w w w.BERKSBAR.org
Book Review American Contagions, Epidemics and the Law from Smallpox to COVID-19 By JOHN FABIAN WITT Reviewed by Judge Jeffrey K. Sprecher
“The health of the people is the supreme law.” — Cicero
T
he author presents a title so long one might fear buying the book, especially considering that its subject matter is so complex because contagions and epidemics have ravished the world since the beginning of time. But his book is far from voluminous, and I’m happy to write that it’s an easy read despite being jam-packed with a chronology of state and federal cases and diverse executive action taken in the 250-year history of American jurisprudence.1 It covers citizens’ rights in America versus states’ police power in just five chapters.
Police Power Defined In 1904, Ernst Freund in his book The Police Power, Public Policy and Constitutional Rights defined police power as the power of the state to secure and promote public welfare by restraint and compulsion. Black’s Law Dictionary defines it as the inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, health, morality, and justice. But, writes John Fabian Witt, a professor of law and history at Yale in a case that interprets the Tenth Amendment to the U.S. Constitution, the U.S. Supreme Court declared that one sovereign, the federal government, lacks police powers.2
18 | Berks Barrister
Prejudice and Discrimination
Prejudice and discrimination can be found in the application of laws to the different classes of people throughout history, even in America. If you look up either term in his index Mr. Witt directs you to see “minorities, racial inequities.” When the reader does, there are eight more suggestions to separate parts of the book as well as to more places throughout the index under different racial and ethnic terms. It is a big part of the book, only because it has played such a large role in the type of laws passed and the political power exercised in America’s fight against epidemics. There is the infamous Buck v. Bell case decided in 1927 where Justice Oliver Wendell Holmes upheld the compulsory sterilization of Carrie Buck, a young Virginian woman who had been labeled “feeble minded” after becoming pregnant out of wedlock. “The principle that sustains compulsory sterilization is broad enough to cover cutting fallopian tubes,” Holmes wrote, “Three generations of imbeciles are enough.” 3 Witt gives another example known as Typhoid Mary. Discriminatory state power was sometimes exercised against specific individuals as well as against particular communities. Consider Mary Mallon, dubbed “Typhoid Mary,” whose sad life story offers an especially vivid illustration. Mallon was an unmarried, middle-aged, Irish-born domestic cook in Manhattan in 1907 when outbreaks of typhoid fever occurred among several of Manhattan’s wealthiest households. An enterprising public health official traced the outbreaks back to
