San Diego Law Review


Daniel Farber

Library of Congress Authority File


Document Type



The COVID-19 pandemic struck the United States in early 2020. The coronavirus prompted public health mandates without precedent for at least a century. Some states almost entirely locked down. These measures inevitably impinged on activities that the Constitution would normally protect. In confronting these cases, many courts have turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, often considered the leading case in public health law. There is little agreement, however, about how that decision fits into the current framework of constitutional law. As a result, courts have differed widely in the degree of deference they give public health authorities.

This Article attempts to bring light to bear on this dispute. It begins by placing Jacobson in historical context and exploring how later Supreme Court cases make use of it. History undermines the argument for giving Jacobson talismanic significance in public health emergencies. The Article then examines how courts have applied Jacobson in abortion and religious freedom cases during the current pandemic. Some courts view Jacobson as virtually a blank check for government actions; others apply standard constitutional doctrines with little heed of the emergency.

Finally, the Article attempts to provide some guidance about how courts should approach judicial review during the emergency. The best analogy seems to be found in national security cases dealing with free speech. Like outbreaks of dangerous diseases, national security threats pose the need for decisive government precautions, often in the face of great uncertainty. The courts do not abandon normal constitutional tests in national security cases. In applying those tests, however, they give substantial deference to the judgment of the responsible government officials. A similar approach should govern in public health emergencies.

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