Crisis and the Constitution: The Role of Civil Liberties in Times of National Security Threat

Publication Title

University of Chicago Legal Forum

Document Type

Article

Publication Date

1-1-2025

Abstract

In this Article, we contribute to the unfolding debate around civil liberties and civil rights in times of political, cultural, and health crises. As this Article was drafted, the National Guard was deployed in Los Angeles, California and Washington, D.C. by the President of the United States. In Oregon, a federal judge issued a final order barring the Trump administration from deploying troops to Portland. These events renew questions related to federalism, states’ rights, individual civil rights, and civil liberties. As chaos unfolds, what is the rule of law and role of civil liberties in times of real or purported national security threats? The Article examines these questions in the realm of health crises, drawing upon this context to tease out meaning for a broader urgent discourse in law and society.

This Article uses the COVID-19 pandemic as a case study to shed new light on legal and political discourse. Even if scholars agree that the government possesses the legal or constitutional authority to intervene and limit civil liberties in times of health crisis, what are the limits? What are the checks on governmental authority? Should there be checks? As important—although distinctly different from the questions just enumerated—does the government have an obligation to provide basic services or protections to the public in times of disaster and crisis? This Article takes the position that it does.

These questions arise with new meaning and urgency in the wake of the COVID-19 pandemic and the troubling and dangerous amplification of medical and scientific misinformation. On one hand, rigorous empirical evidence warns that the next global health crisis may be only years rather than decades or a century away. On the other hand, political rhetoric downplayed the risks of contracting the virus, minimized its severity, and undermined protocols to protect against infection during the pandemic. Through a series of observations about the politicization of the COVID-19 pandemic and normative arguments regarding not only the government’s authority, but obligation, to protect the public health, this Article sets the stage for preparing for and navigating future public health emergencies.

Recommended Citation

Michele Goodwin & Allison M. Whelan, Crisis and the Constitution: The Role of Civil Liberties in Times of National Security Threat, 2025 U. Chi. Legal F. 6.

Volume

2025

First Page

165

Last Page

226

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