By Scott Burris and Wendy E. Parmet
As the United States attempts to mitigate COVID-19 through social distancing, quarantines and isolation measures, we enter uncharted territory, and face pressing social, epidemiological, and legal questions.
Although the law is not fully settled, extreme measures that shutter businesses and limit social interactions outside of the home are likely constitutional if and when they are reasonably necessary, based on scientific evidence and knowledge, and are the least restrictive means available to stop a significant risk to the public. But adherence to those principles is not the only constitutional issue to consider during this pandemic.
One key issue is how social distancing measures are implemented. Are they being enforced fairly, with exceptions and enforcement following science and evidence? Or are they being implemented in a manner that reflects existing economic, racial or ethnic disparities?
Neutral rules are often enforced in a biased way. Law must be vigilant to ensure that people out for an authorized stroll or heading to an essential job are not treated differently by police because of their skin color.
It is also important that regulations not be applied in a manner that hints of partisanship or censoring. Public health emergency powers are broad, but they do not override core First Amendment rights. In the face of dramatic failures in the government’s handling of the earlier stages of this crisis, the rights of investigative journalists and public employee whistle-blowers merit protection in particular.
Likewise, the legal system has to ensure that people in jails, prisons and immigration detention centers have the same protection from infection and high quality health care as people in condos and gated suburbs. If, by placing someone in detention, the government prevents them from protecting themselves, it must provide for their safety and treatment.
These are familiar constitutional issues, with answers in long-established principles.
The consequences of unprecedented social distancing measures also point to less-common constitutional claims that will test the capacity of the legal system to respond to our deep social inequality. These questions speak as much to the constitution in our minds – our understanding of our social contract – as they do to the one written on parchment.
If, at this strange moment, most of us have been shaken out of our comfortable bubbles of curated facts, we have a chance to think about what we would like our country to be. Revisiting our understanding of our federal and state constitutions is one way to articulate a different vision of what we can fairly expect from our governments and each other.
When basic rights are taken away by legal orders and viruses, the nature of our basic rights and our relationship to the government looks different. Our Constitution and our laws are supposed to create legal environments in which we can strive and thrive and a society we can all be proud and happy to inhabit. As we face COVID-19, we are forced to reexamine what that requires. Are there rights to the satisfaction of basic needs to be found and developed in constitutional provisions that have traditionally been interpreted only as protection against government action?
Certainly we have a right to a government that acts with basic competence and implements its orders fairly impartially.
Beyond that, many of the federal, state and local emergency rules include protection against eviction, and politicians are promising that both businesses and individuals will be funded in some way to hold on until the crisis passes. They’ve promised free testing and universal access to health care, too, and few are suggesting any of this is wrong.
We could see all this as just simply necessary to avert disaster, but once we acknowledge that a basic income, access to health care and housing are essential to both the well-being of individuals and the community writ large, we have to ask why they only kick in during a national crisis. For millions of Americans, insecurity in housing, health care, and even groceries has long been daily life.
In the U.S., we are used to thinking about a lot of basic human needs as being matters of individual responsibility. COVID-19 forces us see that food, shelter, a resilient disease control system, and access to health care are essentials. For the moment, our government is beginning to recognize its responsibility to ensure these critical functions.
Will it continue to do so once the crisis has abated? Will we need to wait for the next crisis – and surely there will be one – to put these needs more firmly on our national agenda as fundamental rights, and understand their importance to the healthy operation of our country?
At this moment of national concentration and cohesion, we have a chance to say “no.”