The Volokh Conspiracy
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My new article, "Vaccine Passports as a Constitutional Right," (coauthored with Kevin Cope and Alex Stremitzer) is now available on SSRN. It is also currently under submission to law reviews.
Here is the abstract:
Does the U.S. Constitution guarantee a right to a vaccine passport? In the United States and elsewhere, vaccine passports have existed for over a century, but have recently become politically divisive as applied to COVID-19. A consensus has emerged among legal experts that vaccine passports are often constitutionally permissible. Yet there has been almost no serious analysis about whether a vaccine passport can be a constitutional right: whether a government is constitutionally obligated to exempt fully vaccinated people from many liberty-restricting measures. While some measures may be unconstitutional regardless of to whom they apply, we argue that there exist certain public-health restrictions from which the vaccinated must constitutionally be exempted, even if the unvaccinated need not be. The government is never constitutionally obligated to impose liberty-restricting measures in response to an epidemic. But where it does so, it often has an obligation to exempt those who, being successfully vaccinated, pose little danger of transmitting the disease or suffering serious illness. Under U.S. constitutional law, vaccinated people might be entitled to exemptions from six sets of restrictions: (1) domestic travel and movement, under Fourteenth Amendment substantive due process; (2) international travel; (3) uncompensated shutdowns, under the Fifth Amendment takings clause; (4) abortion, under the constitutional right to privacy; (5) restrictions on access to gun stores, under the Second Amendment; and (6) assembly and worship, under the First Amendment freedom of assembly and free exercise clauses. Contrary to some social-justice and liberty-based arguments, this conclusion is also consistent with longstanding liberal principles of fair allocation of costs, equity, liberty, and non-discrimination.
The article addresses a wide range of possible limitations and objections, including explaining why our argument holds true even with respect to the more contagious Delta variant of Covid-19. It is also worth noting that my coauthors and I agree on the issues addressed here, even though we differ greatly from each other on both political ideology and constitutional theory (Kevin Cope, for example, is well to the left of me).
This draft will likely be revised in various ways prior to publication, so we welcome suggestions.
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