The James Wilson Foundation on Natural Rights and the American Founding

“A Primer on Constitutional Rights During Crises”: Justin Dyer in Starting Points

In his latest essay for Starting Points, Professor Justin Dyer, a JWI affiliated scholar, attempts to make sense of the Covid-19 crisis and the constitutional debate it has generated. Dyer discusses the Supreme Court’s jurisprudence concerning the protection of public health and how the Court balances individual rights in times of public strife. He discusses the fundamental problem that pandemics pose for the Constitution, the necessity for governments to be able to act to protect citizens, and the concerns regarding abuses of power. He argues that though governments must act and take extraordinary procedures in protecting the public during a public health crisis, that these procedures must be carried out in ways that are the least restrictive to individual rights. Such decisions should be made in accordance to the democratic system of governance and not despite it.

Some quotations follow below:

“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.”

“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.”

“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?”

You can read the full essay here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790