Editor’s note: due to the novel coronavirus outbreak, Boston College has moved all classes online and sent students home for the semester. The BC Law Impact blog has suspended its normal posting schedule, and bloggers are now focused on writing about the impact of the shutdown and the current state of the world on their academic and social experiences as law students. We are all in this together; let’s find our way through together.
Recently, I’ve been thinking about a night I spent in Panama trapping bats. More precisely, I was taking pictures of a team of German scientists who were trapping bats. I had been traveling in Latin America when a journalist friend asked me to meet him in Panama and tag along on a story he was doing for the Smithsonian Tropical Research Institute, which studies tropical ecosystems and their impact on human well-being. As the virulence of the coronavirus has shown, bats are especially potent and prolific reservoirs of disease due to their strong immune systems. So every night, this team of scientists would head out into the tropical forest, put nets up between trees, and catalog and take samples from all the captured bats.
The goal was to understand the dilution effect, which refers to the way that biodiversity in the natural world helps prevent the spread of disease from animals to humans. The theory is that when an ecosystem has high levels of biodiversity, it is more difficult for a disease to take hold in any one species. Without any species becoming a potent reservoir for that disease, it is more difficult for it to spill over into human populations. When biodiversity is low, however, a single species can serve as host to a critical mass of disease, facilitating its transmission to humans.
In Constitutional Law, I’ve been thinking about how a similar theory is at work in our Constitution’s separation of powers and federalism. The diversity of institutions and actors required for government to take action limits how much unilateral power can accrue in any one place, preventing it from spilling over into tyranny. In Youngstown Sheet & Tube Co. v. Sawyer, Justice Jackson explained how President Truman’s seizure of steel manufacturing plants, usurping Congress’s legislative function, violated the Constitution’s required separation of powers:
“[The Founders] knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation…they made no express provision for exercise of extraordinary authority because of a crisis. I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so. 343 U.S. 579, 650, (1952).
Forty-five years later, when confronted with the question of whether the Brady Handgun Violence Prevention Act could require state officers to execute federal laws, Justice Scalia reasoned that:
[T]he Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people…The great innovation of this design was that “our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.” Printz v. U.S., 521 U.S. 898, 919-20, (1997).
Diversity within the federal government. Diversity between federal and state government. It is governance by dilution effect. But the protections against consolidated power come at the cost of expediency, as Justice Stevens’ dissent in Printz argued:
Matters such as the enlistment of air raid wardens, the administration of a military draft, the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist, may require a national response before federal personnel can be made available to respond. If the Constitution empowers Congress and the President to make an appropriate response, is there anything in the Tenth Amendment, “in historical understanding and practice, in the structure of the Constitution, [or] in the jurisprudence of this Court” that forbids the enlistment of state officers to make that response effective? 521 U.S. at 940.
Apparently there is. Our country’s public health infrastructure is evidence of it. For this crisis, it is too late to change that: the situation is in the hands of the medical profession now. But if people die needlessly because of our sclerotic response to this pandemic, the legal profession will have to take a leadership role in reforming the relevant institutions. There must be a way for them to respond effectively to public health crises without undermining the wisdom of our government’s democratic dilution effect. Until then, however, it’s virtual classes, social distancing, and a waiting game.
I don’t know about you but that relatively passive stance has made me anxious. Driving home from a run to stock up on groceries, I passed the first marijuana dispensary to open in Boston (an example of federalism at work). There was a long line outside. I thought about how people are seeking relief from anxiety right now. I don’t smoke, so the dispensary isn’t for me. But it reminded me of something a French poet wrote: “Get drunk on wine, on poetry, or on virtue. Your choice. But get drunk.” So, if you are like me or like those people lined up outside the dispensary, and you need some help getting through these trying times, you can try wine or marijuana, but you might also try poetry. I recommend Pandemic, by Lynn Ungar, or Beannacht (Blessing), by John O’Donohue.
And if you’re looking for virtue, find a healthcare worker. Whether a doctor, a medical assistant, a paramedic, or a hospital janitor, they are risking their health and in some cases their lives to care for the vulnerable. Thank them for their service. Then you can exercise your own virtue by signing up to give blood at your local red cross donation center. Coronavirus isn’t transmitted by blood but blood drives have been canceled, so donations are urgently needed.
We will get through this and on the other end there will be important legal thinking and work to be done. But until then, many of us will just practice some combination of study, patience, wine, poetry, and virtue.
Ian Ramsey-North is a first-year student learning how to navigate the sudden transition to online learning and social distancing in the age of the coronavirus. He loves to hear from readers. Email him at email@example.com.