COVID and the Constitution: Jacobson, Lochner, Mandates, and Lockdowns

In 1905, the Supreme Court rendered two landmark decisions on the scope of individual liberty: Jacobson v. Massachusetts and Lochner v. New York. Jacobson’s broad deference to public health authority lived side by side with Lochner’s broader conception of economic liberty. While the restrictive precedent, Jacobson, now governs all pandemic response, Lochner is no longer available as a check, having been thrown in the dustbin of legal history. Judges follow a variant of Jacobson that’s far removed from the actual decision to resolve disputes over religious freedom, abortion, gun rights, voting, and more. Over the course of a century, four prominent justices established the irrepressible myth of Jacobson v. Massachusetts.

At a time when state police power has imposed unprecedented limits on individuals’ ability to provide for themselves, Lochner should be brought out of lockdown. The rationales for Lochner’s subsequent disavowal by the Court are largely inapplicable to the COVID-19 situation. Shutdown orders and the like have an economic effect but are not economic policy. They may be one of the broadest assertions of sovereign authority in peacetime, but we lack the constitutional language to deal with the potential danger to liberty implicated by such measures. Please join Josh Blackman and Eugene Kontorovich to discuss their recent work in this area, with commentary by Wendy Mariner.

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