USA-Article: How Much Liberty Must We Give Up? A Constitutional Analysis of the Coronavirus Lockdown Proposals

Well worth a read and hopefully the first of many articles written in jurisdictions around the world before we all turn into China.

Benjamin Franklin once said that “those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” But what would Franklin have given up to secure a lot of permanent safety – to stop a highly lethal microbe that has already killed thousands of people? Like so much else in our world, his maxim now faces a severe test from the coronavirus.[1]

To save lives, all but eight states have already imposed aggressive measures almost never utilized outside wartime. As the death toll climbs, more severe measures may be on the way. Several prominent voices have now advocated imposition of a nationwide lockdown. A noted progressive legal academic even suggested such measures should be immune from judicial oversight. And the Justice Department has proposed that Congress grant it draconian emergency powers.

While the coronavirus is no doubt frightening, so too is massive state power wielded in the name of emergency. I recently felt that power in a very real way, because when the coronavirus pandemic arose I was on sabbatical in Sri Lanka with my family (including my father, a physician). The government there responded by imposing a military curfew, which we lived under for a week before we managed to get out. Authorities arrested several thousand people simply for leaving their homes. Bunkered down in our rented house, we worried about whether we had enough food to last until the curfew lifted. On the afternoon we returned to California I went for a walk with my family — without fearing arrest — for the first time in days. I have never felt the difference between life here and there so viscerally.

In this country we are taught to pause when asked to trade liberty for security. So we should take a moment to analyze the legal constraints governing potential lockdown proposals inside the United States. Could the federal government or a state impose a Sri Lankan-style lockdown to stop the pandemic? Could the courts be excluded from overseeing such emergency action?

Constitutional law provides substantial guidance for understanding the government’s authority to respond to the pandemic. While court cases involving quarantines to control infectious disease are (thankfully) sparse, “lockdown” in its various forms is a species of preventive detention: a restriction on physical liberty without a finding of guilt after criminal trial. Although the Supreme Court has stated that “in our society liberty is the norm, and detention … without trial is the carefully limited exception,” our constitutional system has long recognized several forms of preventive detention as lawful. Most relevant here, the state may preventively detain individuals who have a serious mental disorder and present a danger to themselves or others.

In general, any exercise of preventive detention authority raises three basic constitutional questions. First, does the state have substantive authority in this context to detain without a criminal trial? Second, is the state’s exercise of that authority reasonable in relation to its purpose – i.e., are the length and conditions of confinement necessary to address the harm at issue? Third, has the state provided adequate procedures to ensure the criteria for exercise of that authority are met for the particular individual(s) involved?

Substantive Authority

Governmental authorities in this country — whether federal or state — almost certainly have authority to preventively detain people to protect public health. One might argue the government should not have power to lockdown people who have done nothing wrong. But the fact that individuals facing lockdown have committed no act that could be criminalized actually strengthens the argument for detention without trial in this context. As with individuals whose insanity makes them dangerous, because the danger here does not arise from any voluntary conduct, the criminal justice system has limited power to address the threat to public safety. The handful of modern cases about quarantine thus recognize the government’s power to detain people with deadly infectious diseases in the name of public safety.

Because we live in a federal system, there is a separate issue regarding a nationwide lockdown: does the federal government, as opposed to the states, have constitutional or statutory authority to address harms that arguably occur solely within a state’s borders. Existing federal statutes do not clearly provide that authority. See 42 U.S.C. 264, et seq. However, the federal government has constitutional authority under the Commerce Clause to address matters affecting interstate commerce. While modern jurisprudence requires such an effect on commerce to be substantial, “Congress’ power extends to activities that [substantially affect interstate commerce] only when aggregated with similar activities of others.

Given the physical and economic devastation that the virus has already created, it seems obvious that the federal government has authority to impose public health measures nationwide. Even in distant regions — think rural North Dakota — where the virus has not (yet) come, if public health experts believe that residents would risk the health of themselves and their neighbors by failing to comply with a lockdown order, the courts would likely defer to that judgment, as they should. Because the virus itself sees no borders, and because certain critical medical resources — gowns, masks, ventilators — are shared across the country and currently in short supply, the harms caused by the coronavirus in any given place substantially affect interstate commerce.

Reasonable in Relation to Purpose

Even where the government has authority to preventively detain, the Due Process Clause requires that the duration and conditions of preventive detention measures “be reasonable in relation to their purpose.” Here, the details of any proposed lockdown really matter.

The government plainly can order social distancing in at least many parts of the country to prevent a catastrophic breakdown of healthcare systems. But there is more than one way to impose a lockdown. For example, shelter-in-place orders like the one I am presently living under in California restrain liberty far less than the curfew order preventing people from leaving their homes in Sri Lanka, which prohibits people from even taking walks that doctors say are good for public health. Similarly, an order closing all businesses — including those providing food —  could present serious constitutional concerns, particularly for those who might reasonably doubt whether the government’s food truck will make it to their house. And while most lockdown proposals presumably intend to limit people to their homes, quarantine orders can also require people to go to other places for controlled isolation. The orders applied to some people on cruise ships a few weeks ago apparently did this. What if the government ordered anyone testing positive to leave their homes and go to a quarantine center, to make sure they would follow proper social distancing protocols? What if the state ordered at-risk groups (think: elderly with immunological problems) to self-isolate or be cocooned (perhaps at government isolation centers), a version of what the British government contemplated?

Such measures would rightly be subject to review to ensure they had an adequate medical justification and were not more restrictive of personal liberty than necessary to serve the public health imperative at hand. Most obviously, if the government imposed a blanket curfew without evidence that shelter-in-place was insufficient, that measure might be unconstitutional, particularly as applied to people who might not be able to get enough food.

Existing federal statutory authority illustrates another important aspect of this reasonableness requirement. The statute authorizing the federal government to impose quarantines for public health gives considerable authority to the Surgeon General, who in turn has delegated that authority to the Centers for Disease Control. The law thus recognizes the role of public health experts in determining whether particular measures are needed, no doubt to safeguard against their politicization.

So too, a court analyzing whether a restrictive measure is reasonable in relation to its purpose (and therefore satisfies the Due Process Clause) will more likely uphold the measure if public health experts have been involved in the development of the policy and endorsed it free from undue political influence. The legitimacy created by such endorsement may also increase the public’s willingness to comply with the measure itself. Who do you trust to tell you what you really must do to stay safe during the pandemic: President Trump or Anthony Fauci?

Adequate Procedures

Even where a detention measure is no more restrictive than needed to protect public safety, our law has historically provided individuals restrained of their liberty for any length of time with an opportunity to challenge the lawfulness of that restraint as applied to them. Almost always this involves an opportunity to show a neutral decisionmaker that the order – even if generally lawful – was mistakenly applied in a given individual’s case.

One might reasonably wonder whether any such protections would be necessary for the current pandemic. After all, many medical experts seem to believe literally everyone in the whole country faces sufficient risk of infection to warrant socially distancing themselves. If there is adequate medical justification to subject everyone order to restraints, what procedural errors could possibly occur?

Sadly, the history of measures that give the government expansive power is rich with possibility. Imagine a governor orders a total lockdown just days before an election to help his party win. A prison guard wrongly accuses an “uppity” inmate of having symptoms to send them to solitary confinement. Here in Southern California another concern looms large. What if police start arresting people who have no homes – there are at least 150,000 such people in Southern California – for being too near others on the streets or in public parks?

The early history of quarantine practices also includes several examples of abuse, including a quarantine in San Francisco that effectively imprisoned all ethnically Chinese people in Chinatown, but permitted whites to leave freely.[2] This history should not surprise us. When the government receives a blank check, those in power are understandably tempted to wield it for their own political ends, often to the detriment of the most vulnerable members of society. Some early data shows African Americans may be disproportionately harmed by COVID-19. We should all be concerned about how state and local governments that have historically discriminated against minorities would respond if handed immense powers to restrict personal liberties. And even if nearly every enforcement decision ultimately proves to be justified, the existence of procedures that allow complaining individuals to raise concerns to neutral decisionmakers serves an important role in preventing abuse.

We should all be concerned about how state and local governments that have historically discriminated against minorities would respond if handed immense powers to restrict personal liberties

Judicial Review

If someone were to challenge a lockdown order issued by the government, courts would apply the principles described above to decide the case. Because a lockdown order restrains physical liberty, the ancient writ of habeas corpus gives courts ultimate authority to determine its legality.

Some have suggested Congress should try to exclude the courts from even considering the lawfulness of any lockdown order. That would be a grave mistake for both practical and legal reasons. Practically, there is little risk that the judiciary – including the Supreme Court, which has already postponed oral arguments due to the pandemic — will underestimate the threat posed by coronavirus. Courts have a vital role to play both in ensuring any lockdown preserves our freedom to the greatest extent possible and in reviewing alleged abuses on a case-by-case basis.

Excluding the courts would also constitute an assault on our most basic constitutional values that could harm our nation for years to come. As awful as it is, the coronavirus pandemic will likely be over in a year or two, but a decision upholding a law permitting the government to imprison anyone without any court oversight based on the state’s assertion that the public health requires it could be with us far longer.

While the Constitution permits Congress to suspend habeas corpus in certain cases of “rebellion or invasion,” the coronavirus is not an “invasion.” Though people sometimes speak of a virus “invading” the body, the courts read the Suspension Clause in light of what the Constitution’s Framers believed it meant in 1789. The Framers intended to refer to “invasions” by people, not diseases, as Justice Scalia once made clear in a description of the historical precedents. And while he suggested there that the courts should defer to a reasonable legislative judgment about when an invasion has occurred, that deference cannot be unbounded. Long before coronavirus, President Donald Trump repeatedly referred to caravans of Central American refugees as an “invasion.” If the government attempted to close the courts based on such meritless claims, the judiciary would retain authority to prevent that radical step. (If you think my analysis here is unnecessary because obvious, consider that a prominent scholar has apparently taken a different view.)


No one should underestimate the danger of this pandemic. But neither should we underestimate the threat to our liberty arising from the government’s response. While other countries may slide into martial law or worse in this time, we can respond to coronavirus without destroying the precious freedom we enjoy in this country.


[1] Franklin himself may not have intended the phrase as we often now use it, as the full context of the quote renders its meaning ambiguous.

[2] Civil commitment laws have a similar history. If you like Tom Stoppard’s plays, check out Every Good Boy Deserves Favour, which portrays the Soviet practice of treating political dissidents as mentally ill.

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