• November 28, 2021

Our new article on “Vaccine Passports as a Constitutional Right” – Reason.com

My new article, “Vaccine Passports as Constitutional Right” (co-authored with Kevin Cope and Alex Stremitzer) now available in SSRN. It is also currently undergoing legal reviews.

Here is the summary:

Does the Constitution of the United States guarantee the right to a passport for vaccines? In the United States and elsewhere, vaccine passports have been around for more than a century, but recently they have become politically divisive in their application to COVID-19. A consensus has emerged among legal experts that vaccine passports are often constitutionally permissible. However, there has been almost no serious analysis as to whether a vaccine passport can be a constitutional right: whether a government is constitutionally obligated to exempt fully vaccinated people from many liberty-restrictive measures. While some measures may be unconstitutional regardless of who they apply to, we argue that there are certain public health restrictions from which the vaccinated should be constitutionally exempt, even if the unvaccinated need not be. The government is never constitutionally obligated to impose restrictive measures on liberty in response to an epidemic. But when it does, it often has an obligation to exempt those who, when successfully vaccinated, present little danger of transmitting the disease or suffering a serious illness. Under United States constitutional law, vaccinated individuals may be entitled to exemptions from six sets of restrictions: (1) domestic travel and movement, under the substantive due process of the Fourteenth Amendment; (2) international travel; (3) uncompensated stops, under the expropriations clause of the Fifth Amendment; (4) abortion, under the constitutional right to privacy; (5) restrictions on access to gun stores, under the Second Amendment; and (6) assembly and worship, under the freedom of assembly and free exercise clauses of the First Amendment. Contrary to some arguments based on social justice and freedom, this conclusion is also consistent with the long-standing liberal principles of fair cost allocation, fairness, freedom, and non-discrimination.

The article addresses a wide range of possible limitations and objections, including explaining why our argument is true even regarding the most contagious Delta variant of Covid-19. It is also worth noting that my co-authors and I agree on the issues discussed here, although we differ greatly from each other in both political ideology and constitutional theory (Kevin Cope, for example, is on my left).

This draft is likely to be reviewed in a number of ways prior to publication, so we welcome suggestions.

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