Are COVID-19 Mandates Constitutional?

My reading of the Preamble, which captures the spirit of the Constitution, says “yes,” they are.

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The phrase, “to form a more perfect Union” acknowledges the need for a social contract, one that enunciates shared rights and responsibilities, and that names the kinds of things we must do together, through democratic governance, so that we each can thrive, as individuals and as part of the collective. The Preamble goes on to detail the baseline roles for a people’s government:

Establish justice: This further suggests the need to balance rights and responsibilities, and that our fates are linked.

Insure domestic tranquility: A major public health emergency threatens domestic tranquility. We’ve made major advances in public health. These provide us with tools that can be deployed by our federal, state, and local governments to address the pandemic.

Provide for the common defense: In a time of a health emergency, defense must necessarily include public health measures. In general, those involved in common defense give up certain personal liberties as part of their jobs, for the greater good. Now, it is up to each of us to balance liberties with common defense against a pandemic.

Promote the general welfare: This is most clearly tied to the need for public health initiatives, led by the people’s government, managed with equity, to protect the health of all, not just a privileged few. We have yet to achieve health equity. This further complicates our pandemic responses.

Secure the Blessings of Liberty: Given how this is tied to the collective need to establish justice, ensure domestic tranquility, provide for common defense, and promote general welfare, the Preamble acknowledges that our collective efforts create the conditions within which individuals can enjoy the blessing of liberty. A society without stability, tranquility, the rule of law (with true equality before the law), basic welfare provisions, some degree of shared prosperity, is not a society in which most of its members can enjoy the blessings of liberty.

What, then, is “liberty” in this context? For the founders who wrote this Preamble, “liberty” appears to mean the absence of arbitrary restraints, taking into account the rights of all involved. In a good society, liberty suggests a responsible exercise of personal freedom, bounded by the rule of law, as long as it does not deprive anyone else of their freedom. “Responsible exercise of personal freedom” during a pandemic necessarily involves doing our best to comply with health mandates, because not doing so may deprive others of a fundamental freedom — to live full lives.

Protecting public health is very much in the spirit of the Preamble. Many court rulings have used the Preamble as evidence that “[t]he health of the people was in the minds of our forefathers.” How we protect public health during a pandemic should be guided by best epidemiological evidence, not by politics. But it has been politicized. That’s very unfortunate for all of us.

Because I appreciate the vital role of public health officials in a time of a major health crisis, I have no problem with minor inconveniences such as wearing masks when I shop and showing my vaccination card when I attend a music performance (in a well-ventilated space). I would feel a lot better about flying if there were vaccination requirements; the lack thereof is curtailing my travel. If my actions make my neighbors sick (we live close together and most of them are 80+ years old), or if I make my grandkids sick (they cannot get vaccinated), my exercise of “liberty” would seem hollow.