Constitutional Law

In an earlier post, I invited people to reflect on the tension that often arises in public health between individual liberties and the public good (however defined). I particularly placed this problem in the context of possible government responses to a public health emergency such as a massive killer flu epidemic.

I was not asking for a legal opinion – I principally expected people to respond on the basis of ethical and pragmatic considerations. Indeed, one of the key points I made, in linking to an essay by David Fidler, is that the ordinary legal regime is likely to seem inadequate and to be suspended under such circumstances. While federal constitutional doctrine is somewhat tangential to my original question, I thought people might appreciate a brief summary of how it might apply.

Nobody can deny that constitutional law is an argumentative field. Although there is always a prevailing regime of constitutional interpretation (albeit with many unresolved areas), many people disagree vehemently with various elements of it, and it changes continually over time. Changes are driven by the cultural and political context, by technological change and changes in the order of society, and of course simply by the personnel on the Supreme Court and their own initial proclivities and personal intellectual evolution. Most important for our present problem, in times of national emergency – which in the real world has mostly meant war – the rights people have come to expect are commonly curtailed, and the courts have been quite tolerant of this, ex post facto, even where there was no preceding authority. Before I get to that, let me briefly summarize the doctrine of rights as it may be relevant to public health emergencies, and public health more generally.

Most people are familiar with the rights enumerated in the Constitution, and it has long been held that these to some extent go beyond the literal words on the page and have some implicit content. (E.g., people have a right to travel freely throughout the U.S. as a consequence of it being one country. "Speech" includes writing and symbolic communication. Etc.) In the mid-20^th Century, the court began to expand individual rights beyond those enumerated specifically in the Constitution in a novel manner. The evolution began with the case of Skinner v. Oklahoma (1942), in which a man deemed a habitual criminal objected to the plans of the State of Oklahoma to sterilize him. Although this may appear repugnant on any number of grounds, Skinner’s legal argument concerned the Equal Protection Clause – some categories of offenders were to be sterilized, but not others. The Court, led by Chief Justice Douglas, identified a basic “civil right” to marriage and procreation. This new “fundamental right,” not specifically guaranteed by the Constitution, required the court to impose strict scrutiny on the Oklahoma statute, and the Court found it indeed violated the equal protection clause even though the legislature could, conceivably, have had a “rational basis” for it.

Contrary to anything you may have read elsewhere, Skinner’s “fundamental rights” had nothing to do with “bodily integrity,” a concept of no salience in federal constitutional jurisprudence. Fundamental rights ultimately deemed to be protected by the Due Process and Equal Protection clauses include the right to vote, to marry (the opposite sex), and eventually, to use contraception, to have an abortion, and most recently to have consensual sex in private. While violations of these rights require “strict scrutiny,” the state may violate them if “necessary to promote a compelling government interest.”

In Washington v Gluckberg (1997), a case involving physician assisted suicide, Chief Justice Rehnquist denied any “fundamental right” to suicide, but noted that most states have allowed competent people to refuse medical treatment, which he called a “tradition.” It appears that the court tacitly assumed this tradition defined a fundamental right, although it did not bear directly on the decision in question. It remains to be seen what impact, if any, this acknowledgment will have on future jurisprudence.

In any event, if such a new fundamental right ultimately is reified in some future Supreme Court ruling, it will scarcely matter in time of emergency, when a “compelling government interest” may be asserted, and any judicial review of the government’s actions, if any, will not take place until years later.

At the beginning of the Civil War, Lincoln imposed martial law in parts of the U.S., by suspending the writ of Habeas Corpus (a power given to Congress by the Constitution in time of war, but not to the Executive). This action effectively nullified the Fifth Amendment. He also ordered various military actions, and spent federal funds, all without Congressional authorization or a declaration of war. A man arrested by the army, named John Merryman, went to Chief Justice Roger Taney seeking a writ of Habeas Corpus, which Taney granted, saying that Lincoln had no power to suspend it. Lincoln defied the ruling, and ordered the military to ignore it. That was effectively the end of the matter. Subsequent events, such as the Japanese internment during WWII and the recent indefinite confinement of U.S. citizens deemed “enemy combatants,” without charges or any judicial accountability, would seem to confirm that constitutional rights mean little when the president perceives an emergency.

People who are interested in these issues will enjoy reading The Dynamic Constitution, by Richard Fallon (Cambridge University Press, 2004). Yeah, it's published by some durn foreigners, but he is 100% American, I guarantee it.