Wendy Parmet has a new book out, called Constitutional Contagion: COVID, the Courts, and Public Health. It is a long-awaited sequel of sorts to one of her earlier books, Populations, Public Health and the Law (2009). I mention this because, while COVID is the occasion for her argument, i.e., the circumstance that brings her point to the sharpest focus, the account is actually one she has been building for a long time, and its implications transcend the current crisis. At the most general level, Parmet argues for the health of the polity as not just one of but perhaps even the most central value that our laws exist to serve. In this newest volume, she surveys our Constitutional jurisprudence, re-centering our understanding of America’s foundational law in relation to its most fundamental material stakes.
Parmet’s argument proceeds with the sound, measured consideration that we know and trust from her body of work. Thus, she is perfectly within rights to distinguish her position from my maximalist gloss. But as an intemperate enthusiast of the Parmet project, I view her work as teeing up the claim that population health is part of the inner morality of law. Just as Lon Fuller found reciprocity, human agency, and a certain formal integrity to inhere in law, Parmet finds an additional substantive morality at the ground level of law’s project. As she says in her first book, “[P]ublic health is not simply a norm, but also a legal norm that should be embraced by and incorporated into the legal system.” (P. 52.)
This understanding did not used to shock. It was a familiar feature of an older wisdom, the residue of which remains in common law and in the Latin phrase, salus populi suprema lex (“the health of the public is the supreme law.”). Only lately have we in our public law banished basic Hobbesian and Aristotelian insights, suppressing the recognition that bodily security and human flourishing—values inseparable from health—are the reasons for the constitution of the polity to begin with.
Chapters two and three of Parmet’s book reveal that it was not so long ago that our constitutional analysis reflected this basic health-centered wisdom through its police power jurisprudence. Parmet’s excavation of historical caselaw reveals that, in the 1800’s, “if a law appeared to be a health regulation, then the Court . . . would usually accept that it was an exercise of the police power and hence within the states’ prerogative.” (P. 34.) From the 19th century antebellum period into the early 20th century, before many of the Constitution’s individual rights were incorporated to apply to the states, individual rights-based reasoning played far less of a role in cabining the constitutional range of health protections we could pursue as a polity, which at that time consisted mostly of state efforts. Even when individual rights were invoked during that period, the prevailing view was that they “[E]xisted only in relation to the police power and the common good. Because individuals had no ‘right’ to endanger public health or safety, laws that aimed to protect those interests could not violate individual rights.” (P. 35.)
It was surprisingly late, not until after the New Deal, that courts “came to hold that even public health laws were only within the police power if they were reasonable or necessary to achieve their public health goal.” That phrase has since transmogrified into a turbocharged constitutional scrutiny to protect individualism and elevate a lopsided handful of health-harming negative rights, like religious liberty, commercial speech and gun possession. But Parmet cautions us not to naturalize this state of affairs and to remember the older wisdom of a more capacious liberty: “In this bygone world, the liberty that enabled people to stay healthy was recognized as one of the reasons we have governments.” (P. 29.)
Reading Parmet’s book all at once as I did (while recovering from COVID no less) is not for the fainthearted. The various doctrinal trendlines that constitute our unhealthy environment have closed in on us over time. She traces such strands as First Amendment speech and religious liberty rights insofar as they have diminished the scope of federal action; she recounts our anemic, retrogressive equality jurisprudence, and the role of qualified immunity as handmaiden to police violence; the sad recent histories of campaign finance law and receding protection for voting rights. She connects each of these developments to specific health-harming conditions. It was stomach-turning to see gathered in one place all the fronts of regressive Constitutional law converging to train harm on the targets of right-wing ire—including racial minorities and immigrants, women and gender minorities, and persons with pre-existing disabilities or health risks.
And here Parmet’s salus populi account links up with the bald truth of Ruth Wilson’s Gilmore’s famous definition of racism. Racism, Gilmore says in The Golden Gulag, is the “production and exploitation of group-differentiated vulnerability to premature death.” Our constitutional politics is functioning in precisely that manner—shaping, distributing, and patterning mortality, a necropolitics that is, as ever, cleft along old lines. Parmet’s book serves overwhelming evidence of how we have contorted our constitutive laws to thwart the common good. Can it truly be that we would forsake the good rather than hold it in common?
But her message is fundamentally a hopeful one insofar as she is pointing out the contingency of our current constitutional condition, the shallowness of the recent health-hostile stance of the courts, and the more deeply-rooted, pro-public health orientation that we could recuperate.
One final note about the resonance Parmet’s book has in our times: to the extent that Adrian Vermeule and others promote a substantive turn for law, they have typically proffered right wing theocratic candidates for the substantive good at stake. Their projects stall for many reasons, not least of which is the failure to counter Parmet’s case for health as an equally if not more plausible candidate. Her most recent book calls us to consider anew the deflection and distortion of purpose that has come to afflict the constitution of our corpus populi.
