AMERICAN PUBLIC HEALTH AND CIVIL LIBERTIES ARE THEY PARADOXICAL?

The question arises at what point do civil liberties, the foundation of our constitutional republic, give way to social and public health policy? We see this most strikingly in the current government’s response to COVID-19.

The issue first came to my cognizance during my studies at the School of Public Health, when I read a rather appalling decision by the United States Supreme Court in Buck v. Bell, 27 U.S. 200 (1927), where the Supreme Court upheld a Virginia Statute allowing for the sterilization of mentally handicapped persons.

Part of the decision States made was that the welfare of society would be promoted by the sterilization of mental defectives. If released in society the mentally handicapped would become a “menace” to the population as a whole. The premise of the argument is that mental incapacity is genetic and through the process of sterilization those individuals who were mentally incapacitated could otherwise become productive members of the society but would not otherwise be allowed to procreate. Thus we see the beginning of the policy pitting individual liberty and autonomy against the perception of the common good.

What is all the more astonishing is that procreation is deemed a fundamental right under the United States Constitution. While pervasive norms have somewhat evolved, what exactly are the State Police Powers?

To me, as a civil libertarian, this came as a rather shocking decision, and the fodder of much food for thought. Perversely, this opinion was authored by none other than Oliver Wendell Holmes. A Justice highly regarded and respected in American jurisprudence as one of the finest legal minds to sit on the High Court. This case, Buck v. Bell, has never been over-ruled, although severely curtailed in Skinner v. Oklahoma, 316 U.S. 535 (1942) and the limitations set by the State Police Powers.   

The State Police Powers ultimately derive from the concept of federalism embodied in the framing of the United States Constitution. All those powers not explicitly reserved for the federal government are left to the individual States. This is explicitly set forth in the 10th amendment to the United States Constitution. Historically the power of the states was forcibly diminished through the interstate commerce clause but there was a fervent move to reinvigorate the 10th amendment, and cut back on the interstate commerce clause, when Justice Rehnquist was Chief Justice. Thus, we have seen a re-invigoration of State rights and governance adopted by a more conservative High Court.

To wit, we can begin to understand the Trump administration’s approach to dealing with COVID-19. Is this a State’s rights issue or is this more analogous to a warlike situation where people of the United States are at grave risk and need a strong federal response which is the ultimate premise of the conservative court under Federalism?

So it is unsurprising, that we see, Trump Administration’s, perceptions change on a daily basis. This is the ultimate conundrum of Federalism.  The powers reserved to the federal government are in large part reserved for national defense and those enumerated powers in the Federal Constitution.

Thus the President is walking on a tight rope, is COVID-19, an issue of war or a public health epidemic to be governed by the State Police Powers.  This naturally begs the question, of whether these concepts are mutually exclusive.

Are the concepts of Federalism paradoxical to those of State’s Rights and individual liberties under the 10th Amendment? The only way to harmonize the states’ rights and individual liberties under the 10th amendment with that of the concept of federalism is to declare a public health pandemic akin to a war. In this case the federal government should use everything in its disposal to prevent the spread of Covid-19.

In large part, President Trump, has been extremely inconsistent. The sealing of the borders, barring foreign airlines such as the Chinese, and the so-called federal public partnership with big Pharma and large Manufacturers seems to mimic the actions of a country at war. We’ve also seen the large involvement of the National Guard and the Military in using measures to prevent the spread of COVID-19. From a differing perspective, President Trump, has blamed the States, like New York, for not procuring enough ventilators, while maintaining that ventilators and masks must be maintained federally, to protect the federal government.

Before moving on to the State Police Powers, and an articulation of those powers, from my perspective, one should give the President the benefit of the doubt, in dealing with a pandemic which was in large part unexpected, and changes on a daily, if not hourly basis. 

As Kenneth Wing says in his book the Law and the Public Health in “the American legal system the state governments may exercise all powers traditionally inherent in government itself.” The state’s power to govern is what is inherently known as the Police Powers.

These powers as Professor Wing says are difficult “to delineate” but have been defined as those of the legitimate powers inherent in governance.  This is a very broad definition which courts have proscribed as the limitations of these powers to those acts which fit within the confines of the State and Federal Constitutions.

We can see this by Governor’s Cuomo’s threat of confiscation of ventilators from private facilities for use in the hotspots of the greater New York area. His action is unquestionably proper but has to be tempered under the Takings Clause of the United States Constitution. In other words there has to be just compensation for the confiscation of private goods or land for the benefit of the public.

To better understand the limitations of liberty or in contrast to the Police Power we should look to vaccination. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), plaintiff, Mr. Jacobson, refused to comply with required compulsory vaccination of smallpox based on the argument that the forced vaccination was an infringement on his personal liberty over his person and was akin to an assault and battery. 

While going through the various levels of appeal until it reached the High Court, Jacobson argued, that this was a grave infringement on his individual constitutional rights.

Using a rational basis test the High Court held that the authority of the state to enact quarantine laws and health laws of every description was a legitimate use of power within the state only to be limited by violation of the Federal Constitution.

The court in Jacobson held:

“That liberty secured by the United States Constitution to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. They are manifold restraints in which every person is necessarily subject to the common good…. It is only freedom from restraint under conditions essential to the enjoyment of the same right by others. It is then liberty regulated by law.”

The State has unfettered rights when it comes to the protection of the parties from risk created by individual conduct.  As Wing says in his book, virtually all courts followed Jacobson and have deferred to State legislative authority. In other words, the power of the state to examine, quarantine, and in some cases curtail the activity of people suspected of carrying contagious diseases.

Californians are more fortunate because we have a constitutional Right to Privacy as opposed to the federal constitutional right to privacy which emanates from the penumbras or shadows of the Fourth, Fifth, and Ninth Amendments.

Similarly, we should bear in mind that the federal constitution focuses on restraint of the government or prohibition of the government from action, these are deemed negative or preclusive rights, as opposed to positive rights. A right which is specifically granted by the State Government, such as the embodiment of the Right to Privacy under Article I section I of the California Constitution is a positive right.

If Jacobson was to argue against government intrusion of forced inoculation of a vaccine which would violate his right to personal autonomy and personhood under the California Constitution, he would perhaps have a greater chance of prevailing. And yet even in California with his positive right to privacy the chances of him prevailing would be limited. See by way of example, Hill v. National Collegiate College Association, 7 Cal.4th 9 (1994).

Factually the NCCA had implemented randomized drug testing on college football players by intrusive collection of urine samples in same sex changing rooms where coaches and trainers would view their bodies in various shapes of dress, shape and form. The students were required to disclose what medications they used, the physical and medical conditions; to urinate in front of a monitor; and to provide a urine sample. 7 Cal.4th 13-14. Students at Stanford as part of the NCAA program, sued, arguing that it violated their right to privacy. The trial court and the Court of Appeal agreed. The California Supreme Court reversed and held that there is a private right of action against a non-governmental actor under California’s right to privacy. 

The California Supreme Court also held that the right to privacy is not an absolute, the right to privacy must be balanced against a competing interest, 7 Cal.4th 58, and be determined on a case by case basis. At the same time, individual liberties must be balanced against the welfare of the Public Health of Californians. 

On its face, the Justices battled with reaching the ultimate decision, whether it be the constitutional standard to be measured by (rational basis or compelling interest, and what a compelling interest is), and how grave the intrusion was. Ultimately, the Court through a plurality opinion held that given the circumstances the Stanford students’ expectation of privacy was reduced under the circumstances of those facts.  

If the California Supreme Court battled to walk the tight rope of scope of the California Constitutional Right to Privacy versus that of the public good, it all but highlights the difficult balance we face when the people of the United States are faced with a life threatening pandemic.

The price we pay for the liberty of living in this wondrous Constitutional Republic is deminimus as compared to that of living in other countries where liberty is seriously curtailed. From, a legal perspective I conclude that individual liberties, such as playing volleyball on a Florida beach, are mutually exclusive with those of the public health. And at times, such as this, individual liberties are paradoxical to those of the public health.

Ultimately this is a tenuous tightrope of a balancing act which has to be walked, where we have to give up a little bit of liberty for the public good. 

At the same time, we need to be cautious, because this can turn into a slippery slope, as to what the public health is. We should be on guard when it comes to an individual’s right to choose what to do with their body and other acts of intimacy which take place in the bedroom. But for now, it seems to me that both the federal and state governments have struck the right balance between the paradox of individual liberty and the public health.