Great crises test all legal systems. If hard cases make bad law, then very hard problems challenge our legal system to its core. The coronavirus, with its considerable dangers and unpredictability, provides uncharted legal terrain. We have witnessed epidemics and pandemics throughout history, and there are some legal precedents regarding the power of government to prevent the spread of the potentially deadly virus.
These precedents tend to be old and mostly inapplicable to the current crisis. There is considerable case law on the involuntary confinement of patients diagnosed with tuberculosis when it was the most fearsome contagious disease threat. These precedents had created an imbalance, giving broad powers to the government and few rights to individuals.
Today, however, we live in an age of much greater sophistication, both medically and legally. Accordingly, our legal system in the United States will have to adapt these anachronistic precedents to the new realities. It will have to strike the appropriate balance between protecting the health of the many against preserving the rights of the few. It will generally strike that balance in favor of protecting the many, as it has throughout history.
There are several arenas in which legal controversies will be played out. First and foremost are the rights of individuals not to be confined against their will for long periods of time. Laws are already being enacted in New York state and elsewhere to give governors and their public surrogates increased authority to test and quarantine individuals, shut down events, and take other preventive measures. Indeed, most Americans will comply voluntarily with mandated constraints on their liberty. But inevitably, some people will resist, as evidenced by those against vaccination who place their own claims of liberty over the safety of the community. Others will simply not comply for reasons of lethargy, ignorance, or convenience.
The law will give officials authority to compel compliance and to punish noncompliance, but it may not have the resources to act effectively. We lack sufficient trained personnel to safely enforce all preventive measures. We may have to employ deterrence, or the threat of harsh punishment for those who fail to comply. This too is an imperfect solution to a crisis that is not amenable to perfect solutions. We need to aim for the best, or least worst, approaches to provide the most practical preventive measures.
One daunting problem that is likely to arise is how to deal with prisoners or other inmates of facilities that become infected. Such inmates surely will file lawsuits demanding their immediate transfer to safe spaces or, if that is not possible, their furlough or release. A sentence of imprisonment should not be a sentence of death or serious illness, but those dangerous prisoners should also not be allowed to roam free. A balance will have to be struck. Prison authorities need to start planning for this eventuality.
Beyond the important issues of safety and liberty are massive financial issues that have now arisen and will continue to arise as a result of the coronavirus. Billions of dollars will be lost in canceled flights, events, and other major activities. Contracts will be broken, expectations thwarted, and damages incurred. The issues surrounding who will bear these losses will be litigated for years. The only profession that will benefit from these cases and controversies is, of course, the legal profession, which already has been gearing up for the inevitable flood of litigation on the horizon.
In the meantime, we need new laws that can be implemented quickly and strike appropriate balances between the important needs for preventive measures that protect the community and the legitimate rights of people not to be subjected to unnecessary restrictions on their liberty. In nations like China and Iran, these balances need not be struck because they do not operate under the rule of law or the constraints of a constitution. Italy has been imposing draconian restraints on freedom of movement that may well be challenged in domestic or European courts, but they will likely be upheld as necessary to curb the spread of the coronavirus.
If compromises with liberty are required in our country by the exigencies of the current crisis, it is imperative that these compromises be narrowly tailored to the needs of the day and be limited in duration. As Thomas Paine warned during the crisis of our Revolutionary War, “These are the times that try men’s souls.” Today we are seeing the souls of men and women tested by a global health crisis whose outcome is uncertain.
Our legal and political systems are being tested as well. In order to pass these tests, our nation and the world need goodwill, sacrifice, wisdom, and compromise, attributes that are in short supply during this age of divisiveness, recrimination, and extremism. We must rise above these differences to confront this dangerous virus that now threatens us all.
Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is the author of more than 40 books, including his latest, “Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo.”