The last few weeks have seen a massive shift in American life because of the governmental response to COVID-19. Entire cities have been shut down and some elections have even been delayed. While this has been seen as a welcome intervention by some, many people have also expressed concern over the strong measures that governments have taken. For some, the question has arisen as to whether this use of power is legitimate or a power grab. With this article, I hope to clear the air on the issue and demonstrate a constitutional and legal backing for these actions. The fear surrounding this virus is, after all, high in and of itself – we don’t need any more fear on top of it.
The government’s power to regulate public health falls under what are known as “police powers”. Police powers are rooted in both American law and English common law, but they can actually trace back to two Latin principles: sic utere tuo ut alienum non laedas (“use that which is yours so as not to injure others”) and salus populi suprema lex esto (“the welfare of the people shall be the supreme law”).
In terms of constitutional law, states and local governments derive their police powers from the Tenth Amendment. The Tenth Amendment is often overlooked, but it gives all powers not given to the federal government to either the states or the people. Federal authority on the matter derives largely from the Commerce Clause. In short, this use of government power is well-defined and rooted throughout our legal system.
Regulations for public health trace back to the earliest days of our republic, and Congress even passed a law in 1793 (“An Act Relative to Quarantine“) that enabled the President to aid the states in execution of quarantine and public health laws through both the Treasury and War Departments. Further revisions were passed in 1796 and 1799 as well as the many years to come, and state and local governments enacted their own laws as well.
Supreme Court cases like Gibbons v. Ogden (1824) have upheld the right of the states to impose quarantines and isolation, and the practice has extended throughout American history through outbreaks of yellow fever, cholera, flu, and now coronavirus. Public health has been nearly universally seen as a valid justification for government action throughout American history, and the governmental response to COVID-19 falls into this category as well.
Case Study: The Spanish Flu
The year was 1918. On the homefront, life went on in the midst of World War I, and so did disease. The seasonal flu that is so common to this day arrived and many didn’t think twice, but this was no ordinary flu – this was H1N1, commonly known now as the swine flu.
Likely beginning in rural Kansas, the flu quickly spread globally and became the plague of the century. 500 million were infected and as many as 100 million people died, and almost nowhere was spared. Appallingly, most global governments hid the pandemic’s true impact to keep morale high; only neutral Spain reported the carnage and were assigned the blame.
In the midst of the outbreak, some governments were stronger than others in responding to the outbreak. The disease crippled Western Samoa more than any other area, killing 22% of its population. In neighboring American Samoa, however, not a single person died due to an incredibly effective quarantine of boats.
The story in the mainland United States was similar. In September 1918, cities around the country were set to host major Liberty Loan Parades to sell war bonds. 200,000 people met in the streets of Philadelphia, spreading the plague rapidly. St. Louis, a city of over 800,000 people at the time, saw a different outcome; on the advice of Health Commissioner Dr. Max C. Starkloff, the entire city was shut down. Schools were closed, public events were canceled, and places of worship sat empty.
Almost the entire city was on lockdown by November, but these drastic measures worked. The death rate in the city was half that of Philadelphia and was lower than any major US city. Many lives were saved thanks to this prudent government action.
A Time For Action
This is an unprecedented time for most Americans. Relatively few of us have lived through what was once so common, and we can all hope that this will never happen again. But, for the time being, the disruption in our lives is a necessary use of government power.
That doesn’t mean we have to blindly accept everything that happens, but it does mean that the debate isn’t over “can the government do this”, but instead it’s over “should the government do this”. We can only hope that the governmental response to COVID-19 will save lives, as it has in the past.
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