Huh? What does the flu have to do with the US Constitution? Here’s what.
The 2017-2018 influenza season shaped up to be the worst on record since 1918, the infamous year when twenty to fifty million victims died of this highly infectious disease worldwide. By mid-season January 2018, the most common type, A(H3), was already widespread throughout forty-nine states and Puerto Rico. Doctor visits were three times higher than normal. And, the proportion of deaths continued to increase sharply. Warnings about the flu’s spread and severity and advice on how to try to avoid it appeared frequently in the media.
Fortunately, the flu vaccine reduced the chance of catching the virus and eased symptoms of those who did come down with it, even though the vaccine had been engineered for a different strain. But, what if the disease threatened to fell millions of Americans, overrunning hospitals, closing schools and businesses, and causing panic? Could the government contain its reach by forcibly quarantining people? After all, that’s what some governors did in 2014 when they feared Ebola might run rampant here. Or, might the president or the Federal Aviation Authority halt flights to Hawaii, Alaska or Puerto Rico to at least contain it within the contiguous forty-eight states?
Unfortunately, our Constitution is vague about the situations under which the government can detain people during such a state of emergency. Normally, habeas corpus applies. This provision says that people have the right to be released from detention if the government can’t supply a reason to keep them locked up.
In 1787, when our Constitution was being drafted, the Framers debated whether there should be any exceptions to this right. Were there any grounds, they wondered, for keeping people confined for no legal reason and with no hope for release? They decided that “in Cases of Rebellion or Invasion the public Safety may require it.” But, a pandemic of bird flu from China, say, never occurred to the Framers. Would that be considered an invasion?
More recently, Congress gave the president the power to declare certain diseases “quarantinable” and to order the “apprehension…of individuals…for the purpose of preventing the introduction, transmission, or spread of such communicable diseases.” This is one of the government’s “police powers.” There are genuine questions, however, about what counts as such a disease and at what point in its spread the authorities can intervene. These are serious issues to consider—before an epidemic arrives
Many of the issues we struggle with have their roots in the creation of the United States Constitution. Cynthia Levinson's Fault Lines in the Constitution takes us back to the beginnings of this document and shows how these problems were first introduced–then describes their consequences for us today. Written with her husband Sanford, an American legal scholar known for his writings on constitutional law, The book was a Jr. Library Guild Selection and a Best Book of 2017 in Publisher's Weekly, Kirkus Reviews, Booklist, School Library Journal and Bank Street.
Constitutional issues remain so current that the Levinsons post updates to their book twice a month! Subscribe to their Fault Lines in the Constitution blog to learn about developments in voting rights, gerrymandering, filibusters, and other issues you might not have known are related directly to the Constitution.
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