If you want to know whether something is unconstitutional, one group you might ask is judges. And in early rounds of litigation, a reasonably clear—and, to many of us, unsurprising—answer is emerging. Some ways in which shutdowns are applied may indeed be unconstitutional, as when a mayor allows a civic group but not a church to convene in numbers, or when a gun shop gets treated less favorably than comparable small businesses because someone in the governor’s office isn’t fond of Second Amendment rights. Those cases, important as they are, change only a few lockdown outcomes. And the remedy that follows — making restrictions neutral and even‐handed — is different from lifting those restrictions.
As for the argument that lockdowns as such are broadly unconstitutional, that one has begun to reach judges — and fallen on its face.
Business people in Pennsylvania and Michigan have already sued to reopen their businesses, and the judiciary in both states has said no. In Pennsylvania, while three Justices partially dissented, they did so without endorsing the plaintiffs’ contentions of unconstitutionality, instead indicating that they deserved more latitude to develop their case. The Michigan ruling upholding Governor Gretchen Whitmer’s order against challenge was handed down by a judge who earlier served as deputy legal counsel to former Republican Governor John Engler and has advised the state’s Federalist Society chapter.
As for the Framers, they were intimately acquainted with the dangers of epidemics, which had ravaged the colonies as well as wiping out much of the Indian population. From its outset, American constitutional law, like the colonial law that preceded it, recognized states’ and cities’ police power during true emergencies to intercept the sorts of otherwise harmless movements and actions that can turn well‐meaning individuals into vectors of physical harm to others.
Bans on assembly, movement, and badly needed economic activity? Citizens of the early Republic went through all these and much more. Churches shut their doors. People were routinely cooped up in their homes — contrary to some recent speculation, there was no general practice of applying restrictions only to the sick. Not long after the adoption of the new Constitution, the nation’s capital of Philadelphia was struck with a deadly outbreak of yellow fever; persons fleeing the city in the direction of places like Baltimore were turned back at gunpoint, while Alexander Hamilton and his wife Eliza, after surviving the illness, had to undergo quarantine at the behest of authorities in Albany, N.Y. whence they had fled.
This was the soil in which our constitutional law took root. As Michael McConnell and Max Raskin wrote recently, “History buffs may recall that the first Free Exercise Clause case in Supreme Court history, in 1845, involved the prohibition of open‐coffin funeral services in a New Orleans church during a yellow fever outbreak.” (The clergy lost, on the noteworthy grounds that the Supreme Court at that time did not even have jurisdiction to intervene.) Likewise, in the famous case of Gibbons v. Ogden, 1824, Justice John Marshall observed in an aside that state quarantine and health laws “are considered as flowing from the acknowledged power of a State to provide for the health of its citizens.”