JACOBSON 2.0: POLICE POWER IN THE TIME OF COVID-19

The COVID-19 pandemic has become a legal, as well as a public health, crisis. In response to the pandemic, state and municipal governments have imposed unprecedented constraints on Americans' daily activities. These restrictions provoked a wave of constitutional challenges that have revealed the antiquated doctrinal foundations of states' police power in the area of public health. It has been over a century since the Supreme Court, in Jacobson v. Massachusetts, articulated a broadly deferential approach to constitutional review of state orders issued in response to a public health emergency. The constitutional order has changed since Jacobson was decided; many provisions of the Bill of Rights have been incorporated against the states, the Court has developed tiers of constitutional scrutiny, and constitutional doctrine has evolved a deeper regard for the rights of privacy and bodily autonomy. The Jacobson doctrine must be updated to incorporate contemporary constitutional norms.