Vol. 31 No. 3 (March 2021) pp. 69-72AMERICAN CONTAGIONS: EPIDEMICS AND THE LAW FROM SMALLPOX TO COVID-19, by John Fabian Witt, Yale University Press, 2020. 184 pp. Hardcover $20.00. ISBN13 978-0300257274.
Reviewed by Andrew Latham and Patrick Schmidt, Department of Political Science, Macalester College, St. Paul, MN. Emails: latham@macalester.edu and schmidtp@macalester.edu.
In a widely reported November 2020 speech to The Federalist Society, Justice Samuel Alito offered a blunt assessment of the state of civil liberties. Beyond the enduring debates over First Amendment freedoms, he claimed that the COVID-19 pandemic “has resulted in previously unimaginable restrictions on individual liberty.” The “indisputable fact,” Alito continued, is that “we have never before seen restrictions as severe, extensive, and prolonged as those experienced for most of 2020” (Golder 2020).
As novel as our current circumstances might seem, neither pandemics nor concomitant restrictions on personal freedoms are new in the United States. Indeed, disease—smallpox, syphilis, yellow fever, malaria, cholera, typhus, influenza, polio, HIV/AIDS—and draconian public health responses have been an enduring and ubiquitous feature of the American experience since colonial times. The first-rate historians who are laboring to understand COVID-19 in the longue durée offer a perspective that can act as a palliative, if not a cure, for the present moment.
In his short book, AMERICAN CONTAGIONS: EPIDEMICS AND THE LAW FROM SMALLPOX TO COVID-19, John Fabian Witt narrates America’s response to our persistent microscopic adversaries. In his account, we have more to chronicle than a battle of doctors and scientists. Rather, Witt has turned his Spring 2020 lecture at Yale Law School into a “citizen’s guide” to how law and politics in the US have in no small measure been shaped by contagions, trusting that “people who know their history make better choices” (p. 8). The history he wishes to tell is robust and dynamic, where “new germs help make new laws and institutions, yet old ways of doing things shape the course of epidemics and the ways in which we respond to them” (p. 11).
The first two chapters frame the dialectic between the imperatives of public interest and personal freedom, between public health and civil liberties. This tension has been vivid in our daily lives for the past year in the contentious debate over masks. Witt’s conceptual tool kit is to explain the choice in public health policies between sanitationist and quarantinist responses. The former includes liberal measures such as education, improved social conditions, and voluntary efforts that “produce a politics...focused on individual rather than social responsibility” (p. 23). These initiatives have flowed, sometimes from a progressive impulse to improve the physical and human infrastructure of society, and sometimes from a reactionary one emphasizing the depravity and filth of the working poor, whose labor was necessary but best kept at a distance from the well-heeled. By comparison, quarantinism doesn’t hide its mechanisms of control, using coercive means to force [*70] lockdowns and limit movement. Originally, reflecting the historical European practice dating from the time of the Black Death, ports were understood as gateways for disease vectors, but quarantinist practices later moved inland as well.
The shared assumption of both approaches is that public health measures should occupy the field. By Witt’s account, public health indeed has usually triumphed: as in Cicero’s words, “salus populi suprema lex esto” (the health of the people is the supreme law). It isn’t too far into the volume that it becomes apparent how our present coronavirus landed amidst a partisan environment with a strong vein of libertarianism, where a significant group found an appealing synergy between keeping government on the sidelines and pursuing herd immunity. The burden of that strategy falls disproportionately on historically disadvantaged communities and people of color. Reading Witt, libertarians might point out the hazards of state intervention. So very frequently, the American response to pandemics has exerted “authoritarian and discriminatory control over people of color, the poor, and immigrant newcomers” (p. 26). The episodes and anecdotes of the first two chapters bear witness to a long history of severe and invidious public health measures.
An award-winning legal historian, Witt relays with impressive clarity the constitutional questions at stake across the arc of American history. A nation with an abiding commitment to civil liberties necessarily struggles with the idea of a reservoir of powers, undefined and perhaps undefinable, for answering health emergencies that can arise suddenly and destructively. America’s long-standing federal-state dynamic is central to these questions, where states still hold most of the “police powers” for addressing the health of the people. In his discussion of JACOBSON V. MASSACHUSETTS (1905), a decision to uphold a vaccine mandate, Witt points out that courts have largely deferred to the well-designed policies of state public health authorities. As Justice John Marshall Harlan wrote, “there are manifold restraints to which every person is necessarily subject for the common good”. But even as states in 2020 again became laboratories of experimentation, they had to be mindful that Justice Harlan and other judges have never given public authorities a blank check.
In Chapter 3, Witt puts a sharper edge on the course that courts have charted between civil liberties and the police power. Yes, courts have refused to hand over complete authority to the state and have limited emergency powers, either by civil liberties principles or reminders of the constitutional distribution of powers. But even if courts have not been especially clear about the tipping point of legality, in Witt’s assessment, “rarely have courts interfered with the basic power to keep people safe in a moment of contagion” (p. 51) and jurists have “typically placed social solidarity over individual liberty” (p. 52).
For Witt, the key to understanding the balance between public health and civil liberties—including the choice between sanitationism and quarantinism within public health responses—has been the question of whose liberties have been at stake. For America’s elite and middle class, civil liberties arguments have provided a shield behind which they have been able to avoid some of the more odious restrictions. For others—African Americans, native peoples, working-class whites, Irish, and other suspect ethnic groups—the imperatives of public health truly predominated. Their asserted moral failings made them conduits for disease [*71] and led them to be treated as less than fully human. For readers unfamiliar with the most horrific incidents, Witt joins to the narrative the ways slaves, and then African Americans, have been forced onto the front lines of pandemics, such as through the long-term syphilis experiment conducted on Black men in Tuskegee, Alabama.
To connect the long historical account to the odd year of 2020, Witt uses Chapter 4 to take an important turn through HIV/AIDS. While for most of American history the tension between public health and civil liberties was resolved in favor of public health, the AIDS crisis offered a different and hopeful synthesis, a moment when it seemed that education and voluntary means were not only friendlier to civil liberties but more effective than quarantine. The “new sanitationism” recognized that in the context of HIV/AIDS, repressive, stigmatizing responses only made it difficult to intervene in the spread of the disease. “The new sanitarians thus seemed to have solved the age-old dilemma,” Witt narrates (p. 60). But it wasn’t to be. A new quarantinism emerged in the face of private health care and intellectual property rights, which are a mode of state power focused on “enforcing private firms’ property rights against the needy” (p. 64).
As Witt arrives in the fifth and final chapter, COVID-19 fully shattered that dream of a synthesis between sanitationism and quarantinism. The old debate emerged in a dreadful context. If it wasn’t bad enough to face a new pandemic amid a highly contested political campaign, social tensions around race and identity simultaneously flared. Making sense of it all will require not only historians, but historical perspective. What Witt has done here is to cast the net wide, viewing this coronavirus through the lens of a shameful record of racial injustice. He follows those threads into a discussion of plea bargaining, the “vastly oversized American prison system” and the extraordinarily high early infection rates among Native tribes and nations (p. 75). Witt also takes aim at the continuing battle over the political economy of healthcare, largely tied to employment that was made vulnerable by the economic impact of a pandemic. Public health experts may not have understood just how deeply partisanship would touch any public health measure. Contact-tracing and cell phone apps offer softer forms of quarantinism, but they also present creeping and novel threats to civil liberties.
All told, Witt writes, “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. Therein lies the wisdom in 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” (p. 80).
Written in the early months of a pandemic, Witt’s last chapter on the present condition understandably feels discursive and undigested, all the more so because it arrives at the end of such a lucid account of how law and public health are inextricably linked across a vast sweep of American history. A shaky footing is inevitable and does little to diminish the value of the book. Perhaps more striking was his choice to end the book with an afterward that, after rightfully seeing social inequality present both in pandemic responses and the protests of May/June 2020, ends with a call to “make the right choice” in the “months and years ahead” (p. 84). As readers, we couldn’t help but read this in light of the November 2020 elections. Fair enough: while the health of the people is the supreme law, in a [*72] democracy the essential decision is selecting the law-givers who will enact that command.
In sum, by encapsulating the fundamental conflicts over the long course of American law and focusing the light of history on the road ahead, Witt’s concise book may not only prove useful in the present, but long into the future.
REFERENCES:
Kalvis Golde. 2020. AT FEDERALIST SOCIETY CONVENTION, ALITO SAYS RELIGIOUS LIBERTY, GUN OWNERSHIP ARE UNDER ATTACK, SCOTUSblog (Nov. 13, 2020, 1:32 PM), https://www.scotusblog.com/2020/11/at-federalist-society-convention-alito-says-religious-liberty-gun-ownership-are-under-attack/.
© Copyright 2021 by authors, Andrew Latham and Patrick Schmidt.
