Civil Liberties in a Pandemic: The Lessons of History

Throughout American history, whenever there has been a crisis the response has been a deprivation of rights. Today, the United States is in the midst of the worst health crisis in over a century. As of this writing, over 500,000 people have died. The pandemic reveals underlying institutional and infrastructural problems in society. We argue, based on history, there is every reason to fear that the pandemic could be used as justification for a massive deprivation of rights and abuses. Part I of this Article sets the context: Throughout American history, whenever there has been a crisis the response has been an unnecessary loss of liberty. Part II describes how courts have widely used the test from Jacobson v. Massachusetts in analyzing the government's restrictions that have been imposed in dealing with COVID-19 and explains why this is undesirable. Part III argues that the usual tests for constitutional rights should be applied in analyzing particular government restrictions and applies this in considering the restrictions that have been imposed in four areas: speech, religion, abortion, and business closure.