America’s COVID Crisis: Our Constitution is Partly to Blame
It is hard to look at the coronavirus statistics and call the U.S. response anything but a pure crisis. We are at or near the top of the global list in cases, deaths, and spread, and new records are seemingly set each day. As we head into the cold winter months with spiking outbreaks, state and federal public health officials say any unified lockdown requirements are unlikely, even as they acknowledge a severe need for a behavior change. Put bluntly, “buckle up for the worst.”
Even more disheartening than the overall numbers are the anecdotes. Jodi Doering, an emergency nurse in South Dakota, recently described in a viral Twitter thread how her COVID patients deny the very existence of the virus until their dying breath. Businesses and communities around my small Illinois city — in the midst of record-setting COVID cases — have declared that they will not enforce any statewide health restrictions. And people across the country falsely assert, to the point of hostility, that it is their right as an American to not wear a mask.
The one modicum of success the U.S. has seen is the encouraging development of a potential vaccine for COVID. Even an efficacious vaccine must be viewed as a limited achievement, however, as substantial numbers of Americans report that they will refuse to get vaccinated against the coronavirus.
There is much blame to go around in the midst of this crisis. When it comes to Americans’ responses to public safety measures, one unlikely source warrants some of the blame: the U.S. Constitution.
Reading the Constitution in a Pandemic
To be fair to the document itself, the Constitution has long been interpreted to allow for state and federal pandemic responses. Dating back to the case of Gibbons v. Ogden in 1824, the Supreme Court suggested that, under the 10th Amendment to the Constitution, individual states have the power to order their citizens to quarantine or isolate. Moreover, the federal government has power to regulate the economy through the Commerce Clause, allowing it to prevent the spread of a pandemic from foreign countries into the U.S. or across state lines.
However, our federalist model of government, which separates powers between the national, state, and local governments, is responsible in part for the uneven COVID protections across U.S. states. The responses (or lack of responses) among the several states build confusion about what is permissible and allow the state actions to become even more politicized in something of a “race to the bottom” to deregulate peoples’ lives. Enforcement through many different levels of government leads to occasional or even widespread non-enforcement in locales like my Illinois city.
But federalism alone is not the problem. Indeed, other elements of the text of the Constitution prove to be just as problematic.
Our Constitutional system is based on the concept of “negative rights” — i.e. things the government cannot do to you. For example, the First Amendment to the Constitution tells us that the government cannot establish a religion, prohibit the free exercise of religion, or abridge our rights to freedom of speech, the press, assembly, or petition. The Second Amendment has been interpreted to mean that the government cannot stop us from owning a weapon in most circumstances. The long-forgotten Third Amendment tells us that the government cannot quarter soldiers in our private homes. The list goes on: the government cannot infringe on our liberties.
It is thus a short step toward making an argument that the government cannot tell us to wear a mask or receive a vaccine. Indeed, lawsuits have already been filed saying that a mask mandate violates the freedom of speech, assembly, or religion. (These suits tend to be quickly dismissed, however.) We have a constitutional culture of negative rights, which is problematic in a global pandemic requiring the government to intervene in our lives.
We can contrast our negative rights Constitution to other constitutions from around the world that take a “positive rights” approach — i.e. enumerating rights that all citizens are entitled to and that the government must provide or protect. Denmark, a country that has received praise for its early response to COVID, enshrines in its constitution that the government must seek to make sure that all who are able to work can find a job, a guarantee of public assistance if one is unable to support oneself, and a right to free public education. South Korea, another country that has thus far staved off the worst of COVID, includes text in its constitution that “it shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals,” which include the right to an education, a right to work, a right to collective bargaining, a right to social security and welfare, and “a life worthy of human beings.”
While some of these positive rights are perhaps realized in the United States, they are not in the Constitution. Keep in mind, even the right to vote is not legally protected in the Constitution, and was in fact intentionally left out. In all, the U.S. Constitution is designed with a spirit of skepticism of the government.
A positive rights approach to constitutionalism, where the government has some special duty to protect its citizens and provide them a good life, provides a better legal culture for taking on humanitarian crises like the COVID pandemic. What is needed is not the rugged individualism of a negative rights constitution, but the communitarian approach to positive human rights.
What’s Missing?
Perhaps the most relevant positive right omitted from the U.S. Constitution is one that can be found in that of over half of the world’s constitutions: a guaranteed right to public health and medical care.
The Constitution of the World Health Organization, which came into force in 1948 and has been referenced by many new constitutions, indicates that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being.”
Take the African country of Senegal. Despite a shortage of doctors, the country has received praise for its public health campaigns to control the pandemic. This may very well be made easier by the fact that its constitution guarantees the right to health and a healthy environment, and suggests that “the state guarantees families in general and those living in rural areas in particular access to health and welfare services.” The Vietnamese Constitution simply states that “everyone is entitled to health care and protection.”
A constitutional protection is of course no guarantee of high quality health care or medical innovation. But it represents a commitment on behalf of the state to the public health and well-being of its citizens. In contrast, in the United States political candidates must regularly deal with the question of whether health care is a right or a privilege. A constitutional system that focuses exclusively on stopping government interference, to the extent that the most recent health care legislation, the Affordable Care Act, has faced continuous legal challenges since its passage in 2010, sets a precedent that is hard for the average citizen to ignore.
Where Do We Go from Here?
This is not to suggest that we must change our Constitution in order to better respond to the pandemic. Such a fraught change would be dead on arrival in today’s political system. So why explore constitutional culture as a contributor to our COVID crisis?
First, the negative rights culture of our constitutional system provides a psychological insight into the arguments of mask opponents and those who ignore or dispute government safety measures. Americans have been trained in and engrained into the language of negative constitutional rights for centuries. Although some of the claims may have little legal or scientific basis, it demonstrates a logical constitutional thought pattern to be skeptical of government interference, even when that interference is in the health interests of the individual and the community. In an age of polarization and a seeming inability to understand where the opposing side is coming from, it may be helpful to mask proponents to understand a major reason why their fellow citizens are not joining in.
On the other hand, I consider the lack of a positive government commitment to public health to be a clarion call for Americans to take their community responsibilities seriously. The pandemic truly tests the limits of American constitutionalism, and politics will not save us. Instead, we ourselves must act in the best interests of our community and public health, even if it cuts against our natural constitutional inclinations. We should not wait for legal interventions to keep us healthy. Wearing a mask and staying at home does not require a government order. The Framers of the Constitution who designed a system of negative rights warned that only a virtuous citizenry will be capable of such self-government, so we must adopt our own virtuous response to the pandemic.
Finally, it is worth noting that many rights regarded as fundamental in the United States are not specifically enumerated in the text of the Constitution: the right to travel, the right to privacy, the right to marriage, and the right to vote, among others. The Ninth Amendment clearly states that the people retain other rights beyond those stated in the Constitution. Moreover, Congress is tasked with doing what is “necessary and proper” to carry out their powers, and although its legal standing is minimal, the Preamble to the Constitution suggests that the constitution and our government was established in part to “promote the general welfare.” In sum, citizens should hold their governments accountable for a failed pandemic response, even if health care is not a positively guaranteed right. Elected officials do not get a free pass, and it is well within the spirit of even a negative rights constitution to vote them out if they do not govern in a satisfactory way.
The U.S. Constitution and the culture surrounding it have many noble and worthwhile features. Historically it has served us well in some important ways. A response to the COVID pandemic is not one of them. Certain features of the text itself, like our commitment to federalism, and omitted features, like a right to health care, detract from a comprehensive and effective pandemic mitigation. Our negative rights culture breeds skepticism and contempt for the government, already hampered in their legal ability to enforce public health measures. So when it comes to our current COVID crisis: blame the politicians, blame our fellow citizens, but be sure to reserve some blame for the Constitution too.
