The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Thankfully, epidemics are no longer a routine feature of American life. The long struggle of learning how diseases worked, improving public health, and developing medical countermeasures has separated us from what was once taken to be a basic part of the human condition. Perhaps we are returning to an age in which major public health crises are not entirely unusual, but we are certainly out of practice in facing a threat like COVID-19.
Perhaps we can chalk up some of the reaction to our current situation to unfamiliarity. Despite the warning to change social norms and engage in social distancing, the president continues to gather with his task force in front of a single microphone to offer public updates on administration efforts to fight the disease and young adults continue to pack themselves into nightclubs and bars.
We are also seeing unfamiliar exertions of government power. Wall Street Journal opinion writer Matthew Hennessey tweeted,
I didn't realize we lived in a country where a local political official could order private businesses closed.
— Matthew Hennessey (@MattHennessey) March 16, 2020
I regret to inform you that we have always lived in a country in which political officials can order private businesses closed.
A key constitutional foundation of the American system of federal powers is that the national government is one of enumerated powers specified in the text of the written Constitution but that state governments are ones of general jurisdiction which hold the residual of public power, lacking only the exceptions that have been specifically carved out by written constitutions. Traditionally, this doctrine was known as the "police power," which was conventionally understood to include the power of the state to make all necessary laws to protect the welfare, safety, morals and health of the community.
This general background of police powers underwrites myriad routine restrictions that state and local governments put on social life. It is what allows local governments to authorize health inspectors to examine the kitchens of restaurants and order them to close if they discover problems. It is what allows fire marshals to limit the number of people who can occupy a public venue. It is what allows police officers to arrest people for urinating in the street. It is what allows government officials to prevent you from just accumulating mounds of garbage in the backyard of your suburban home. It is what allows government officials to tell you that you cannot keep a Bengal tiger as a pet in your house. It is what allowed states to ban free-standing billiard halls or bowling alleys as contributing to public disorder.
Notably, American courts long insisted that the police powers limited as well as empowered government officials. Legislatures possessed a lawmaking power to act in the public interest, but they could not properly be understood to possess a lawmaking power to exercise public force to advance favored private interests. My sometimes coauthor Howard Gillman has a magnificent book outlining the rise and decline of the police powers jurisprudence that state and federal courts once used to emphasize the constraints on government power. Courts once emphasized that state legislatures could not, under the guise of the police powers, simply declare that a previously lawful business was now illegal and all of its inventory was now contraband that could be seized by the government (as states did during the first wave of alcohol prohibition in the early nineteenth century). Courts informed legislatures that they could not simply prohibit individuals from pursuing their non-noxious vocations in their private residences. While governments could, in the name of public safety, regulate whether bakeries maintained unsanitary conditions in their work space, they could not regulate how many hours per week a baker could work.
States often enough abuse the police powers, and courts frequently do not stand in the way of such abuses. It was also the police power that underwrote Progressive eugenics measures like the forced sterilization of those deemed mentally deficient by the state and racist measures like the ban on interracial marriages. But the larger point is that American constitutional jurisprudence has long recognized a vast authority on the part of the states to regulate private social and economic activity in the name of the public welfare.
Dramatic measures to address the spread of disease have long been a part of those police powers, and we have long recognized that extraordinary circumstances could justify extraordinary state actions. When incorporating the village of Brooklyn, for example, the state legislature of New York authorized the creation of a "board of health" empowered "in the case of the prevalence of any such [pestilential or infectious] disease in any part of the village, to inclose and shut up such infected part, so as to prevent all intercourse therewith." The state of New Hampshire authorized local "health officers" to "remove any person infected with the small pox, the malignant cholera or other malignant pestilential disease, to some suitable house, to be by them provided for that purpose . . . and make such regulations respecting such house, and for preventing unnecessary communication with such persons or their attendants, as they may think proper." The state of Massachusetts directed town leaders "when the small pox, or any other disease dangerous to the public health, is found to exist in any town" to "use all possible care to prevent the spreading of the infection, and to give public notice of infected places to travelers, by displaying red flags at proper distances, and by all other means, which in their judgment shall be most effectual for the common safety."
Government officials might misuse their discretion or make bad policy choices about how best to combat the spread of an infectious disease. But drastic governmental action to stop an epidemic has long been understood to be an appropriate limit on individual liberty in order to protect public safety.