The Pandemic Constitution

Abstract

Pandemics threaten the health of our bodies and economies. They also threaten the health of our political and legal institutions. When COVID-19 hit, governments were utterly unprepared to meet the challenge. So were judges. Tasked with adjudicating the constitutionality of unprecedented lockdowns and emergency restrictions, and lacking recent precedents or scholarship to help them reflect, they reacted incoherently and ineffectively. To successfully meet the next, inevitable pandemic we must learn from our current hardships and devise a set of constitutional tools tailored to deal with public health emergencies. We need a pandemic constitution.

Keywords: constitutional theory, judicial review, COVID-19