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The Constitution Is Not a Suicide Pact: Quarantine, Masks, and The Constitution

Marc S Stern


  • The legal basis for government-mandated quarantine measures, in light of public health crises like the COVID-19 pandemic, can be found in historical, biblical, and legal precedents supporting the use of quarantine for public welfare.
  • Individual constitutional rights should not supersede public health interests.
  • There are limits of personal liberties in consideration of others' well-being.
The Constitution Is Not a Suicide Pact: Quarantine, Masks, and The Constitution Rybalko

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As Americans, we are privileged to live in a free and open society. The Constitution guarantees our rights. However, "the Constitution is not ‘a suicide pact."'  Sheriffs, clergy, and others claim a constitutional right to ignore stay at home orders, go unmasked, and gather in large groups. These claims lack any reasonable, factual, or legal basis and are frivolous. Protection of the public health by means of the reasonable exercise of the police powers is a primary reason for the formation of government. This article explores the legal bases of the government's right to order quarantine as part of its inherent police power to act for the greater public good.

The concept of isolation to avoid spread of disease is as old as the Old Testament. "Come, my people, enter your chambers, and shut your doors behind you; hide yourselves for a little while until the fury has passed by." (stay at home) (Isaiah 26:20 ESV)

And "a plague ridden person ...… cover the lower part of their face (wear a mask) and cry out, Unclean, Unclean.” (so people can take care to avoid them) As long as they have the disease they remain unclean. They must live alone; they must live outside the camp.” Leviticus 13:45-46 NIV (parens added). And Leviticus commands that if the Cohen/High Priest shall see the plague-spot, he shall quarantine the plague-spot for seven days. The Jewish holiday of Passover is an early example of a quarantine. Sanitary laws were the first public health measures. An early record of these laws is in Leviticus 11.

Quarantine in the modern world originates from quarantena, the Venetian language term meaning "forty days," the 40-day isolation of ships and people practiced as a measure of disease prevention related to the plague.  The legal principles employed to sustain state public healthpolice power were sic utere tuo ut alterum non laedas (use that which is yours so as not to injure others) and salus publica suprema lex esto (public well-being is the supreme law).

 "[T]he tendency of judicial and public opinion to translate the maxim, salus populi suprema lex; the public health is the highest law; and whenever a police regulation is reasonably demonstrated to be a promoter of public health, all constitutionally-guaranteed rights must give way, to be sacrificed without compensation to the owner." Tiedeman, State and Federal Control of Persons and Property, § 169.

Quarantine was established in England as part of the common law. It was even mentioned, albeit in another aspect, in the Magna Carta in 1215. Blackstone observed that "disobeying quarantine orders merited severe punishments, including death."

At the time of the adoption of the U.S. Constitution, the United States and the states adopted English common law as the law of the land. Quarantine was a recognized component of the police powers  at the time the U.S. Constitution was adopted. The common law is all the statutory and case law background of England and the American colonies before the American Revolution. (See Martin v. Superior Court, 176 Cal. 289, 292-293 [168 P. 135, LR.A. 1918 B 313]; Civ. Code,§ 22.2; Black's Law Dictionary (4th Ed.) pp. 345,346). People v. Rehman, 253 Cal. App. 2d 119, 150, 61 Cal. Rptr. 65 (Cal. Ct. App. 1967).

Justice Marshall, in Gibbons v. Ogden, 22 U.S. 1 (1824), writing for the majority, found that quarantine was part of the police powers that remained with the states when they adopted the constitution.

In People ex rel. Barmore v. Robertson, 302 Ill. 422,427, 134 N.E. 815, 817 (1922), the Illinois Court held:

That the preservation of the public health is one of the duties devolving upon the state as a sovereign power will not be questioned. Among all the objects sought to be secured by governmental laws none is more important than the preservation of public health. The duty to preserve the public health finds ample support in the police power, which is inherent in the state, and which the state cannot surrender. Every state has acknowledged power to pass and enforce quarantine, health, and inspection laws to prevent the introduction of disease, pestilence, and unwholesome food, and such laws must be submitted to by individuals for the good of the public. The constitutional guaranties that no person shall be deprived of life, liberty, or property without due process of law, and that no state shall deny to any person within its jurisdiction the equal protection of the laws, were not intended to limit the subjects upon which the police power of a state may lawfully be asserted in this any more than in any other connection. 12 R. C. L. 1271; Booth v. People, 186 lll. 43, 57 N. E. 798, 50 L. R. A. 762, 78 Am. St. Rep. 229; State v. Robb, 100 Me. 180, 60 Atl. 874, 4 Ann. Cas. 275; Kirk v. Wyman, 83 S. C. 372, 65 S. E. 387, 23 L. R. A. (N. S.) 1188; Ayres v. State, 178 Ind. 453, 99 N. E. 730, Ann. Cas. 1915C, 549.

The U.S. Supreme Court again addressed the issue of police power in Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of State of Louisiana, 186 U.S. 380, 385, 22 S. Ct. 811, 814, 46 L. Ed. 1209 (1902), holding, "The state board of health may, in its discretion, prohibit the introduction into any infected portion of the state, persons acclimated, unacclimated, or said to be immune, when in its judgment the introduction of such persons would add to or increase the prevalence of the disease."

Three years later the court specifically upheld a law requiring vaccination in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 38, 25 S. Ct. 358,366, 49 L. Ed. 643 (1905):

The authority of the state to enact this statute is to be referred to what is commonly called the police power, -a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and ’health laws of every description; ... ‘

The court concluded:

... that the police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression. Extreme cases can be readily suggested.

Jacobson, supra, at 38; see, also, Zucht v. King, 260 U.S. 174, 176, 43 S. Ct. 24, 25, 67 L. Ed. 194 (1922).

As for claimed denial of Constitutional rights, see Justice Oliver Wendell Holmes' unanimous decision in the case of Schenck v. United States, 249 U.S. 47 (1919), "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

In Washington the law is, "That the preservation of the public health is a proper subject for the exercise of the police power goes without saying; indeed, it is the first concern of the state." State ex. rel McBride v. Superior Court for King Cty., 103 Wash. 409, 419, 174 P. 973, 976 (1918).

This has been the clear holding by other state courts that have addressed the issue. Ex parte Roman, 19 Okla. Crim. 235 (1921):

The power of the Legislature to prevent the introduction and spread of infectious and contagious diseases cannot be questioned, and, the power to make quarantine regulations is one of the most important conferred upon the health authorities, and such regulations constitute a proper exercise of police power.

See, also, State v. Hutchinson, 246 Ala. 48 (1944), 18 So. 2d 723; Dowling v. Harden, 18 Ala. App. 63, 88 So. 217 (1023); Ex Parte Caselli, 62 Mont. 201, 204 P. 364 (1922).

Ex parte Co., 106 Ohio St. 50, 60, 139 N.E. 204,207, 1 Ohio Law Abs. 10 (1922), found, quoting with approval, Zucht v. King, 43 Sup. Ct. 24, 67 L. Ed. 194:

Mr. Justice Brandeis in the opinion regards and states it as:

  1. 'Settled that a state may, consistently with the federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.'
  2. 'Settled that the municipality may vest in its officials broad discretion in matters affecting the application and enforcement of a health law.'
  3. 'Settled that in the exercise of the police power reasonable classification may be freely applied, and that regulation is not violative of the equal protection clause merely because it is not all embracing.'

In Justice Jackson's well-known words, the Constitution is not "a suicide pact." Terminiello v. Chicago, 337 U.S. 1, 37, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) (dissenting opinion in a case involving the First Amendment). The Constitution itself takes account of public necessity. Ziglar v. Abbasi, 137 S. Ct. 1843, 1883, 198 L. Ed. 2d 290 (2017).

We are now the subject of a pandemic in which, according to the CDC, over one million Americans have died and many more die daily. While vaccines and booster shots have greatly reduced serious illness, hospitalizations, and death from COVID-19 and Paxlovid is an approved, effective treatment for mild to moderate symptoms, new waves of COVID-19 are still reported. There is apparently no cure for the COVID-19 virus. It is the primary purpose of government to "provide for the public Welfare."

If masks and distancing will alleviate this loss, no man or woman has a constitutional right to disregard the public welfare, especially in view of the easy transmissibility of some COVID-19 variants. Law enforcement officials, sworn to uphold the law and serve the public welfare should do the job for which they swore an oath. Anything else is a defalcation of their sworn obligation to protect the public health. And, in any event, when each of us invokes our individual constitutional rights when it comes to wearing masks and observing social distancing, we would do well to remember and observe the quote attributed to Justice Oliver Wendell Holmes and others when it comes to constitutional rights as they pertain to COVID-19 precautions:

“The right to swing my fist ends where the other man’s nose begins.”

As originally published in the September King County Bar Bulletin.