Epidemics and the law
“Salus populi suprema lex,” wrote Cicero: “the health of the people is the supreme law.” For at least two thousand years, lawyers and statesmen have insisted that the public’s health supersedes the ordinary processes of law and politics, and never more so than in time of emergency. The idea is at once hopeful and dangerous. Cicero’s dictum imagines reassuringly that we will be able to escape the usual messy afflictions of the body politic and accomplish what the crisis necessitates. But suspending existing laws and institutions also threatens to undo the hard-won protections of our rights. Martial law or even dictatorship looms, unbound by existing legal restraints.
The history of public health emergencies in the United States, however, shows that crises do not create a state of exception, nor do they beget radically new beginnings, with all their possibilities and perils. For better and for worse, past American public health emergencies have reproduced the preexisting patterns and practices of law and politics, with all the vices and perhaps some of the virtues those patterns entail, reinforcing rather than revising the major themes of American life.
Modern North American history begins with an infectious disease crisis, when Eurasian germs arrived on the continent beginning in the late fifteenth century. In 1492, an estimated two million people lived in North America east of the Mississippi River. But European contact literally decimated this native population, mostly thanks to diseases like smallpox and measles. By 1750, only around a quarter-million Native Americans remained.
In their own communities, settler and colonial authorities built institutions to limit the toll of disease. The Massachusetts Bay Colony established quarantines for vessels when yellow fever broke out in Barbados in the 1640s. And soon after American independence, a yellow fever epidemic chased President George Washington out of the then-capital, Philadelphia, and led the city’s authorities to establish a Board of Health. For the next century, state and local health commissions exercised broad powers to quarantine the sick, to condemn unsanitary properties, to exclude infectious and potentially infectious immigrants, and to compel vaccination for diseases like smallpox. In the name of “the life and health of its citizens,” as two prominent officials put it at the end of the nineteenth century, such commissions coerced “the ignorant, the selfish, the careless and the vicious.”
By many accounts, state and local interventions—coercive or otherwise—were remarkably successful at stopping the spread of disease. New York established the Metropolitan Board of Health in 1866, with sweeping authority to clean the streets, collect and record information about infections, disinfect infected properties, and even go door to door to wipe out unsanitary practices. Diseases like cholera were essentially eradicated. As the University of Michigan historian William Novak puts it in The People’s Welfare, a classic book on the subject, American public health efforts embodied “a vigorous conception of the regulatory powers of the state.” State and local governments deployed fast, flexible responses—federal authorities played almost no role in early public health administration—responses that were increasingly informed by professional expertise. Public health professionals expelled disease after disease, ensuring that yellow fever, smallpox, and other pestilential diseases no longer acted as terrible scourges in American life. A century later, we benefit every day from the work of the first great public health effort.
Health experts relied on what nineteenth-century jurists often called the power of “overruling necessity”—essentially, the authority to do whatever was required to preserve human welfare. But “overruling necessity” did not overthrow the ordinary institutions of American law. Instead, public health imperatives activated those institutions and set them into motion. Throughout the nineteenth century, Americans went to court to challenge the authority of new public health authorities to condemn property, impose quarantines, compel vaccination, and more. Judges reviewed such public health regulations for reasonableness in the same way they reviewed executive and legislative action of virtually all kinds. Courts generally upheld the actions of health authorities, but they insisted that regulation bear a rational relationship to an actual health imperative, and judges made clear that they had the final authority to determine whether a crisis existed and what measures were permitted. As one New York judge put it in People v. Roff, an 1856 quarantine case, public health crises did not “suspend the operation of the constitution” or allow the state to infringe “all the natural rights of the citizen.” The most important public health crisis case in American history, Jacobson v. Massachusetts, decided by the Supreme Court in 1905, upheld a mandatory vaccination program aiming to slow an outbreak of smallpox in Cambridge, Massachusetts. But even here, the Court noted that the state could not compel vaccination in “an arbitrary, unreasonable manner.”
Of course, ordinary law brought with it all-too-ordinary discriminations and injustices. Interventions to stop the spread of cholera from the 1830s through the 1860s regularly targeted poor, Irish, and largely Catholic neighborhoods. During the Civil War and Reconstruction, the dislocation of Emancipation touched off a smallpox scourge among freedpeople to which medical authorities gave little if any attention. Sanitary commission efforts to compel vaccination scapegoated poor, Jewish, and Eastern-European communities. (Officials took it for granted, as one wrote bluntly, that “the death-rate of a particular ward or block” would vary “with the poverty of its inhabitants” by between “ten to fifteen years.”) Authorities in places like San Francisco ruthlessly discriminated against people of Chinese descent in the effort to stem the spread of the plague at the turn of the twentieth century. In the southwest, officials adopted pseudo-scientific regulations that produced and entrenched racial status hierarchies. Under Jim Crow, public health authorities typically treated infectious disease in black communities only when outbreaks threatened to spread across the tracks to the white side of town. Gay men beset by the HIV/AIDS crisis in the 1980s and 1990s had to launch a fierce social mobilization to win the attention and care of their government. At the turn of the twenty-first century, the best epidemiology estimated that 10% of the difference in mortality between blacks and whites was attributable to infectious disease.
Today a new set of challenges confronts the health of the people, but the basic legal landscape is familiar. State and local orders to shelter in place and mandatory quarantines are not new innovations at odds with our historic civil liberties. Federal quarantine orders are relatively novel and legally uncertain. But citizens accustomed to a century and more of freedom from the “overruling necessity” of public health restrictions may be surprised to learn that local officials can arrest them for defying orders to shelter in place. Such orders are among the most traditional modes of government action.
These early days of the novel coronavirus crisis replicate the patterns that left us so unprepared for it in the first place. A callous and supremely self-interested president governs, as he always has, with a cunning instinct for political success and the maturity of an angry toddler. He leads a political party that has been committed to starving the federal government and minimizing its health care capacity for decades. A market-based health care system with a just-in-time model of patient care has left us without critical reserves, even as the business lobby and the White House dither over invoking the much-needed Defense Production Act. As the federal government cedes the field, a hodge-podge of state and local institutions, decentralized hospitals, and private industry scrambles to patch together a response that is alternately inspiring and inadequate. Unjustifiable racial and economic inequalities decide who lives and who dies. Just as they always have.
Meanwhile, the political debates breaking out among people living in isolation or in quarantine proceed according to script, replicating the bitter polarization of a year ago, or two years ago, or three. There are debates over abortion, race and sex inequalities, class injustice, civil liberties, mass incarceration, and immigration controls, now filtered through the provision of medical care. In crisis, the fault lines of ordinary politics reappear, only deeper.
The real supreme law is not our health, but our fecklessness—tempered by institutions that have sometimes managed to redeem us nonetheless.
John Fabian Witt is the Allen H. Duffy Class of 1960 Professor of Law and Head of Davenport College at Yale University. His most recent book is To Save the Country: A Lost Treatise on Martial Law (Yale University Press, 2019) (with Will Smiley).