If the state may conscript its citizens into military service and send them to war, may it do anything short of that? This question has taken on a new relevance in the age of COVID-19. State and local shelter-in-place orders have told residents, under penalty of law, that they cannot travel, cannot assemble peacefully in private or public places, cannot protest on government property, cannot worship in a building together or even in the parking lot in their cars, and cannot have a proper memorial service for the departed. State authorities claim they are justified in restricting basic rights, at least temporarily, but that authority comes with danger. We are left to reflect on their prudential calculation and consider how that power will be used by those who wield it – not just now but also in the future.
As a cautionary tale, consider Oliver Wendell Holmes’ majority opinion for the Supreme Court in Buck v. Bell, a case from 1927 in which the Supreme Court upheld the right of state governments to forcibly sterilize people deemed by the state to be unfit for reproduction. Under these eugenics laws, common in the United States in the Progressive Era, state authorities sterilized some 60,000 people with the near unanimous approval of the Supreme Court.
With only one dissenting vote, Justice Oliver Wendell Holmes wrote in his majority opinion:
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.
Holmes then concluded: “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes,” before citing the 1905 case of Jacobson v. Massachusetts as precedent.
One might wonder: What is the principle exactly that would sustain cutting Fallopian tubes? In the case Holmes pointed to as precedent, the Court had affirmed the authority of the state to curtail basic rights during a deadly small pox epidemic.
This brings into view the current constitutional problem: there must be some circumstances in which it is reasonable to restrict constitutional rights for the sake of the common good, especially during a public health crisis, but allowing for such restrictions also requires that we draw and maintain limits on the exercise of government power. Yet maintaining this balance between individual rights, limited government and the good of the community isn’t easy to do, especially after factoring in ordinary human vices.
Take the reasoning in Jacobson v. Massachusetts (1905) as an example. In the face of the quickly spreading contagion of small pox, the city of Cambridge, Massachusetts required all residents to get a vaccination or face a fine. Jacobson refused to get vaccinated and appealed his fine, arguing that it violated his rights under the Fourteenth Amendment to the Constitution.
In his majority opinion, Justice Harlan noted that “the authority of the state to enact this statute is to be referred to what is commonly called the police power,–a power which the state did not surrender when becoming a member of the Union under the Constitution.” He also noted that the Court had “distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every description.’” Citing Crowley v. Christensen (1890), about the state’s authority to regulate or prohibit the sale of alcohol, Harlan then asserted that “[t]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the health, peace, good order, and morals of the community.” He went on to conclude that “[u]pon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
The problem remains: What are the limits of the state’s police power? The Court never says in a neat and tidy way, and the U.S. Constitution ratified in 1788 was silent on the matter. The unamended Constitution did not protect basic rights at all, at least not explicitly. Instead, it created institutions and enumerated the powers of the federal government. The only individual right actually mentioned in the original text of the Constitution is in Article I, granting Congress the power to secure to “Authors and inventors the exclusive Right to their respective Writings and Discoveries.”
There was a good reason for this. Under the Constitution, states would retain their broad police powers to legislature for the health, safety, and morals of the community, subject to their own constitutions and declarations of rights, while the national government was to be one of limited, enumerated powers – and so the Constitution’s framers thought there would be no need for a declaration of rights on the model of what we found in the states. Critics of the Constitution disagreed, and insisted on including specific guarantees of rights in the Constitution’s text.
As a concession to these critics, the first Congress proposed and the states ratified the first ten amendments to the Constitution (known only much later in American history as the national Bill of Rights). These Amendments protect certain basic rights: the right to free speech and the free exercise of religion; the right to assemble peacefully, keep and bear arms, and claim the protections of the due process of law, to name a few. But the Ninth and the Tenth Amendments also reiterate the logic of having a national government of limited, enumerated powers. The Ninth Amendment serves as a reminder that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” while the Tenth Amendment affirms that “[t]he powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or the people.”
In the nineteenth century, the predominant understanding found in cases like Barron v. Baltimore (1833) was that those amendments were intended to be limitations on the national government but not limitations on state governments. If you had a rights claim against your state government, it was a matter to be resolved according to state law in state courts, but there would be no sense in saying that your state government had exercised its police power in a way that violated some basic right protected by the amendments to the U.S. Constitution.
Incorporation and Substantive Due Process
That understanding of things changed gradually in the twentieth century through the development of the judicial doctrine of incorporation, the idea that the Fourteenth Amendment’s Due Process clause incorporates or includes within it protections for the rights enumerated in the Constitutions’ first 8 amendments. Developing alongside the doctrine of incorporation, and predating it in some cases, was the doctrine of substantive due process, the notion that there are also certain unenumerated fundamental rights that are protected by the Fourteenth Amendment’s Due Process Clause.
We now interpret the Fourteenth Amendment as protecting basic constitutional rights against encroachment by our own state governments. That is, in many ways, the beginning, rather than the end, of the inquiry, however. It is only after saying that state governments are restricted by the rights protected in the federal constitution (by incorporation or judicial interpretation) that we have to wrestle with the problem of limits on those rights under the Constitution. In what circumstances may government impose reasonable restrictions on the exercise of those rights for the sake of the common good?
The Supreme Court has addressed this problem through its creation of tiers of scrutiny for the judicial review of various laws or executive actions. When government restricts a fundamental constitutional right, the courts employ strict scrutiny, which is the highest tier of scrutiny and the hardest for the government to satisfy. The framework, developed over a series of cases in the twentieth century, holds that if government restricts a fundamental right, then it must show that it has a narrowly-tailored policy that furthers a compelling governmental interest in a way that is least restrictive of the constitutional right in question.
Rights in a Pandemic
What does this mean for the COVID-19 pandemic? We don’t know yet exactly. Courts and state and local officials are working through this issue in real time, and where exactly we land hasn’t yet been determined. There are, however, many ongoing cases that draw out and highlight these issues in concrete ways. Consider two.
In re: Greg Abbott
On March 22, Texas Governor Greg Abbott issued an executive order postponing all non-essential surgeries and procedures until April 21 – and included elective abortion as a non-essential procedure. Abbott quickly faced a legal challenge asserting that this order was an unconstitutional violation of the right to abortion as articulated in Roe v. Wade (1973) and modified in Planned Parenthood v. Casey (1992). Setting aside what we think about that issue or those cases, reflect on the reasoning of the Fifth Circuit. Siding with Governor Abbott, a three-judge panel of the Fifth Circuit Court of Appeals relied heavily on the framework of Jacobson v. Massachusetts (1905) as the controlling precedent, noting that under the Jacobson decision “all constitutional rights may be reasonably restricted to combat a public health emergency.”
If it is the case that “all constitutional rights may be reasonably restricted to combat a public health emergency,” then the question is not whether the government has restricted a right but whether it is has done so reasonably. In the language of strict scrutiny, it is a question of whether the government has a narrowly-tailored policy pursuing a compelling interest in the least restrictive way possible.
In at least some of the cases going forward now, the strict-scrutiny standard will be hard to satisfy. One example comes in the case of Gish v. Newsom, a suit brought by a group of citizens in California challenging the Riverside County stay-at-home order, which prohibits public or private religious gatherings and then specifically includes church among its list of non-essential activities. The folks bringing this case against Riverside County note that numerous other activities and industries are exempt from the order provided they comply with relevant social distancing guidelines. People may go to Walmart, liquor stores, and marijuana dispensaries, but there can be no gatherings specifically at church. One of the plaintiffs simply wanted to have a drive-in church service where parishioners wore masks, stayed in their vehicles, and parked at least 6 feet apart from other vehicles – an illegal activity under the order.
In the important case of Oregon v. Smith (1990), the Supreme Court held that laws of general applicability that are neutral with respect to religion may be enforced against religious dissenters just like everyone else. If there is a general and neutral ban on gatherings, then you can’t gather for religious reasons, either. But one might ask whether the government policy is really neutral with respect to religion when it prevents all church gatherings – including ones that comply with other public health or social distancing guidelines – even as it allows all sorts of other gatherings and activities. If that is the case, then courts might ask the government to show a compelling interest in specifically restricting the free exercise of religion and then demonstrate that there is no other way to achieve the same public purpose while putting fewer restrictions on the exercise of this fundamental constitutional right.
In the Riverside County case, however, a U.S. District Court recently went in a different direction, upholding the contested parts of the stay-at-home order on the grounds that “during an emergency, traditional constitutional analysis does not apply,” relying for this assertion on Jacobson v. Massachusetts (which predates the modern court’s creation of strict scrutiny).
Whose Justice? Which Rights?
Courts are now returning to Jacobson for guidance in our current public health crisis, bringing into focus the constitutional challenge of prudentially limiting government power and protecting the community during an emergency. When we peel away the judicial glosses and doctrinal formulas designed to address this problem, the question, at the end of the day, is this: is this government policy and its particular application, as a response to this pandemic, justified? Is it reasonable?
There is, of course, a second, related question: who gets to decide? The answer in our political system is that we decide, together, through a back-and-forth conversation among citizens, legislators, executives, and finally judges, who will consider these policies in light of a jurisprudential framework for constitutional rights built over the last century and half.
Justin Dyer is professor of political science and director of the Kinder Institute on Constitutional Democracy at the University of Missouri. This essay is based on remarks given for a webinar on “Constitutional Rights During Crisis” sponsored by Mizzou’s Division of Applied Social Sciences.