Law, Politics, Public Health and Deadly Epidemics: A Conversation with John Fabian Witt on “American Contagions”
tags: legal history,Supreme Court,public health
If the past is a guide, how our law responds to contagion now and in the future will help decide the course of our democracy. John Fabian Witt, American Contagions.
At this writing, the deadly COVID-19 pandemic has killed a shocking 560,000 Americans and infected about 32 million Americans The United States remains the nation with the highest death toll in the world, and the death rates here betray stunning inequities for people color among other vulnerable and disadvantaged communities.
In March, former White House coronavirus response coordinator for the previous administration, Dr. Deborah Birx, told a CNN reporter: "There were about a hundred thousand deaths that came from that original surge. All of the rest of them, in my mind, could have been mitigated or decreased substantially." Our nation suffered for months under a chaotic presidential administration that mocked science and public health experts as it politicized efforts to reduce infections and prevent spread of the virus.
The Biden administration has made the pandemic its top priority. Many Americans, particularly those in high-risk categories, have been vaccinated, but the pandemic has yet to abate. Communities of color and impoverished people continue to disproportionately bear the brunt of illness and death from COVID-19.
The experience of this novel pandemic in the past year has fueled questions about the role of the federal and state governments in addressing epidemics; the importance of public health versus individual freedoms; the inequities in access to health care; and more.
To help address these concerns, Yale Professor of History and Law, John Fabian Witt, has provided a comprehensive citizens guide to the history of law and epidemics with his recent book, American Contagions: Epidemics and the Law from Smallpox to COVID-19 (Yale University Press).
In his book, Professor Witt explores how infectious diseases through our history have shaped the law, and how law has shaped our response to these recurrent diseases. For the most part, since the inception of our nation, public health has held primacy over other interests such as individual rights. Court decisions often reflected the principle set forth by the Roman scholar and lawyer Cicero more than two millennia ago: “Salus populi suprema lex esto.” [The health of the people is the supreme law.]
But, as Professor Witt stresses, the results of health laws and court decisions have not always been experienced equally by all citizens. While laws may have protected white majority populations, vulnerable minorities and the poor were often ignored or were subject to harsh measures such as confinement and strict quarantines. The book offers stunning examples of past laws that penalized rather than prevented illness among marginalized groups such as Native Americans, recent immigrants, Black people, Asians, and others. As Professor Witt observes, the ostensibly neutral rules and laws that govern American life “contain the compounded form of discriminations and inequities, both old and new.”
And, there’s a new twist in the legal story since American Contagions was published. In recent months, the U.S. Supreme Court has chipped away at public health law precedents with series of religious freedom cases.
As Professor Witt notes, we can intelligently face the future, but only if we grasp our “often disturbing past.” He urges that the history of law and epidemics not only tells us where we have been but shapes the present moment and informs us on where we are headed. And epidemics can be used to illuminate inequities and correct them if we recall the lessons from our imperfect past.
John Fabian Witt is Allen H. Duffy Class of 1960 Professor of Law at Yale Law School where he teaches courses in American Legal History, Torts, History of the Laws of War, and Problems in Legal Historiography. He also taught for a decade at Columbia Law School, visited at Harvard and the University of Texas at Austin, and served as a law clerk to Judge Pierre N. Leval on the United States Court of Appeals for the Second Circuit. He holds a J.D. and a Ph.D. in history from Yale.
His other books include Lincoln’s Code: The Laws of War in American History, which received the Bancroft Prize and American Bar Association’s Silver Gavel Award and was a finalist for the Pulitzer Prize; To Save the Country: A Lost Manuscript of the Civil War Constitution; Patriots and Cosmopolitans: Hidden Histories of American Law; and The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law. He has also written for scholarly journals as well as the The New York Times, Slate, the Wall Street Journal, and The Washington Post.
Professor Witt generously responded in writing to a series of questions on his teaching and his new book, American Contagions.
Robin Lindley: Congratulations Professor Witt on your new and very timely book, American Contagions: Epidemics and the Law from Smallpox to COVID-19. You’ve created a lively and clear guide for citizens on the history of public health, epidemics, and American law. Did the COVID-19 epidemic spark your book or were you already working on this subject?
Professor John Fabian Witt: Thanks, Robin! The book took shape in the spring of 2020 as the pandemic set in. I retooled a section of my course on American Legal History to include a unit on the legal history of epidemics in the U.S. Thanks to some amazing RA’s I was able to gather some awesome materials and some excellent images and I turned my lecture on the subject into a public lecture. My editor saw it and suggested that I turn it into a book – the rest is history!
My boys and I sat at the dinner table, they did school work on Zoom…. We called it our Covid Coffee Shop.
Robin Lindley: An excellent working arrangement at a challenging time. I saw that the book was dedicated to your boys.
As you note in your book, under our federal system, state and local governments bear the primary responsibility for dealing with public health under their “police power.” What is the role for the federal government and Congress in dealing with a nationwide epidemic?
Professor John Fabian Witt: Great question, and we’ve seen a big reversal on this over two administrations now.
It’s a tough question. On the one hand, the fact that germs don’t respect boundaries is a powerful argument for a centralized approach directed by the federal government. My brilliant Yale colleague Nicholas Christakis compares a decentralized approach to letting swimmers urinate in one corner of the swimming pool and hoping for the best. And of course, everyone recalls the period in which federal government inaction led states to be competing for one another for protective gear and ventilators.
On the other hand, we’ve also had a powerful lesson in the dangers of centralized power. The Trump Administration’s mix of malevolence and incompetence was a terrible recipe for pandemic management. Centralized power in public health, as in other domains, is a high-risk arrangement. Our decentralized approach functioned as insurance against the real risk of failure in Washington, DC. Governors were able to adopt masking requirements, business closure mandates, and gathering limits that almost certainly wouldn’t have come out of the federal government.
Robin Lindley: How do you see the national response to COVID-19 under the Trump administration?
Professor John Fabian Witt: The true crisis for any president is the one they are least suited to manage. The pandemic was exactly that for the Trump presidency.
We have a deep history of administration in public health in the US. Public health measures in the mid-nineteenth century produced the modern administrative state. But the Trump administration was deeply resistant to expertise and suspicious of the civil service and the state. Part of this was specific to Trump, who is a kind of genius of self-promotion and who rightly identified the professionals in the federal bureaucracy as a threat to his unaccountable entrepreneurialism in the White House. But Trump’s particular reasons for seeing the state as a threat connected to a more general phenomenon, namely the Republican Party’s resistance to the administrative state.
Of course, it’s always important to observe that lots of countries around the world struggled with the pandemic. But if you look at per capita death rates, the only developed countries with rates as bad as the US (countries such as the U.K., Spain, and Italy) are countries that had older and more vulnerable populations. Some western countries did much better than the U.S. even though they had substantially older populations. Austria and Germany are good examples. Japan, Singapore, and South Korea boasted performances that put all these western countries to shame.
Robin Lindley: At last, vaccines are gradually getting to the public. What more would you like to see the Biden administration do to protect citizens?
Professor John Fabian Witt: A competent federal government could set clearer standards for state public health guidelines on questions such as reopening. The current spike in Michigan, for example, is one where local political pressures seem to have led state officials to abandon crucial public health regulations. Tougher limits are unpopular, but the federal government can sometimes reduce or deflect those pressures.
I also think the federal government and the Justice Department may be in a position to help states manage a new and emerging problem, which is the centralized policing of state public health regulations by the Supreme Court.
Robin Lindley: The previous president and many of his partisans undercut science by openly mocking public health officials and scientific experts. Is this fierce politicization of a deadly virus and science denial unprecedented or were there earlier examples of such politicization?
Professor John Fabian Witt: This is a great question. There are certain precedents for politicization, but the way in which politicization is playing out in national partisan terms is, so far as I can tell, completely unprecedented and incredibly dangerous.
It shouldn’t be news that unpopular public health impositions produce political backlash. That is an old story. My Irish and German Catholic ancestors in Five Points in New York City in the 1850s were pretty sure that Whig and then Republican administrations in City Hall discriminated against them in the administration of public health rules because they were Democrats. The Democrats certainly urged them to think so. Residents of Staten Island rioted when City Hall tried to locate a quarantine facility close to their homes.
So political controversy and public health rules in epidemics go together historically. What’s new is that the country’s political parties are polarized along ideological lines. What used to be local fights have become national battles with much higher stakes.
Robin Lindley: It seems our history shows that the courts usually uphold state efforts to protect public health in line with Cicero’s dictum that you note, “health of the people is the supreme law.” Yet, some recent US Supreme Court decisions indicate that religious freedom trumps public health protections. What do you see in these recent decisions?
Professor John Fabian Witt: If there’s one thing I would like readers to come away from my book with, it is that today’s courts have made a radically novel departure from the long history of judicial deference to public health officials.
Going back at least to the time of Chief Justice John Marshall, courts have recognized that governments need to be able to protect the health of the people. Courts have played a role in shaping and channeling public health limits, sometimes ruling out the abusive uses of government power. But they have rarely if ever gotten in the way and blocked public health authorities from putting in place the measures they think important. The paradigm case has been Jacobs v. Massachusetts from 1905, in which the Supreme Court upheld mandatory smallpox vaccination. In the novel coronavirus pandemic, by contrast, state supreme courts in places like Wisconsin and Michigan struck down state COVID-19 limits. The Michigan decision was especially striking because it ruled the state’s emergency public health arrangements unconstitutional.
At the U.S. Supreme Court, a series of religious freedom decisions starting just before Thanksgiving and accelerating last week have interposed individual rights against public health limits that, candidly, had colorable public health rationales.
Robin Lindley: You note that public health measures often have protected white populations while targeting or neglecting the powerless: the underprivileged, minority groups, immigrants, and others. Are there examples of discrimination and public health that stand out for you?
Professor John Fabian Witt: A classic and dreadful example is San Francisco at the turn of the twentieth century, when local officials imposed a quarantine on Chinatown that was limited only to people of Chinese descent. Time and again, politically vulnerable populations have borne the brunt of the awesome public health powers of the state.
There is a paradox here. Those powers are dangerous and awesome. But they are indispensable, too. The public health power Cicero talked about – salus populi suprema lex – is like the power of national self-defense. Terrible things can be and have been done in its name even though we can hardly do without it.
Robin Lindley: What changes in law and policy would you suggest to protect citizens, particularly minority groups and other marginalized people, during an epidemic?
Professor John Fabian Witt: Epidemics are paradigm cases for panicked public policy making, and courts can play a valuable role in constraining the worst forms of arbitrary discrimination. The Federal Ninth Circuit Court of Appeals, for example, struck down the San Francisco plague quarantine of 1900.
But today the most discriminatory features of the pandemic seem to arise out of socio-economic and health care inequalities. Until we have better systems for the provision of basic social goods like health care, income, and housing, we will see poor Americans in vulnerable positions.
Robin Lindley: It seems that economic inequity and systemic racism loom large in your accounts of vulnerable populations and public health.
You have a unique background as an academic historian with a law degree and you’re known for your groundbreaking and accessible books and other writing on how law has shaped the American past. What brought you to a career that combined law and history?
Professor John Fabian Witt: Is it true that everyone finds their way for a mix of personal and professional reasons? My father is a brilliant lawyer in Philadelphia. He teaches now at Penn as an adjunct professor. Early in his career, he pursued a Ph.D. in history. I suppose I’ve been singularly uncreative in pursuing much the same path! At the same time, my curiosity about the law resists the usual disciplinary boundaries in the law school world. I move from subfield to subfield, writing about and teaching about industrial accidents, constitutional law, contracts, war, and more.
I think my secret project may be to try to make sense of it all by studying a little bit of everything. The risk is that I’m an expert in none of it. It can drive me to distraction, but I wouldn’t have it any other way.
Robin Lindley: This past year has been painful for many citizens, and often frustrating for those who look to science for answers when addressing a deadly pandemic. Where do you find hope in these challenging times?
Professor John Fabian Witt: I got my first vaccine dose two weeks ago in a pop-up public health clinic run by the New Haven Health Department. After so much dreadful failure in our public health infrastructure, it felt like impressive evidence of reservoirs of state capacity and good citizenship.
Robin Lindley: That had to be gratifying. Do you have any closing thoughts for readers on the law and epidemics or anything else?
Professor John Fabian Witt: One of the great challenges of the coronavirus pandemic is that it has revealed the limits of some of our most powerful and long-standing institutions. In the U.S. we rely on private property and markets to deliver all sorts of crucial social goods. People rely on markets to put food on their tables, keep a roof over their heads, and get medical care for themselves and their families. Such markets have considerable virtues. But the pandemic has made salient the limits of such markets in situations of public health risk.
Collective risks press us to develop collective solutions. (Think of the glorious democracy of New Haven’s pop-up vaccination clinics.) Our private mechanisms have produced dreadful outcomes for the most vulnerable. Consider that our overall death rates are double those of comparable western European countries like Germany. Or consider that once we adjust for age, Black and Latinx people have accounted for twice as many deaths per capita as whites. Such disparities are a result of legal arrangements and policy choices. We can do better.
Robin Lindley: Thank you Professor Witt for your thoughtful comments and congratulations again on your groundbreaking and timely new book American Contagions.
Robin Lindley is a Seattle-based writer and attorney. He is features editor for the History News Network (hnn.us), and his work also has appeared in Writer’s Chronicle, Bill Moyers.com, Salon.com, Crosscut, Documentary, ABA Journal, Re-Markings, Huffington Post, and more. Most of his legal work has been in public service. He also served as a staff attorney with the US House of Representatives Select Committee on Assassinations and investigated the death of Dr. King. He can be reached by email: firstname.lastname@example.org.
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