the questions we now face didn’t arise. This time, however, there has been a great deal of public confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, but he has also disclaimed responsibility for tasks that he says are state responsibilities. Several of those statements are inconsistent with the Constitution, which vests primary responsibility with the states. As you consider America’s response to the COVID-19 pandemic, and the very uneven experiences of the states, you might also consider where America should place primary responsibility for pandemic response.

·      Another issue that has been debated is: What are the limits of civil disobedience and the First Amendment right to assembly during a pandemic? This issue arises in several ways: some citizens have protested state orders requiring masks and social distancing (and some of those protestors have been armed, which is disquieting). Those protests pale, however, before the hundreds of thousands of citizens who have participated in the widespread Black Lives Matter demonstrations following the murder of George Floyd. The states did not move to curtail those demonstrations on the basis of the threat to public health, and the data we now have suggests that those protests were not, in fact, a triggering event. The lack of spread has been attributed to the fact that protestors were outdoors, and a significant percentage of them wore masks.

·      Requirements to wear masks have generated especially nasty confrontations, with people comparing the requirements to “communism” and “attacks on the Second Amendment.” My own reaction to these assertions is based less on the Constitution—which I think pretty clearly allows such measures –and more on logic, or more properly, the lack thereof. The government can and does require you to wear a seat-belt; ordinances require that we refrain from smoking in public places. For that matter, government requires us to wear clothing—at least enough to cover our genitals—in public. It is illogical to obey these and other common mandates and yet claim that wearing a mask in order to abate a pandemic is somehow a new and offensive invasion of personal liberty. I will say that what I find offensive is the unwillingness of these people to wear a mask intended to prevent them from infecting others. They are either unbelievably selfish, or perhaps they believe, with the President, that the pandemic is a “hoax.”

·      So much for masks. What about 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, but assuming it meets that burden, requirements for quarantines and vaccinations are clearly allowed.

·      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.” I am unaware of cases testing those restrictions.

·      Using cellphones for “contact tracing” has been met with considerable alarm from privacy advocates and organizations concerned with the level of government surveillance. That’s another area of legal ambiguity.

·      The right to vote is a critically-important constitutional right, and cases have already challenged restrictions on the availability of absentee ballots. (A related issue is the evident inability of many states to handle increased voting by mail—situations that may deprive people of their constitutional rights by reason of inadequate capacity to perform, rather than by intent.)

·      Several states have used pandemic restrictions to justify denying women’s constitutionally-protected reproductive rights, spawning litigation about the degree to which those restrictions can be imposed.

·      Both the right of Assembly and the Free Exercise Clause of the First Amendment have been cited by religious organizations—primarily churches—that have objected to limitations on public gatherings. (Medical scientists tell us that singing in a confined space is particularly dangerous.)

·      Then there are incarcerated persons, and would-be immigrants who are being detained at particular risk. At what point do the conditions of confinement rise to the level of “cruel and unusual punishment”?

·      A fascinating case that has been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of disinformation be held liable? The case is Washington League for Increased Transparency and Ethics v. Fox News. The plaintiff 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.

The Executive Director of the non-profit was quoted as saying that they aren’t trying to chill free speech, but that they believe the public was endangered by false and deceptive communications in the stream of commerce. She emphasized that there are a lot of people who listen to Fox News, and that Fox is not taking the recommendations of public-health officials seriously. She has asserted that “This lawsuit is about making sure the public gets the message this is not a hoax.”

I think 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 mirror-image of “falsely shouting fire in a crowded theater.” In this case, Fox is accused of shouting “There’s no fire; stay in your seats” when, in fact, there is a fire.

For a more scholarly exposition of these and other civil liberties issues, click here.


  1. The U.S. citizenry seems to be totally obsessed with their “rights” while abandoning any focus on the principles of morality and duty, principles not based on any one religion but principles shared by societies throughout the world as a basis for an organized society. To kill another human is wrong. To harm a child is wrong. To lie and cheat is wrong.
    If ever there was a time for some serious talk about morality and duty it is now.
    Do we each have a moral duty to social distance and wear a mask?
    Do doctors and nurses have a moral duty to die if necessary in order to care for the sick?
    Does the grocery store clerk have a moral duty to wait on a mask less customer?
    Do parents have a moral duty to send their children back to school in order to free up adults so they can return to work?
    What do each of us owe our country, our neighbor, our family, ourselves?
    These are serious times. And the questions are serious too.

  2. What I find most interesting in these cases are trust and those who intentionally sow seeds of distrust.

    If you don’t trust the team assembled at the state or federal level to handle day to day operations, why in the world would you trust them to do the right thing in a case of emergency?

    Sheldon Adelson, Rupert Murdoch, and the Koch family intentionally want you not to trust the government unless their chosen operatives are in charge.

    Trump’s handling of the pandemic was abysmal, but the right-wing operatives threw Fauci under the bus and cast blame on China and international alliances. They even pumped money into organizations that organized armed rallies at statehouses.

    Is this “buyer beware” or “free speech”?

    I marvel at all the times our government uses false information to get what they want but then expects the people to cower to their rule in an emergency.

    To me, the fundamental issue is trust.

    Does the state and/or federal government represent our interests?

    Look at the infection numbers in red states who considered COVID a hoax — did those governments represent the people or industry or some other interests?

  3. The law has not yet caught up with the electronic age; nor has it caught up with medical advances so how can it possibly contain the science fiction of the Covid-19 Pandemic which even confounds medical researchers and those serving in the the medical field?

    The Constitution of the United States of America was signed 243 years ago and the law does not know or understand exactly what the requirements and/or limitations of the president, his administration and Congress are. Apparently; there is no set rule on Federalism or Trump would not be able to give and remove responsibilities regarding local, state, national or international issues.

    “A fascinating case that has been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of disinformation be held liable?” Why is this issue just now being brought before the court? Why is the 2nd Amendment under control of the NRA which is not a political organization but a private gun club. As criminals became younger and younger and juvenile courts are still operating under decades old laws; the law hasn’t even caught up with the law.

    Nero fiddled while Rome burned; Trump fiddle-faddles while Americans die of Covid-19 Pandemic as the courts fumble through their law books looking for presidents which do not yet exist. The Pandemic cannot be found in the Constitution but control over a mentally incompetent liar and thief as president is stated outright; what can not be found is a way to force all three branches of government to act in the best interest of Americans and America by following the Constitution. As Theresa Bowers states, “The U.S. citizenry seems to be totally obsessed with their “rights”…”, all levels of current government seem to be interested in “passing the buck” to give themselves the right to relieve themselves of any responsibility over this coronavirus.

    I actually saw an ad on Facebook telling people that the jobs to be applying for today are in the cremation business.

  4. It would be interesting from a sociological perspective to discuss how a country that is highly individualistic handles a pandemic vs the ones that are more communal. It would seem to me as an RN whose father served in WW II that we have not instilled in American citizens the importance of working toward the greater good which at times will mean I lay aside what I want to do for what I must do to help contain a pandemic or to protect my country, my fellow Americans, and yes my neighbors and family from existential threats such as global warming or a pandemic.

    When I look at the countries that have contained COVID 19, it seems to me that every citizen complied with what the leaders asked them to do and that there was a unified effort to contain the virus. They also believed the medical community.

    The partisan divisiveness exacerbated by Trump has impaired our ability to contain the pandemic. What we need is for every governor in every state and everyone in DC to have a unified, effective plan to contain the virus. Instead Trump has used the pandemic to fuel xenophobia and racism. And by not wearing a mask, Trump has undermined our ability to contain the virus.

    But beyond all that I would say to my fellow Americans that we simply need to stop whining about the inconvenience of wearing a mask and get on with it. And then, corporations and governments need to mobilize quickly to increase testing and tracing, and to support efforts to create an effective vaccine.

  5. In the case of our pandemic, 45 has totally disrupted any understanding of federalism by telling governors it’s their problem then intercepting their PPE orders and buying up, but not distributing needed resources. It’s not hard to imagine that ANY other President would have had the US back up and running like most of Europe.

    Hopefully, one of the big lessons of this Presidency will be the importance of competence in government.

  6. Perhaps, some shortsightedness on the part of the Founders was not spending more effort on emphasizing that the glorious rights they are declaring come with responsibilities. As the American psyche has evolved, that concept has been blurred, and often, buried, especially since the 1980’s when living started being “all about ME” – now exacerbated via technology.

  7. Isn’t there a restriction to false advertising, and since Fox News survives on ad revenue, would their misinformation fall under that limitation?

  8. Yes, Lester. The motto of the US is now “rights without responsibility”. And we wonder how we got Trump.

  9. We got Trump because of the cynicism of so many in regard to government. Government has shown a long-standing disregard for the ordinary citizen, especially since the days of Ronald Reagan, and his “Facts are just annoyances!” proclamation, which came out after his “You can have it all!” statement. Not to belabor the point, but Trump’s, shall I say “iconoclastic?” style of campaigning, I believe, hooked not just the bigoted, and greedy, but those aching for the change he said he’d bring.
    And, now we see that his utter lack of understanding and competence, aided by the gas lighting of Fox News, has led to the crisis of governance, and the quandaries referred to in today’s posting.

  10. Shelia, I seem to remember an Arizona case where the Supreme Court found the right to travel to be a constitutional right as I, too, questioned governors’ stopping travelers at their states’ borders. The case (as I hazily recall) had to do with objection of travelers to choose venues to travel to and live in because the particular state had better welfare provisions, and if what i am setting out here is accurate, now I wonder if that case could be limited to its facts and inapplicable to pandemics, for instance, and that governors are within their rights to turn travelers from sicker states away. I need a law library!

    As to responses today, I echo Todd and Robin. Mistrust in government started in earnest with Reagan’s announcement that “Government is the problem” which softened up the gentry for the post-Powell corporate-Wall Street takeover and the end of the New Deal tandem of increases in the Dow with increases in wages (which ushered in wage inequality and a stratospheric Dow whose values were and are based in part on lower wage costs).

    As for Robin’s effort – Yes, sometimes the citizenry has to overrule government (especially with a Trump at the helm) and do what is right and necessary for the common good. Just wear the masks and ignore the politics of those in government who never met a disaster from which they could not profit, and yes, countries such as Denmark where the government takes its citizens’ needs as well as their rights seriously there results trust in government and communality of purpose. Result? The pandemic goes away. Such purpose has been missing here since Reagan, and among other results, here we are (embarrassingly) along with Third World countries dying by the thousands. To do: Vote Biden and hope to reinstill New Deal values where citizens and government will once againn share common purpose.

  11. Lots has been written about science denial as it pertains to climate change but I think that the problem is larger than that. It’s more like anti-expertise. Most every field of human knowledge has grown to the extent where to legitimately claim “expert” a life time of study and application are required which comes unavoidably at the expense of knowledge in other fields. Therefore we all, even experts have to rely on expertise every day if we are going to base what we do on human knowledge.

    That’s why I come here every day. There are experts on law and the Constitution here and that’s one field of knowledge that I had to leave to others as I developed some engineering and scientific expertise.

    The bottom line really is what humans learned from the Age of Enlightenment though it appears that many of us have forgotten those concepts. We have to base our actions on knowledge not inherently self centered feelings and opinions. That requires continuous learning, collaboration, and most of all expertise.

  12. I have trouble buying that the weeks of protests with masses of people in the streets, did not result in any spread of Covid-19. That seems a bit wishful thinking and doesn’t make a lot of sense. I do agree though the fact protesters were outside and many wore masks, helped limit the spread. It was a heck of a lot better to do that, than hold a political rally inside with people shoulder to shoulder, sans masks.

  13. I’m with Gerald, by the way. I think there is case law out the right to travel is a constitutional right. I have doubts that states can ban travel from other states. Maybe the emergency nature of Covid-19 provides sufficient grounds to limit that constitutional right?

  14. When does an individuals rights usurp the greater good? If, for example, you are on a large dinner cruise that disembarked from Navy pier in Chicago, on its way across the lake. The diesel engine blows, driving the crankshaft through the bottom of the cruise liner. It’s a mixed group of people, young, middle-aged, and seniors. The captain says that we all need to start bailing or the ship is going to sink and there are not enough lifeboats for everyone if that happens. So, all everyone has to do is just bail until the Coast Guard arrives and rescues all of the customers in jeopardy.

    Then you have individuals who claim they should not be forced to bail, others claim that they have some sort of medical malady that prevents them from bailing water, others will refuse to bail because of a religious belief, others will refuse to bail because they do not want to work alongside the gay couple or someone of an ethnicity they despise, or they really don’t believe that the ship is sinking in the first place. What do you do? If the lives of everyone Depends on every soul pitching in, but you have a significant portion albeit minority portion, that refused to apply themselves? So the few put the majority in jeopardy because they feel their rights usurp everyone else’s! What to do? Well, you cannot yell fire in a crowded theater, but the government has the right to quarantine, they also have the right to seize properties and individuals!

    So, if you have individuals that are putting a burden on society because of a refusal to cooperate, shouldn’t society recoup those losses by seizing properties of those individuals? Because we know selfishness will drive many to pitch in if they feel there’s going to be a penalty attached to their material possessions if they don’t. Because that’s the only thing they’re concerned about, not their fellow man! Can government abuse its power? Well, one cannot be paralyzed because of what might happen, then nothing gets accomplished. It’s trial and error, but if you don’t try, you will never know the outcome and what it might be. There needs to be a revamping of what people can control concerning society as a whole. If the organism itself is sick, do you amputate? Or do you let the organism poison itself to death from infection, thereby ending its existence!

  15. Todd, trust is the symptom not the disease. The disease is the failure of our leaders and our institutions to be credible. NO, THE FUNDAMENTAL ISSUE IS NOT TRUST. It is CREDIBILITY.

    The burden is upon our leaders and leading institutions to earn trust; the burden is not on us, the masses, to trust those who have not earned it and in fact may be dangerous, their plunder and oppression of us emanating directly from our baseless, stupid trust in them.

    As long as we do not understand the role of credibility in trust and do not know which comes first, we will not be able to hold our leaders to credible behavior, no matter how much we sing the trust song.

    No, we need skepticism a lot more than we need trust. Skepticism–the show me attitude–goes a long way in regard to compelling leaders to prove themselves credible.

  16. Larry, how can people who are not experts in a particular field evaluate the expertise of someone who is? I don’t see that as possible.

    Therefore to a significant degree credibility has to be assigned based on qualifications not personal belief.

  17. Trust on the other hand is hard earned and can be accurately referred to as political capital or, in the commercial and entertainment businesses, as brand.

    The whole concept of marketing is to build brand by delivering what you promise reliably so when circumstances conspire to make that not possible customers will accept explanations because of your political capital/brand balance (reputation).

  18. I wish your classes online were available for audit.
    Fascinating issues and so important to discuss.

  19. I often wonder if the “mask is a choice” people would like that applied to food preparation or the pharmaceutical industry. I can just imagine them eating at MacDonald’s with the cook sneezing on the burger just before adding the bun, or enjoying the food from a rat infested restaurant.

    Sometimes, though, I think that is what they want. “I will not wear a mask, but you can do what you want.” Fine, Mary Mallon (AKA Typhoid Mary) will prepare your food. You can do what you want, but you must eat it.

    Federalism is a long standing problem. The Constitution was from a time when distances were huge and communications were slow. Pollution and Pandemics (contagious disease in general) don’t recognize borders, so we shouldn’t either in those cases, but the Federalism argument still comes. up. Our “rugged individualism” is similar. It isn’t just shouting “fire” in a theater. I used to wear after shave, but too many people are sensitive to odors, so I stopped. If I lived alone in a cabin in the woods, it might be different. I also never smoke a cigar in public, but enjoy one (or console myself with one) every election day. We live closer together and what we do in our lives affects more people than it did 200+ years ago.

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