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Public Health: The Vast Constitutional Blind Spot

Like a vaccine, our Constitution has inoculated Americans against most of the common strains of tyranny. We have, however, little natural immunity to the variant of public health.

The recent decision by a Florida judge upholding the power of school districts to impose mask mandates on students is no anomaly. Nor, for that matter, was the decision by Justice Barrett upholding a vaccine mandate at Indiana University, or that by Justice Thomas upholding the federal mask mandate on public transport.

Over the past year and a half, judges of all ideological bents have proven themselves startlingly willing to affirm pandemic-based restrictions on personal liberty. As Jacob Gershman pointed out in the Wall Street Journal, most legal challenges to lockdowns have failed, and even those that have succeeded were decided on relatively narrow grounds.

The justification for all this, cited repeatedly by judges and legal scholars, is the broad power of governmental authorities to implement restrictions in the name of “public health,” a term which, as currently understood, is so vague that it can be used to serve virtually any agenda. This indefiniteness was in evidence when thousands of health professionals deemed “racism” a public health crisis sufficient to loosen social distancing protocol for Black Lives Matter protests in mid-2020, while specifically excluding “protests against stay-home orders” from this exemption.

If the pretense of public health can be used to circumvent the First Amendment guarantee of viewpoint neutrality for public demonstrations, then there is nothing it cannot do. Further demonstrating the elasticity of the public health framework, “misinformation” (that is to say, free speech) has been declared by government officials and experts to be a public health crisis, as has climate change. With this logic, our freedoms are mere putty in the hands of public health bureaucrats.

This very danger was once recognized by the ACLU, when it said in a 2008 policy brief on pandemic preparedness:

The law enforcement approach to public health offers a rationale for the endless suspension of civil liberties…the war on disease will continue until the end of the human race. There will always be a new disease, always the threat of a new pandemic. If that fear justifies the suspension of liberties and the institution of an emergency state, then freedom and the rule of law will be permanently suspended.

Disturbingly, however, there are few actual legal safeguards against the abuse of public health power.

The Framers of the Constitution were not omniscient. They did not know, for instance, that the quartering of troops in private homes, which they considered important enough to place ahead of due process in the Bill of Rights, would quickly become a virtual non-issue. Nor could they have foreseen all the threats to liberty that might eventually emerge.

While measures like quarantines date back to before the founding of the country, our current lockdown regime is historically unprecedented. The Framers took no provisions against public health excess because they simply did not imagine that such a shortcut to tyranny might ever be blazed. That is why there is no anti-lockdown amendment in the Bill of Rights, not because the founding fathers, who fought a revolution over a tea tax, would have approved of our current state of affairs.

Like a vaccine, our Constitution has inoculated Americans against most of the common strains of tyranny. We have, however, little natural immunity to the tyranny of public health, a dangerous new variant of the totalitarian pathogen which has cleverly evolved to bypass our immune defenses, allowing politicians a workaround by which they might violate our civil liberties at will while nominally upholding the Constitution.

Nor do opponents of lockdowns have much in the way of legal precedent to fall back on. The case law on the matter is surprisingly scanty; lockdown supporters tend to rest their arguments primarily on a single 1905 case, Jacobson v. Massachusetts, in which the Supreme Court upheld a state law mandating smallpox vaccinations.

Jacobson was decided at a time before our modern understanding of civil liberties had developed, less than a decade after Plessy v. Ferguson and scarcely a decade before the Court would uphold the imprisonment of an antiwar leafleteer in Schenck v. United States. It has also inspired one of the worst decisions in the history of the Court: the 1927 case Buck v. Bell, in which Justice Oliver Wendell Holmes explicitly cited Jacobson as a direct precedent for forced sterilization, ruling that “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”

There are also clear differences between the facts of the Jacobson case and our current situation. Smallpox had a historical fatality rate of around 30 percent. It is simply not reasonable to treat a disease with a fatality rate that is well below 1 percent for most demographics in the same way. Similarly, arguments for lockdowns based on George Washington’s decision to inoculate his soldiers against smallpox, or the response to a yellow fever outbreak in Philadelphia in 1793, or cholera, or bubonic plague, or tuberculosis, or polio, completely ignore their relative dangers and the degree to which we have become increasingly risk-averse regarding infectious disease.

Yet this past year, the Jacobson precedent has been exponentially strengthened by the number of judges who have cited it in upholding lockdown orders, cementing it irrevocably into our case law.

Although few explicitly limiting principles on the public health power have been established, it must be remembered that even the Jacobson Court recognized the dangers of unchecked public health authority, writing that it “may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression.” It is difficult to imagine a better test of this principle than that which we currently face.

While the failure of many of our era’s most respected jurists to take a stand against this madness will resound to their ignominy for generations to come, any sensible legal scholars remaining should direct their energies to closing this loophole before matters grow worse. To amend the Constitution—as may ultimately be necessary—is a great undertaking. But the costs of not doing so, in this case, may be far greater. Aspiring future tyrants should not rest with the reassurance that they need only stir up fear of a pandemic in order to render null and void the hard-won liberties of the citizenry.

Jason Garshfield is a freelance writer whose work has appeared in Townhall, RealClearPolitics, and numerous other publications.

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