Negative Freedom in Crisis Times

Abstract

Pandemic emergencies and concomitant needs for interventions to protect public health place great pressure on individual liberty. In the United States, these pressures are exacerbated by views of negative liberty as the freedom to do whatever one wants with one’s person. This essay argues that the original US Supreme Court decision recognizing legislative powers to protect public health, Jacobson v. Massachusetts, was premised on an understanding of freedom of the person as limited by risks to others. Later court decisions have departed from this analysis, instead viewing individual liberties over the person as conflicting with public health. This jurisprudential approach pitting unlimited individual liberty rights over the person against public health contributes to the tensions in the U. S. over mask wearing and restrictions on religious services during COVID-19.