What To Do When Public Health And Liberty Collide

            We’re approaching the ninth month of this pandemic, and the good news is that books written about it are hitting the press. The most unnerving thing about the pandemic thus far has been a lack of perspective. Good books provide that.

            I missed John Fabian Witt’s, American Contagions: Epidemics and the Law from Smallpox to Covid-19 when it first came out. It was published by Yale University Press in July. It’s brief, 118 pages exclusive of footnotes, but worth the read. The author is a professor at the Yale Law School, which, I suppose, explains both the strengths and weaknesses of the book.

            First the book’s strengths: Covid-19 is not the first epidemic our nation, or our nation’s legal system, has ever faced. While it is the worst such public health problem of the past 100 years, it is not unprecedented. The Spanish flu of 1918-1919 was catastrophic; less so the flu of 1968. Our current crisis is more acute and therefore stunning than the longer-term challenges presented by AIDS a few short decades ago.

            In each of these public health crises, the courts were summoned to act. Anti-vaxers, anti-maskers and folks challenging quarantines are a set-piece of American law – they existed a century ago as they do today. The legal debates about these issues aren’t new. And neither is the court system’s seeming willingness to avoid dealing with the issues in any larger, principled way. As Professor Witt notes:

            “Despite its persistence, the libertarian thread in American popular reaction to public health law has historically had little uptake in formal constitutional law, at either the state or federal level. Judges have … rarely … interfered with the basic power of to keep people safe in a moment of contagion.”

            Or, as a Massachusetts public health body declared in 1850: “No family, no person liveth by himself alone. Every person has a direct or indirect interest in every other person. We are social beings – bound together by indissoluble ties.”

            There’s a paternalistic, forgiving tone to the professor’s view of public health. In a crisis, he suggests, the law should stand down, constitutional theory ought to take a back seat to the requirements of public health. I’m reminded of the old Benjamin Franklin quote: “Those who give up liberty for security deserve neither.” But that may be unkind. Does it not require the following rejoinder: “I prefer the freedom life affords to the certainty of death?”

            Witt isn’t offering constitutional or social theory here. He’s merely taking a snapshot of how the law and public policy have responded to public health emergencies. He notes two impulses: the quarantine, in which case folks are isolated, and the sanitationist, in which improved conditions of living are used to eradicate the conditions in which a contagion can thrive. A commitment to civil liberties, he suggests, is consistent with sanitationist efforts. We can, I suppose he would say, following Rousseau, be forced to be healthy.

            Thus spake the Ivory Tower. It’s the sort of thing one expects from a Yale law professor. They do know best, after all.

            There is another view, and the failure to engage it in any meaningful fashion speaks to the weakness of this book. The pivotal cases in public health law and epidemics are old law. Consider the case constantly referred to in decisions this year by courts at both the state and federal level: Jacobson v. Massachusetts, a 1905 decision upholding a federal constitutional challenge to a state requirement that citizens be vaccinated against smallpox.

            Yes, it is the United States Supreme Court’s last word on the issue, and therefore “good law.” But saying this is the equivalent of saying the horses have for most of our history been the preferred mode of transportation.

            Federal constitutional law was a different animal in 1905. Applying the federal Bill of Rights against the states had not yet begun, a process law students learn to call “incorporation” of the Bill of Rights against the states. There simply is no meaningful body of law extant on what limits, if any, the Bill of Rights place on a state’s right to impose public health restrictions on the liberty of a people. I would have liked to see a discussion of that in this brief book; it was absent. Is it an unreasonable seizure to compel to close my office doors?

          Courts today are doing what they have always done in a crisis: ignoring the constitution and deferring to the executive branch or the states. Do we purchase health at the cost of principle?

          Professor Witt cannot be faulted to failing to do what he never set out to accomplish, however. His book can be read with profit by those looking to understand the concept of a state’s “police power,” that is, its general power to legislate in to advance the health and welfare of its citizens. This is a power that belongs to the states; it is not a federal power.           There is no federal police power.

          It may be that Covid-19 forces a new debate on police powers. Ought there to be such a thing: Do we want the president to have the power to mandate mask-wearing, social distancing and the closing of public accommodations? It appears plenty of Americans do want that.

          I’m not so sure.

          Witt’s book reassured me that despite the storm and stress of rhetoric in this presidential election about the pandemic, illness, like the poor, is always among us. We’ve struggled with responding to pandemics in the past just as we struggle now. We survived in the past, just as we will survive this, too.

          But what of our institutions? How solid and enduring are they?

          I say plenty strong. The republic isn’t collapsing, at least not due to a failure of government or a pandemic.

          Witt’s book was a simple pleasure. A brief guide to the perplexed on what the law can and cannot do. It didn’t have all the answers. I suspect that is because there are not answers about how the state can maximize public health consistent with liberty. The American political system is inefficient by design. I hope it stays that way. I prefer the risks of liberty to the white coats of well-meaning public health officers. Yeah, Dr. Fauci has a wonderful bedside manner. But who elected him?

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