By Daniel Aaron
The past few weeks have seen protests against stay-at-home orders across the country. As protesters clamor for their freedom to leave home and conduct business, a constitutional battleground emerges over the novel coronavirus.
There is a strong argument that the Constitution has been infringed during the COVID-19 pandemic. But these infringements, I will argue, have more to do with the (lack of) federal response to the pandemic than curtailed rights to move, travel, and do business.
State Coronavirus Policies and Constitutional Rights
States vary in the strictness of their policies with regard to staying at home, traveling, and conducting business.
Many states have issued stay-at-home orders, some mandatory and others taking the form of strong advisories. Some states, such as Kentucky, have ordered residents not to leave the state unless they meet certain exemptions. Maine and Massachusetts instruct incoming travelers to self-quarantine for 14 days. Non-essential businesses are generally closed. As a result of these measures as well as the damage of COVID-19 itself, U.S. unemployment is now at 14.7%, the highest rate since the Great Depression.
These policies affect interests that are constitutional in nature. Several Supreme Court cases have recognized a right to travel. For example, in Kent v. Dulles (1958), the court wrote,
The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. . . . Freedom of movement is basic in our scheme of values.
In addition to the right to travel, in Toomer v. Witsell (1948), the Supreme Court asserted that the act of shrimping (and, more generally, pursuing one’s livelihood) was protected by the Fourteenth Amendment’s Privileges and Immunities clause. (“Shrimping” means to fish for shrimp.)
And in the well-known case of Meyer v. Nebraska, the Supreme Court determined that constitutionally protected liberty
denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
There is a strong argument that the Constitution protects the freedom to move, travel, and do business. However, constitutional interests are not absolute, and may be limited by pressing public health interests, especially during a state of emergency.
The Least Restrictive Means of Protecting Health
In order for liberty-infringing public health laws to be constitutional, they must be the least restrictive means of protecting health. With regard to the novel coronavirus, they may not be.
One approach that might protect health more comprehensively would be to provide robust health care accessible to all in the United States. In particular, minority groups have worse access to health care, fewer work protections like the ability to work from home and take paid sick leave, and higher rates of chronic disease, all of which can increase the risk of contracting and dying from COVID-19.
Another approach entails improving public health infrastructure. Contact tracing is a method of monitoring the spread of disease and ensuring people who have been exposed are isolated from others. The U.S. may need as many as 300,000 contact tracers, and yet existing plans call for only 66,000. Federal funding could cure this deficit.
Further, academics have pushed for a uniform federal response, which might help to alleviate the pandemic while restoring individual liberties. However, the federal government appears more interested in “Opening Up America Again,” and recently dissolved the federal task force in charge of COVID-19 (although later reopened it in response to public criticism).
The Federal Government’s Constitutional Violation
Protesters may be correct that their constitutional rights are being violated. If the nation’s public health infrastructure were more robust, stay-at-home orders could be more safely loosened. But because of the weak federal response to the virus, “opening up” the economy threatens to be a disaster for public health and a double-disaster for minorities. In essence, the weakness of the federal response to the novel coronavirus pandemic is a cause of current rights restrictions.
Under doctrinal constitutional law, governments can usually infringe the Constitution only by an affirmative act, rather than a failed response. Therefore, taking a life could infringe the Constitution, whereas failing to provide health care may not. But authors, including myself, have put pressure on this idea. The novel coronavirus pandemic provides the perfect example of how the failure to build public health infrastructure leads to serious deprivations of liberty.
President Trump could marshal Congress to allocate the $3 to $10 billion dollars necessary for massive contract tracing, and pursue a host of other public health measures. He could start implementing expert-driven recommendations around COVID-19, rather than nixing them. Doing so would cost money, and would require Trump to admit that the virus is a serious threat. But it would almost certainly lead to quicker resolution of the coronavirus crisis, and it would help reduce ongoing deprivations of liberty.