John Fabian Witt’s American Contagions, a startling feat of synthesis in five short chapters, is intended as a “citizen’s guide to the ways in which American law has shaped and responded to the experience of contagion.” On page 107 of this slender volume, Witt, a professor of law and history at Yale University, in New Haven, Connecticut, poses a question to readers: How did history matter? Readers thus have to share the foundational belief that history does matter to engage with the question of how it matters.
Witt describes the two basic pathways of response to epidemics among the US and other modern nation states. One response, termed “Sanitationist,” is generally associated with liberal reformers like John Snow and looks to formulate policies that eliminate disease from poor environments. The other pathway, “Quarantinist,” has authoritarian tendencies—quarantinists are noted for their assertiveness in controlling the bodies and lives of their subjects.
The first three chapters look at these two pathways as they played out in the US from the colonial era up to the beginning of the twentieth century, and particularly the interplay between (a weak) federal authority and energetic state and local authorities who had no trouble instituting “innumerable public health mandates.” These chapters reveal that many contemporary state lawsuits brought against governors and legislators for mask mandates, shelter-in-place orders, and restrictions on religious gatherings would have never stood a chance in nineteenth-century state courtrooms. For instance, back then, in Michigan—a state no stranger to activism against COVID-19 restrictions—a person could be fined up to $100 for failing to report a loved one with smallpox. Witt locates state public health mandates in the sanitationist camp, as they worked to alleviate conditions that promote disease. Witt also documents a countervailing quarantinist camp in the US during that era, derived from the federal government’s power to impose maritime quarantines. Quarantinist responses in the US, first exercised against German immigrants in Philadelphia after the 1793 yellow fever epidemic and seen in many restrictive immigration laws up through the twentieth century, have most often been associated with exclusion and prejudice. The starkest aspects of quarantinism discussed in early chapters are those directed at the control of Black bodies, starting with the mistaken belief that African Americans were immune to yellow fever and continuing up through the building of the Panama Canal, when Black laborers were housed in tents without mosquito screens and suffered death at a rate four times that of White laborers.
The final two chapters sketch out the changing nature of the two camps of thought. Public health authorities, whom one might have associated with quarantinist ideologies, became something of civil libertarians during the HIV battles of the late twentieth century and Ebola outbreaks in the twenty-first, opposing forced isolation and quarantines of exposed persons because it would drive people underground. The sanitationist camp became identified with pharmaceutical firms because of their ability to gain monopoly control over treatments through the proliferation of patents, thus limiting access to needy populations.
Witt then explores our current circumstances in light of twentieth-century experiences and court decisions. It was thought that after the 1905 Jacobson v. Massachusetts decision, which granted states authority to mandate vaccinations, power would eventually migrate to the federal government. Yet something of the reverse happened: Supreme Court rulings in 1995 and 2012 made it virtually impossible for the federal government to enact any kind of medical mandate. Witt notes that a Congress without the power to compel people to buy health insurance is likely a Congress without the power to mandate shelter-in-place rules or quarantines in the states. More worrisome is the movement among more conservative justices to prioritize the right of religion and religious assembly over other public health concerns, overturning a long tradition of deference to the states with regard to restriction of religious activities during public health emergencies.
Witt’s argument is that our history and legal traditions matter. The split and decentralized nature of public health responsibility led to “awkward” and “bumbling” responses to the COVID-19 pandemic. The quarantinist tradition enshrined in legal structures created gravely disproportionate risks for people of color.
The book closes with the accusation that our legal system has failed us: “A decent society that relies in ordinary times on private property and the market to create and distribute wealth and flourishing must have legal arrangements that are up to the task of providing for basic needs in crisis times,” Witt writes. “Therein lies the ancient Ciceronian idea that the health of the people is the supreme law. American legal rules and institutions utterly failed to enact this moral imperative in the coronavirus emergency.”
Witt makes elegant and cogent arguments for the moral, political, and public health imperative to rethink the relationships between state and federal authority and repair the legal structures that bind the most vulnerable Americans to lives of shorter duration and higher risk. His book is a start in answering a question of another ancient thinker, Hillel the Elder, “And if not now, when?”
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