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27 Widener L. Rev. 123 (2021)
COVID, Constitution, Individualism, and Death

handle is hein.journals/wlsj27 and id is 143 raw text is: COVID, CONSTITUTION, INDIVIDUALISM, AND DEATH Neil Fulton` The COVID-19 global pandemic has shaken our world. No part of our daily lives has been immune from disruption by the virus.' Governments, businesses, schools, and individuals across the world have had to observe the spread of the virus, evaluate steps to limit its spread, and take action based on reasoned balancing of those evaluations and other concerns. Different approaches have been taken in different jurisdictions.2 In the United States, the response was inconsistent, disputatious, and politicized. Disagreements about what steps to take in response to COVID- 19 often focused less on what countermeasures were effective and feasible than on assertions of individual rights, liberty, and freedom. In other words, these debates have been conducted more in the language of constitutionalism than science, more in political ideology than epidemiology.3 This essay considers why that has been so. It requires an assessment of the tendency to base the resistance of even basic public health policies on assertions-of rights, to base those rights in the Constitution, and to place individual over communal interests.4 It argues that these impulses, embraced without balancing concerns to advance compromise and collective benefit, pave the way to individual and social death. This argument requires consideration of several factors. It looks at the intense individualism common to many Americans, how that individualism becomes the foundation of a view of the Constitution, and how it is connected (and not connected) to existing political philosophy. Individualism has Neil Fulton is the 14th Dean of the University of South Dakota Knudson School of Law. The author wishes to thank Professor Patrick Garry, Joshua Noem, and Molly Fulton for insightful comments. Aspen Bechen and Josey Blare provided invaluable research assistance and Lanae Romey exceptional work in preparing the manuscript. ' Joe Pierre, M.D., From Angst to Ennui: Adjusting to Life During COVID-19, PSYCHOL. TODAY (Apr. 15, 2020), https://www.psychologytoday.com/us/blog/psych- unseen/202004/angst-ennui-adjusting-life-during-covid-19. 2 See, e.g., Multistate, COVID-19 Policy Tracker, https://www.multistate.us/research/covid/public (last visited Sept. 25, 2020) (dashboard with inventory of state responses to COVID-19); Organization for Economic Cooperation and Development, CITIES POLICY RESPONSES, 3 https://www.local2030.org/library/762/Cities- Policy-Responses-Tackling-Coronavirus-COVID-19-contributing-to-a-Global-Effort.pdf (last visited July 23, 2020). 3 See generally Chris Cillizza, Republican Infighting in Idaho over the Coronavirus has Reached a New Low, CNN (Oct. 29, 2020), https://www.cnn.com/2020/10/29/politics/idaho-. coronavirus-janice-mcgeachin-brad-little/index.html. 4 JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION, 288-89 (1996). 123

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