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Conclusions

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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