We have become accustomed to conceiving of our constitutional rights as affording protection only against government infringement, but not as granting us any positive rights to claim government protection or action. The circumstances surrounding the COVID-19 pandemic should make us question this reflexive resort to negative constitutionalism. The numerous failures of the present federal Administration to ameliorate and address the pandemic are startling. Even under current doctrinal limits of negative rights, the Administration’s failures should give rise to individual constitutional claims. Most importantly, we should reorient our constitutional frameworks, theories, and doctrines toward recognition of positive rights to health and life. We deserve a Constitution that protects our survival.
Ruthann Robson, Positive Constitutionalism in a Pandemic: Demanding Responsibility from the Trump Administration, 12 ConLawNOW 15 (2020)