Is it allowable for the local government to prevent a child from going to school if she has whooping cough? What else can the government prevent her from doing?
There were lots of related court cases in the first two decades of the 1900s, and in those that got to the US Supreme Court such as https://scholar.google.com/scholar_case?case=17474784919803032884&hl=en&as_sdt=6&as_vis=1&oi=scholarr it was deemed that local authorities had a pretty broad brush under their "police power" to do what they reasonably thought necessary to protect their denizens from infectious disease.
I've said elsewhere that back when deaths from infectious disease were much more common, it was pretty settled that epidemic-related restrictions on the freedom-to-publicly-assemble were not seen as violating the 1st amendment, but courts quickly blocked such efforts that were pretextual and not really for public-health benefit, such as when they were directed at Chinese without sufficient evidence of there actually being an epidemic.
Perhaps your question was more "what's right?" than "what limits are placed on the government?" in this case, but I think it is worth remembering both: • that state and local governments have a variety of powers that were existing and well-used both before and after the ratification of the US constitution, and that the incorporation of the bill-of-rights against lower levels of government has been selective and determined case-by-case by the courts. • that restrictions on freedoms and "privileges of citizens" have been part of the toolbox of public-health authorities since long before the revolution, and up through the last century were not often considered to be in conflict with the enumerated rights in state constitutions.
The "what is right?" vs "what is the government allowed to do?" distinction is a good one. I was trying to take our current arguments out of the current emotions. Thank you for the good info.
If you can show that someone is sick, quarantine is a standard remedy in many cases. But not every case; it’s considered a human rights abuse for HIV, for example.
What’s weird about this approach is that we are quarantining the well. That’s not a settled matter. There’s a kind of sense to it given the impossibility of knowing who is sick. But the destructive effects are far greater, which has to be set against the positive effects.
There were lots of related court cases in the first two decades of the 1900s, and in those that got to the US Supreme Court such as https://scholar.google.com/scholar_case?case=17474784919803032884&hl=en&as_sdt=6&as_vis=1&oi=scholarr it was deemed that local authorities had a pretty broad brush under their "police power" to do what they reasonably thought necessary to protect their denizens from infectious disease.
ReplyDeleteI've said elsewhere that back when deaths from infectious disease were much more common, it was pretty settled that epidemic-related restrictions on the freedom-to-publicly-assemble were not seen as violating the 1st amendment, but courts quickly blocked such efforts that were pretextual and not really for public-health benefit, such as when they were directed at Chinese without sufficient evidence of there actually being an epidemic.
Perhaps your question was more "what's right?" than "what limits are placed on the government?" in this case, but I think it is worth remembering both:
• that state and local governments have a variety of powers that were existing and well-used both before and after the ratification of the US constitution, and that the incorporation of the bill-of-rights against lower levels of government has been selective and determined case-by-case by the courts.
• that restrictions on freedoms and "privileges of citizens" have been part of the toolbox of public-health authorities since long before the revolution, and up through the last century were not often considered to be in conflict with the enumerated rights in state constitutions.
The "what is right?" vs "what is the government allowed to do?" distinction is a good one. I was trying to take our current arguments out of the current emotions. Thank you for the good info.
ReplyDeleteIf you can show that someone is sick, quarantine is a standard remedy in many cases. But not every case; it’s considered a human rights abuse for HIV, for example.
ReplyDeleteWhat’s weird about this approach is that we are quarantining the well. That’s not a settled matter. There’s a kind of sense to it given the impossibility of knowing who is sick. But the destructive effects are far greater, which has to be set against the positive effects.
An active infection, that poses a danger to those around them? Yeah, that would be reasonable.
ReplyDeleteNo infection, but also no immunity (either natural or vaccine)? That's up to the parents. If they are willing to take the risk, that's their choice.