Vaccine Passports as a Constitutional Right

Kevin Cope, Ilya Somin, & Alexander Stremitzer 

Does the U.S. Constitution guarantee a right to a vaccine passport? In the United States and elsewhere, vaccine passports have existed for over a century, but became politically divisive as applied to COVID-19. A consensus has emerged among legal experts that vaccine passports are usually
constitutionally permissible. Yet there has been almost no serious analysis about whether a vaccine passport can be a constitutional right: whether a government is constitutionally obligated to exempt fully vaccinated people from many liberty-restricting measures. We argue that, based on existing
precedent, the government may indeed be constitutionally required to exempt the vaccinated from numerous liberty restrictions. Although governments are not constitutionally obligated to impose liberty restricting measures in response to an infectious disease epidemic, where a government—local,
state, or national—does so, it carries an obligation to exempt those who, being successfully vaccinated, pose little danger of transmitting the disease or suffering serious illness. Under U.S. constitutional law, vaccinated people might be entitled to exemptions from at least six sets of restrictions—(1) domestic travel and movement, under Fourteenth Amendment substantive due process; (2) international travel; (3) uncompensated shutdowns under the Fifth Amendment takings clause; (4) abortion, under the constitutional right to privacy; (5) restrictions on access to gun stores, under the Second Amendment; and (6) assembly and worship, under the First Amendment freedom of assembly and free exercise clauses. This conclusion is correct as a matter of U.S. constitutional doctrine, and—contrary to some social-justice and liberty-based arguments—it is also consistent with longstanding liberal principles of fair allocation of costs, liberty, and non-discrimination.

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