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Norrinda Brown

Publication Date

11-12-2023

Abstract

COVID-19 pandemic orders were weaponized by state and local governments in Black neighborhoods, often through violent acts of the police. This revealed an intersection of three centuries-old patterns— criminalizing Black movement, quarantining racial minorities in public health crises, and segregation. The geographic borders of the most restrictive pandemic order enforcement were nearly identical to the borders of highly segregated, historically Black neighborhoods.

The right to free movement is fundamental and, as a rule, cannot be impeded by the state. But the jurisprudence around state power in public health emergencies, deriving from the 1905 case Jacobson v. Massachusetts, has practically resulted in a public health exception to this general rule. Over the past twenty years, scholars have asserted that deference in this context, including denying due process and suspending judicial review, can lead courts to sustain gross violations of civil rights in emergencies. These scholars’ arguments gained traction amongst libertarians and the courts during the COVID-19 pandemic. But scholars and courts alike have failed to sufficiently center race as they update the law of quarantine, despite a four-hundred-year history of racialized quarantines.

This Article seeks to render race visible in our understanding of the nature and scope of quarantines during public health emergencies. The Article makes the claim that COVID-19 pandemic orders and their enforcement schemes are genealogically related to a larger American project of racializing neighborhood borders and constricting Black movement. And it proposes the abolition of carceral responses to public health crises in Black communities, including quarantines, and the reconstruction of liberty to bring Black communities within the sphere of the state’s protection in future emergencies.

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