The right of self-defense is fundamental to the sovereignty
of a state. From its earliest decisions, the Supreme Court has recognized that
individual liberty must be subrogated to the protection of the state. The clearest
example of the subrogation of individual liberty to community welfare has been
in the control of communicable diseases.
For the first 150 years of the Republic, communicable diseases
posed a great threat to society. Controlling communicable diseases required
scientific and medical expertise, combined with the authority to impose coercive
restrictions on infected individuals. The courts allowed public health officials
to restrict an individual's liberty without prerestriction due process protections
when the purpose of the restriction was to *392 protect the public and
not to punish. While a restricted individual could petition for habeas corpus,
the public health authority had only to prove a scientifically reasonable basis
for the restrictions. There was no requirement that restrictions be supported
by proof "'beyond a reasonable doubt."' Despite an expansion of civil liberties
in other aspects of life, the Supreme Court has never limited this broad grant
of authority to public health officials.
Even with the spectre of AIDS, contemporary societal fears revolve
around crime, not communicable diseases. Correctly or incorrectly, legislators
perceive that full criminal law due process protections make controlling crime
more difficult. They have responded with laws that use civil restrictions, analogous
to certain public health restrictions, to prevent criminal activity. In a series
of cases, discussed in this article as the prevention cases, the Supreme Court
has upheld such laws.
The prevention decisions narrow the constitutional protections
available to persons accused of posing a threat to society. Based on an expert's
determination of future dangerousness, individuals adjudged to be dangerous
may be incarcerated without a determination of guilt. Because the Supreme Court
decisions upholding these incarcerations use public health rationales, it is
assumed that these cases also revitalize traditional public health precedents.
The prevention decisions, combined with traditional public health authority,
substantially erode the constitutional protections available to persons who
are accused of posing a threat to the state. It is proposed that these persons
would be better protected if the courts and legislatures explicitly balanced
the risk of harm against the individual's liberty interest. An explicit risk
analysis would constrain the power of experts, and would facilitate community
debate on the value of liberty in our society. Without a proper debate on these
issues, we face ever more Draconian laws against politically unpopular behavior,
while groups with political power will continue to escape effective regulation.
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