Louisiana Law Review, Vol. 81, Spring 2021, No. 3. Used with Permission.
INTRODUCTION
The American legal system embeds the principles of life, liberty, and property in its foundation. Yet, there is no consensus about what these words mean. Both political parties espouse these principles while frequently promoting radically different policies in their names. The lofty Lockean triumvirate can also create societal cognitive dissonance in times when its three core principles clash. In responding to the coronavirus, the United States faces questions that pit these values against each other. Should we embrace stay-at-home orders (restricting our physical liberty) to protect the lives of the vulnerable? How should individuals be punished who violate laws designed to protect public health? Can the federal government seize a private business’s or a state’s supply of masks?
Since the outbreak of COVID-19—colloquially known as the coronavirus—America has grappled with the trade-offs between individual freedoms and the health of society at large. The coronavirus is making people question “Americanness” and fundamental rights in new ways. For example, public and private Fourth of July fireworks celebrations around the nation were cancelled or forced to go digital in 2020 due to COVID-19.1 Many state and local governments have capped attendance at religious services—including on major religious holidays (like Easter)—and until Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg, a majority of the Supreme Court did not reject these types of caps.2 Coronavirus laws have even restricted citizens’ freedom of movement between and among the states, with many states, such as New York, imposing mandatory quarantines on certain out-of-state travelers.3
While many Americans may be confronting these issues for the first time in their lives because of the coronavirus, these issues are far from new, and over the years all levels of government have addressed how to balance communicable disease containment and liberty interests.
This Article discusses the extent to which national and state governments currently exercise their authority to prevent the spread of communicable diseases, using two communicable diseases as examples: COVID-19 and Ebola.4 These two outbreaks are useful foils for each other, while still having enough similarities to make comparison useful.
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CONCLUSION
The coronavirus, Ebola, and other communicable diseases may pose a great threat to public safety, but the historical responses of state governments to these threats often undermine the core American values of individual freedom and property rights. State and federal isolation and quarantine law and civil commitment law have developed intermittently, and they do not provide adequate protection for individual rights. Louisiana avails itself of sweeping public health powers, but it should reconsider the breadth of its current stance and more narrowly tailor response options to ensure freedom and property rights are protected. The legislature can do this by enacting due process protections in the communicable disease setting, by creating prophylactic measures to protect property rights during a disease outbreak, and by penalizing those who disregard safeguards aimed at protecting liberty and property rights during a public health emergency. Together, these measures will help protect the community while also respecting the principles of freedom and property rights.
Copyright 2021, by CASEY C. DEREUS.
* Plaintiff-side civil litigator at Baer Law, LLC. The author focuses her practice on inadequate security cases and catastrophic injury cases at both the trial and appellate levels. The author thanks her husband, Garret S. DeReus, for his support, patience, and thoughtful feedback on this Article—especially for his insights on the Americans with Disabilities Act—and every other project she undertakes. She is also grateful to Andrea Gregory DiSandro, Peyton E. Sorah, and Liz Lorio Baer for their comments on this Article. Highest praise to the Louisiana Law Review editorial team for their hard work and professionalism throughout the editing process.