Harvard Journal of Law & Public Policy will publish my new article on the Pandemic and the Constitution

I am happy to announce that the Harvard Journal of Law & Public Policy will publish my new article, What Rights are "Essential"? The 1st, 2nd, and 14th Amendments in the Time of Pandemic . This article remains quite popular on SSRN, and has garnered more than 2,500 views in the past month. Here is the abstract: Under conventional constitutional doctrine, courts pose familiar questions. Is a right "fundamental" or "non-fundamental"? Is a classification "suspect" or "non-suspect"? Should a law be reviewed with "strict scrutiny" or with "rational basis scrutiny? But during the COVID-19 pandemic, a novel question prevailed: was a right "essential" or "non-essential." If a right was deemed "non-essential," then the state could regulate, restrict, and even prohibit that right. Modern constitutional doctrine was simply set aside during the emergency. Different states drew different lines. Some states deemed the free exercise of religion and the right to keep and bear arms as "essential," but access to abortions were deemed "non-essential." Other states did the opposite: religion and guns were "non-essential," but abortions were "essential." And in general, the courts declined to intervene so long as the state also restricted "comparable" activities. Can the free exercise of religion be anything but essential? Can the sole method of obtaining a firearm be deemed non-essential? And under controlling Supreme Court precedent, can abortions be deemed mere elective surgeries? This article provides an early look at how the courts have interpreted the First, Second, and Fourteenth Amendments during the time of […]

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