The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I am happy to announce that the Harvard Journal of Law & Public Policy will publish my new article, What Rights are "Essential"? The 1st, 2nd, and 14th Amendments in the Time of Pandemic. This article remains quite popular on SSRN, and has garnered more than 2,500 views in the past month.
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.