The COVID-19 pandemic killed over eighteen million people worldwide and occasioned the most invasive mobility restrictions most nations have ever witnessed. In global discussions about state responses to the pandemic - both learned and popular - two familiar views of the role of the state frequently emerged. The ‘Leviathan argument’ bemoaned the impotence of courts and legislatures to control the ‘hyper-executive’ state. The ‘Ciceronian argument’ - that the safety of the people is the supreme law - either saw rights and law as obstructive of public health or found folly in the idea that enacted law could meaningfully bind the executive in an emergency. This article refutes both positions. It argues that a robust state is required to protect both public health and democracy, the rule of law, and rights. This ‘positive constitutional state argument’ supports a particular model of emergency powers: bespoke statutory schemes that enable urgent action while keeping accountability institutions active and vigilant. This article sustains these claims by drawing on a global dataset of over fifty in-depth studies of national responses to COVID-19. These studies reveal not only the structure and practice of emergency powers worldwide but also that egregious executive aggrandizement was largely kept in check. The article draws lessons from this global survey to show how a positive constitutional state can best optimize constitutional values without compromising the safety of the people.
Jeff King (Thu,) studied this question.