New Article: What Rights are "Essential"? The 1st, 2nd, and 14th Amendments in the Time of Pandemic

The most thorough account of the first six months of COVID-19 litigation.

|The Volokh Conspiracy |

I am happy to share a draft article, titled What Rights are "Essential"? The 1st, 2nd, and 14th Amendments in the Time of Pandemic. Readers of this blog will likely have seen much of this content in many posts on this issue. I hope it provides a single compendium to study the first six months of the litigation. And I chart the path forward of future litigation. Here is the abstract:

Under conventional constitutional doctrine, courts pose familiar questions. Is a right "fundamental" or "non-fundamental"? Is a classification "suspect" or "non-suspect"? Should a law be reviewed with "strict scrutiny" or with "rational basis scrutiny? But during the COVID-19 pandemic, a novel question prevailed: was a right "essential" or "non-essential." If a right was deemed "non-essential," then the state could regulate, restrict, and even prohibit that right. Modern constitutional doctrine was simply set aside during the emergency. Different states drew different lines. Some states deemed the free exercise of religion and the right to keep and bear arms as "essential," but access to abortions were deemed "non-essential." Other states did the opposite: religion and guns were "non-essential," but abortions were "essential." And in general, the courts declined to intervene so long as the state also restricted "comparable" activities.

Can the free exercise of religion be anything but essential? Can the sole method of obtaining a firearm be deemed non-essential? And under controlling Supreme Court precedent, can abortions be deemed mere elective surgeries? This article provides an early look at how the courts have interpreted the First, Second, and Fourteenth Amendments during the time of pandemic.

Part I begins with a detailed survey of the emergency lockdown measured issued in March and April of 2020. First, we will study the limits placed on religious worship. Second, we will review how Governors regulated firearm stores—the sole means in many states by which people can obtain a gun. Third, we will recount how four states interpreted their ban on "non-essential" surgeries to prohibit certain types of abortions.

Part II revisits an old, but timely precedent from 1905: Jacobson v. Massachusetts. During the COVID-19 pandemic, Governors viewed Jacobson as a constitutional get-out-of-jail-free card. It isn't. Jacobson concerned a challenge based on the Due Process Clause of the Fourteenth Amendment—what we would today call substantive due process. It is a mistake to simply graft Jacobson onto the modern framework of constitutional law.

Part III introduces two competing approaches to understand the free exercise of religion during the pandemic. Chief Justice Roberts articulated the first view in his concurrence in South Bay Pentecostal Church v. Newsom. Here, the Court deferred to the government's determination of what is "non-essential." Justice Kavanaugh developed the second model in his dissent in Calvary Chapel Dayton Valley v. Sisolak. With this approach, the Court does not defer to the government's designation of what is "non-essential." Under the Calvary Chapel approach, the free exercise of religion is presumptively "essential," unless the state can rebut that presumption.

Part IV extends these two frameworks to the context of the Second Amendment. Under the South Bay framework, prospective firearm owners would have to show that these decisions were irrational. But with the Calvary Chapel approach, the right to sell firearms would presumptively be deemed a "most-favored right."

We are still in the early stages of the COVID-19 pandemic. To date, the courts have largely settled on the South Bay approach. Perhaps this framework may have made sense in the tumultuous beginning. However, as our understanding of the pandemic settles, and we learn to live with COVID-19, the courts will resume a normal approach to constitutional law. And Justice Kavanaugh's Calvary Chapel approach charts the path forward.

I welcome comments. Thanks!

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  1. Obviously it is the important Constitutional rights to butcher a baby, have butt sex, and marry a sheep. There is a reason the Founding Fathers wrote these into the Bill of Rights!

    1. There also is a reason America’s best law schools have relatively few movement conservatives as faculty members, while faculties loaded with conservatives are found at schools controlled by conservatives that dominate the lower stretches of reputable rankings of colleges and universities.

      1. It’s the butt sex, duh. Except in Montana.

      2. That or “top” schools are just liberal indoctrination sleep away camps that also rob 18-22 year olds of lots of money via student loans creating a class of indentured servants to those creditors. But, I guess it is all a matter of perspective.

    2. Read the 9th Amendment, Jimmy.

      1. Read the 10th, Sarcastro

      2. Did I miss something?

        The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

        Nothing about baby murder or rump wrangling in there.

        1. Show us on the doll where you were touched.

          1. *Points at AK*

  2. Several SC cases using substantive due process applied the concept of fundamental rights vs lesser rights to determine which rights were worthy of incorporation. Stevens dissent in macdonald highlighted the problem of using substantive due process to determine if a right was worthy. Thomas’s Concurring opinion in mcdonald using the P&I clause of 14A demonstrated the correct approach.

    Bottom line – all rights are equally fundamental / equally essential .

  3. The problem is that initially we believed Covid was spreading through touching/fomites in addition through person to person respiratory droplets. So that is why initially wearing a mask didn’t make much sense because once you touched the mask you could transfer the virus to your body. So once we discovered the virus was primarily transmitted through the air from being expelled from one person into another person then gun stores would no longer need to be shut down. So gun stores could just let one person in at a time with everyone wearing a mask.

  4. I am sure you believe Kavanaugh’s “most-favored nation status” is what the law ought to be. But, as Eugene persuasively argues, it isn’t. Moreover, he makes a compelling case for why it shouldn’t be.

    1. To clarify, you do recognize “most-favored nation status” isn’t what the laws is:

      I do not think Justice Kavanaugh accurately described the current state of Free Exercise jurisprudence.

      But, you argue for a new standard:

      If any secular conduct receives an exemption, the state must explain why religious conduct is denied an exemption.

      What isn’t clear is when is an explanation good enough. Do you agree the state meets its burden in Eugene’s hypotheticals (trespass law, duty to testify, breach of contract, anti-discrimination) even though each area has secular exemptions? If so, how does your standard work to accept the state’s explanations in those cases while rejecting them for COVID-19?

  5. The 0th Amendment: ie the right to unrestricted abortions written in invisible ink on the back of the consitution. Also the right to march packed like sardines with optional face masks and the right to seize territory and declare an indepedent nation but only if its for BLM and you are throwing molotov cocktails.

    1. I liked that meme about how the virus is spread—6 feet apart no mask 20%, 6 feet while wearing a mask 5%, Rose Garden event with Christians and Trump praying to Jesus 0%. Oops. 😉

  6. All civil rights claims against the lockdown have failed, some at the Supreme Court. There is no rights recourse from the criminal enterprise that is the lawyer profession.

    My civil rights free, modified lawsuit against Gov. Murphy of NJ is still alive from March. It is different. It says, not a scintilla of rational basis in the shutdown.

  7. I’d say… all of them. There’s just no constitutional basis for dividing listed rights into fundamental vs secondary.

    The Bill of Rights tends to use quite absolutist language, which doesn’t admit the possibility of a right legitimately being set aside for anything short of a criminal conviction, or the courts being non-functional in a war zone.

    1. Yes, but the rights are …. what? The usual excuse for letting Congress make laws restricting freedom of speech is that “freedom of speech” is a specific legal phrase (IANAL; is this what is called a “term of art”?) which has always been understood to include certain restrictions, such as libel, slander, fighting words, military secrets, etc. Similar, the “right to keep and bear arms” has always been understood to include no prisoners, no insane people, no infants, and so on.

      There are always ways around obstacles.

  8. I sense we have reached peak superstitious clinger.

    1. You have reached peak dumbass.

      1. give him some credit, each day he exceeds his own limits from the day before.

      2. There is no suck thing as peak dumbass. Dumbass is infinite.

  9. “I welcome comments”

    Always a dangerous statement.

  10. What rights are essential? My rights are essential.

  11. Essential / nonessential are the wrong designations since all the rights are essential.

    The correct designations are absolute / non-absolute and – whether you like it or not – none of the rights are absolute.

  12. “If a right was deemed “non-essential,” then the state could regulate, restrict, and even prohibit that right. ”

    If it can be regulated, restricted, or prohibited, it is not a right.
    Damn, this law stuff ain’t that hard, is it?

  13. The premise of this question is flawed. If government defines which rights it can disregard at its whim, then “rights” must be something alienable.

    This discussion is the continuance of debates on “emergency” constitutionalism, which are problematic at best and tyranny-apologist at worst.

    A government of limited powers has no authority to suspend its own limits. On the other hand, a government of general power knows few bounds if any. Similarly, a tyrannical regime sees no limit to its benevolence – even when the populace views its machinations as unwanted.

    The Constitution recognizes no distinction among rights and liberties. Any such construct by our courts is dubious opportunistic rubber-stamping of government overreach. Please see for example: Korrematsu. There are neither national security nor public health exceptions to our rights and liberties guaranteed by the Constitution. Continuing to act as there are simply encourages government overreach.

    All rights are fundamental to ensuring limits on government.
    All liberties are essential to ensuring limits on government.

    Government may have an opinion on those matters, but its opinion is neither fundamental nor essential.

    1. Wow, that’s kinda sorta good, even if I restate in abbreviated terms:
      “A government of limited powers has no authority to suspend its own limits: a government of general power knows few bounds if any. There are neither national security nor public health exemptions to Constitutional liberties and acting as if such exemptions exist simply encourages government overreach.”

  14. Why assume that any rights are negotiable?

    1. Because they all are. Have been since the Founding.

      Our 1A was nowhere near as robust as it is now all the way through till the mid 1950s.

      1. The Bill of Rights wasn’t adopted to fend off purely imaginary threats to our liberty, after all. It shouldn’t be surprising that the rights it guarantees were under immediate attack, and the guarantees were at best only partially respected.

        Using this to declare that those early violations actually defined the rights, in defiance of the clear text of the amendments? Not shocking behavior in a Court whose members are chosen by the violators themselves. But that’s no reason to excuse what they do.

  15. I recommend that Prof. Blackman’s friends invest in a straightjacket and mouthguard for him before the Democrats begin to enlarge the Supreme Court next spring. That might be the only way he gets through 2021 without hurting himself.

  16. It seems to me that this discussion misses the most important element of the lockdown controversy: the fact that there’s no apparent pathway for members of the public to challenge the alleged need for lockdown measures or even the existence of an emergency. It has become obvious to everyone but the nannies that Covid is just a flu, less hazardous to anyone than the average annual seasonal flu virus, and that the official tally of Covid deaths has been faked in multiple ways.

    As it stands the only obvious way to mount such a challenge would be to file an initiative measure and wait years for it to come up in an election — but at least here in California that isn’t even an option since the state election office (SOS) has closed for the duration.

    Please tell me that the law provides us with the necessary standing to make such a challenge immediately. Otherwise we have no option but to resist by unlawful means.

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