Mapping the constitutional terrain of vulnerability in the COVID pandemic

Abstract

In this paper, we explore the underlying theory of the Croatian constitution in the response to the COVID outbreak. We argue that the operative issue imposed by the pandemic, at least in Croatian constitutionalist circles, was how facts should be related to constitutional values, structures, and norms. Although at first blush a replica of our general inability to get some bearing on a terrain of uncertainty in an unforeseen outbreak, we will explore the matter as a specific problem of constitutional theory, aiming to explore its implications for constitutional dimensions of vulnerability. To do so, we draw from the literature to describe the different ways constitutions may be imagined in relation to facts and then apply this insight to the measures enacted by the Croatian state during the COVID pandemic. The result is a treacherous terrain, where the exercise of state power and its restriction stand on thin constitutional grounds, excluding a spectrum of more substantive interpretations of the Constitution. In conclusion, we argue that this map reveals a narrowed basis for identifying and vindicating vulnerability.