Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.
PROFESSOR RYAN WILLIAMS
Professor Williams teaches and writes in the areas of constitutional law, civil procedure, and federal courts. His publications have appeared or are forthcoming in the Yale Law Journal, Columbia Law Review, Stanford Law Review, Notre Dame Law Review, and Virginia Law Review.
What has the coronavirus pandemic revealed about the strengths and weaknesses of constitutional law and rights as we understand and interpret them? The pandemic has provided an important reminder of the significance of federalism in our constitutional system. While the federal government obviously had a clear role to play in coordinating national policy and directing federal funds and resources, many of the most practically significant decisions regarding the response to the public health crisis were made at the state and local levels with little practical federal oversight or control.
This experience provided a vivid illustration of both the value of federalism and its potential drawbacks. Had the President, for example, attempted to follow through on his proposal to force a reopening of the national economy before state officials were prepared to lift restrictions they had imposed, he would have found few plausible legal avenues to achieve his objective without obtaining the cooperation of either state officials or of Congress. Centering decision-making authority at the state level also facilitated different responses to the pandemic in different regions of the country, allowing for a diversity of policy responses that enabled states to match policies to local conditions. Such diversity also allowed the states to play their traditional role as “laboratories of democracy,” facilitating experimentation to see which measures worked well and which did not.
At the same time, the division of power and responsibility between state and federal authorities produced drawbacks as well. Failures of coordination between state and federal authorities on matters like testing and access to needed medical equipment may have exacerbated the public health crisis. And the diversity of policies at the state level meant that some states likely chose the wrong policy, contributing to higher rates of infection and death than might otherwise have occurred. This pattern reveals a basic truth about federalism—namely, that federalism functions as a kind of “hedge,” limiting the potential upside of the most desirable national policies while simultaneously protecting against uniform imposition of the very worst policies.
2) What short- and long-term opportunities do you see arising from the pandemic for improving how we define and deliver justice? One possible outgrowth of the pandemic might be a heightened willingness on the part of courts and other government officials to embrace technological solutions in the delivery of justice. The necessities of social distancing have forced courts at all levels of government—including the US Supreme Court—to experiment with video conferencing, teleconferencing, and other technological measures to continue their operations. To the extent judges on these courts grow more comfortable with these technological alternatives to in-person hearings, it could contribute to an enduring reliance on such measures, even after the pandemic ends. Such enhanced reliance on technology could, in turn, contribute to the effective delivery of justice by lowering the costs of participation and enabling a broader range of litigants to bring their claims before physically distant tribunals.
The aftermath of the pandemic may also see a rethinking of the role of incarceration as a tool of criminal and social policy. Given the now-apparent public health risks of confining large numbers of people in enclosed spaces, we might see some degree of rethinking regarding the nature and number of crimes for which incarceration is deemed appropriate as well as a greater willingness to experiment with alternative methods of punishment.
What is your vision for a post-pandemic world: What policies and plans would you recommend to guide us toward building and sustaining a stronger and more just society? One of the first priorities toward building a stronger post-pandemic world should be to take measures to protect against a recurrence of similar, or even more devastating, pandemic outbreaks. Although this process will mostly be a challenge for public health authorities, there is also a role for law to play. For example, the experience of countries that have managed to effectively suppress the contagion suggest that identifying infected individuals early and tracing those with whom they have come into contact provides a particularly effective means of suppressing transmission. But such contact-tracing measures also raise obvious privacy concerns implicating various statutory and constitutional protections. Thinking about how to balance personal privacy interests against broader public health objectives should be a high priority for decision-makers in the near future.
Thought should also be given to how conditions can effectively be managed should another uncontrolled outbreak occur. For example, thought should be given to how to better coordinate policy responses at the state and federal levels to prevent a recurrence of the problems many states encountered in procuring needed medical equipment and resources. Shortages of ventilators and other critical medical equipment in the early stages of the Covid-19 outbreak led to difficult decisions regarding how to prioritize access to such equipment. Some reports suggested that factors such as age and disability may have factored into some such decisions. If similar decisions are required in the future, it also seems appropriate that such decisions should be based on guidelines formulated through some sort of deliberative process—conforming to all applicable statutory and constitutional guarantees—rather than being left to ad hoc decision-making by medical professionals acting under exigent circumstances.
Longer term, consideration should be given to what patterns identified during the pandemic reveal about our broader health-care system. Evidence suggests that health outcomes among infected individuals were strongly correlated with factors such as race and income. Examining the underlying conditions that led to such disparities may help us to build stronger and more equitable systems of health-care delivery moving forward.
Read all faculty Vision Project interviews here.