Constitutionalizing care: How can we expand our constitutional imaginary after Covid-19?

Abstract

Abstract The Covid-19 pandemic has no doubt caused serious disruptions to lives across the globe. These range from minor inconveniences to major consequences to personal, social, political, economic, and constitutional aspects. With the pandemic still present but its biggest effects waning, this framing article for our symposium on Covid-19 seeks to address the question of whether constitutional law should be rethought, recalibrated to create a more resilient, more egalitarian, and more protective constitutional order. It offers a series of provocations centered around the idea of care as a constitutionalist ideal by which to organize a refreshed post-Covid constitutional order. By care, I mean that which is necessary for the health, welfare, maintenance, and safety of persons. The constitutionalization of care could mean a further reorientation of our constitutional focus from the usual “hard” subjects of constitutionalism, i.e. emergency power, pandemic regulation, and the continued working of the legislature, towards what may, so far, have been marginalized as “soft” constitutional subjects like social relations and families. These, I argue, are critical as Covid-19 has shown us that it is these “soft” constitutional subjects that have had the widest and deepest impact on the ground. This article therefore seeks to reconsider our constitutional epistemology.