AMERICAN CONTAGIONS

Don’t want to wear a virus-blocking mask? Well, neither did some people a century ago—and the law caught up with them, too.

In a book that’s both timely, considering the pandemic, and remarkably speedy, considering that it began as a spring 2020 Yale Law School class, Bancroft Prize winner Witt looks at the sometimes contending, sometimes cooperating forces of public interest and private liberty in times of epidemic disease. “New germs help make new laws and institutions,” he writes, “yet old ways of doing things shape the course of epidemics and the ways in which we respond to them.” In the earliest years of the republic as now, he observes, there have been two major branches of disease control: the sanitarian and the quarantinist. Then as now, the sanitarian—wear a mask, practice social distancing—has been reserved for the better off, while quarantines have been brought to bear on immigrant and minority populations. So it is that the White House argues with increased urgency for a wall to block putatively disease-bearing border crossers, and so it is that the earliest colonial inhabitants of the Hamptons ordered that “no Indian shall come to towne…until they be free of the small poxe.” Whether Chinese worker, Jewish immigrant, or Irish tenement dweller, quarantinist measures of control applied to the Other, who often could not obey laws imposed by the landed majority, such as having dining and toilet facilities far apart. Witt documents how the federal government has consistently punted health regulations to the states, with results ranging from Michigan’s banning anyone with a venereal disease from marrying to “Typhoid Mary” Mallon’s serving 23 years in involuntary isolation, “never having been convicted of or even charged with a crime.” No matter which regime is followed, writes the author, the current pandemic violates the doctrine that public health is paramount.

Contrarians and the civic-minded alike will find Witt’s legal survey a fascinating resource.