The constantly negotiated frontier: Liberty and collective security in times of contagion

“ The subject of this Essay is not the so-called Liberty of the Will, so unfortunately opposed to the misnamed doctrine of Philosophical Necessity; but Civil, or Social Liberty: the nature and limits of the power which can be legitimately exercised by society over the individual. A question seldom stated, and hardly ever discussed, in general terms, but which profoundly influences the practical controversies of the age by its latent presence, and is likely soon to make itself recognised as the vital question of the future. ”

“ To secure the public good, and private rights, against the danger of such a faction, and at the same time to preserve the spirit and the form of popular Government, is then the great object to which our inquiries are directed: Let me add, that it is the great desideratum, by which this form of Government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind. ”

“ The liberty of contract and the right of private property which are protected by the limitations of the constitution are held subject to the police power of government to pass and enforce laws for the protection of the public health, public morals, and public safety. ”

“ Much will be allowed to discretion, if manifestly exercised with honesty, fairness, and humanity. But the principles of the common law, as opposed to trials without a jury, searches of houses and papers without oath or warrant, and all despotic invasions on private personal liberty,-the customary usages to respect the laws of the land except where a great exigency may furnish sufficient excuse, should all limit this power, in many respects, in practice. ”

“ Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.
This essential limitation of liberty in general governs freedom of contract in particular. ”

“ Restriction of personal rights and liberties shall be permitted only in the instances specified in law, in the interest of national security, public order, the protection of the morals and health of the population, as well as rights and liberties of other persons.
No one may enjoy advantages and privileges that are contrary to the law. ”

“ They are at liberty indeed, are under a solemn duty-to look at the substance of things whenee r they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.' Mugler v. ”

“ Under what concealment has this power lain hidden, which now for the first time comes forth, with a tremendous & baleful aspect, to trample down & destroy the dearest rights of personal liberty? Who will show me any constitutional injunction, which makes it the duty of the American people to surrender everything valuable in life, & even life itself, not when the safety of their country & its liberties may demand the sacrifice, but whenever the purposes of an ambitious & mischievous Government may require it? ”

“ But, nevertheless, there are limits to the power, and, when these have been passed, it becomes the plain duty of the courts in the proper exercise of their authority to so declare. To sustain the individual freedom of action contemplated by the Constitution is not to strike down the common good, but to exalt it; for surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members. ”

“ And we must also insist that laws and regulations are not only not antagonistic to liberty, but are the very conditions of liberty. They are the expressions of the social life; they are the signs of warning, the directing finger posts which the experience of the past has set up for the guidance of the future; they are the wisdom which men have picked up onthe way. They are, so to speak, the hard bony structure of conduct which supports—and which alone can support—the mobile activities through which the free will finds play. ”

“ Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian. It is, indeed, little else than a name, where the government is too feeble to withstand the enterprise of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property.... ”

“ The liberty of a people consists in being governed by laws which they have made themselves, under whatsoever form it be of government; the liberty of a private man in being master of his own time and actions, as far as may consist with the laws of God and of his country. ”

“ Then, why is there any distinction to be made between relinquishing property and privilege, when the public good requires it, which in all exigencies must confessedly be just? for, if change of circumstances were to have no weight with the legislature in directing human affairs, what would the intercourse of mankind end in, but contention between private interest and public good? But so long as we are blessed with a happy constitution, and rulers possessing humanity united with wisdom, what have we to fear? ”

“ The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. ”

“ We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. ”

“ The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government. If it may regulate the price of one service which is not a public service, or the compensation for the use of one kind of property, which is not devoted to a public use, why may it not with equal reason regulate the price of all service, and the compensation to be paid for the use of all property? ”

“ The existence, or nonexistence, of a significant risk must be determined from the standpoint of the person who refuses the treatment or accommodation, and the risk assessment must be based on medical or other objective evidence. Arline, supra, at 288; 28 CFR §36.208 (c) (1997) ; id., pt. 36, App. B, p. 626. As a health care professional, petitioner had the duty to assess the risk of infection based on the objective, scientific information available to him and others in his profession. ”

“ It is their province to enlighten the public in regard to quarantine regulations,—the location, arrangement, and dietaries of hospitals, asylums, schools, prisons, and similar institutions,—in relation to the medical police of towns, as drainage, ventilation, &c.,—and in regard to measures for the prevention of epidemic and contagious diseases; and when pestilence prevails, it is their duty to face the danger, and to continue their labors for the alleviation of the suffering, even at the jeopardy of their own lives. ”

“ A great many scientists have described germs which they believe to be the causal agents, but up to date these have not been positively proven as the cause of measles. We do, however, know that the infection of measles is found in the secretions from the nose and throat during the first stages of the disease; therefore persons suffering with measles should not be allowed to come in contact with well persons until the period of fever has well passed. ”

“ As noted earlier, infection with HIV causes immediate abnormalities in a person's blood, and the infected person's white cell count continues to drop throughout the course of the disease, even when the attack is concentrated in the lymph nodes. In light of these facts, HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person's hemic and lymphatic systems from the moment of infection. HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease. ”

“ HIV infection does fall well within the general definition set forth by the regulations, however.
The disease follows a predictable and, as of today, an unalterable course. Once a person is infected with HIV, the [p. 634] virus invades different cells in the blood and in body tissues. Certain white blood cells, known as helper T-lymphocytes or CD4+ cells, are particularly vulnerable to HIV. The virus attaches to the CD4 receptor site of the target cell and fuses its membrane to the cell's membrane. ”

“ In addition, OLC indicated that " [t] he life activity of engaging in sexual relations is threatened and probably substantially limited by the contagiousness of the virus." Id., at 274. Either consideration was sufficient to render asymptomatic HIV infection a handicap for purposes of the Rehabilitation Act. In the course of its opinion, OLC considered, and rejected, the contention that the limitation could be discounted as a voluntary response to the infection. The limitation, it reasoned, was the infection's manifest physical effect. ”

“ The duty of private judgment, of searching after truth, the sacredness of belief which ought not to be misused on unproved statements, follow only on showing of the enormous importance to society of a true knowledge of things. And any diversion of conscience from its sole allegiance to the community is condemned à priori in the very nature of right and wrong. ”

“ But though Liberty ought to be given to the People, yet no sort of Goods must by any means be suffered to be carried over the Line, which are made of Materials retentive of Infection. For in the present Case, when Infection has seized any Part of a Country, much greater Care ought to be taken, that no Seeds of the Contagion be conveyed about, than LXVIwhen the Distemper is at a great Distance ”

“ Making available to the public or provision will invade personal privacy, professional secrets, or authors' ventilating right, except where it is necessary for public interest, protects people's life, body, health, or is consented by the person concerned. ”

“ The preamble recites that protection and allegiance are reciprocal duties; and every citizen who yields obediently to the full commands of government should be protected in all enjoyment of personal security, personal liberty, and private property. That the traffic in intoxicating drinks greatly impairs the personal security and personal liberty of a great mass of citizens, and renders private property insecure. ”

“ I take the liberty to believe that if the Ruffian besets my life, a professional Ruffian at large in the open streets of a great city, notoriously having no other calling than that of Ruffian, and of disquieting and despoiling me as I go peacefully about my lawful business, interfering with no one, then the Government under which I have the great constitutional privilege, supreme honour and happiness, and all the rest of it, to exist, breaks down in the discharge of any Government’s most simple elementary duty. ”

“ We depend on our schools, our churches, our homes, to teach our young that the human personally rises to its full dignity when its possessor works and provides and gives without outward compulsion, and not when he stretches out his hand, palm upward.
Our conception of freedom includes national discipline guided by the public interest, which is in constant demand of adjustments for the enjoyment of that freedom. Such measures as the restriction of firearms, the control of imports, and the regulation of exchange fall Within the exigencies of our young democracy. ”

“ Conscious that we with nothing that is improper; that both our declarations and actions have been in strict conformity with our double duty as free men and citizens, we shall persevere in the proper discharge of that duty regardless of the consequences: and so far from being intimidated by such threats, they confirm all our former happy engines of danger to our liberty, from the late measures of our government ”

“ The little customary liberties, the right to do in small things what we have always done, are more highly valued than the greater, more abstract, and less immediate freedoms. And, similarly, most people will rather run the risk of catching typhus than take a few irksome sanitary precautions to which they are not accustomed. ”

“ But in times of public discontent, faction, and disorder, those two different principles may draw different ways, and even a wise man may be disposed to think some alteration necessary in that constitution or form of government, which, in its actual condition, appears plainly unable to maintain the public tranquillity. ”

“ We will ever respect and inculcate virtue, both public and private, and deprecate vice in all its dazzling forms. Nothing shall ever appear in our columns to disturb the present public tranquillity, unless we see danger lurking therein, which duty requires us to expose to public view. ”

“ So whatever brings risk of tumult and disorder, multitudinous processions in the streets of our crowded towns, multitudinous meetings in their public places and parks,—demonstrations perfectly unnecessary in the present course of our affairs,—our best self, or right reason, plainly enjoins us to set our faces against. ”

“ The man who is to till the land must be educated: there is more need, on the side of the public welfare, to educate this man than any other man whatsoever (applause) . When he knows, and when his obligations to society are quickened, he will be ready to become a real conservator; and he will act energetically as soon as the economic pressure for land-supplies begins to be acute. When society has done all it can to make every farmer a voluntary conservator of the fatness of the earth, it will probably be obliged to resort to other means to control the wholly incompetent and the recalcitrant ”