In Epidemics and Society, historian Frank Snowden observes that “epidemic diseases are not random events that afflict societies capriciously and without warning. On the contrary, every society produces its own specific vulnerabilities. To study them is to understand that society's structure, its standard of living, and its Reference Snowdenpolitical priorities” (2019: 7). In American Contagions, John Fabian Witt provides precisely such an analysis of America's political priorities and social structure, since the early Republic to the present.
Witt presents the books as a “citizen's guide” to the “ways in which American law has shaped and responded” to contagion. Though the book is brief and highly accessible to nonspecialized readers, the label of “citizen's guide” is perhaps misleading: Witt draws on a wealth of historical literature and precedent to craft an original and compelling theoretical framework and prism through which to understand the American reaction to the current pandemic.
Witt begins by drawing a distinction between two kinds of reactions to pandemics. Broadly speaking, Witt argues, governments throughout history—and around the world—have fallen into two categories: “quarantinist” and “sanitationist.” The former governments tend to be more authoritarian, employing state policing powers to impose strong controls over personal movement and other civil liberties to contain outbreaks. Sanitationist states, by contrast, are often associated with a more liberal and democratic approach: they aim to eradicate the environments in which disease flourishes for the general public's health and welfare. The reaction to cholera in England when contrasted with that of eastern European states provides one early example.
Yet as Witt shows, the US does not fit comfortably within either paradigm. To a degree, it has always manifested both strands simultaneously: a sanitationst approach has applied to the rich, the powerful, the white. A mostly quarantinist attitude has applied to everyone else: the poor, the disenfranchised, and racial minorities. To a degree, this has been the case for over a century. Witt demonstrates how in 1900, the bubonic plague led to lockdowns in San Francisco's Chinatown, and among Los Angeles's Mexican population in 1924. Whites in the US have, for the most part, avoided a similar fate. Recent headlines continue to highlight Witt's point: in California, for example, while public schools and playgrounds remain closed, exclusive private schools have successfully petitioned for waivers to reopen, demonstrating their ability to provide adequate social distancing and disinfection. In the COVID motto of “we are all in this together,” “all” seems to apply only to those that American society has already left behind.
Yet at some intersections of American history sanitationism has been applied to the poor as well. The realization that viruses do not adhere to the maxims of American segregation has led to a realization that sanitation is often the only viable option. Within the American brand of sanitationism Witt distinguishes between two strands: progressive and conservative. Whereas the former has historically focused on social planning, and pushed toward improving the living conditions of all, for the better good (introducing clean water and ventilation standards for example), the latter has focused on individual responsibility: “civilizing” the lower classes and reforming their poor hygiene habits. This was done, Witt argues, as “a path to maximizing the value of the laboring poor and protecting elites from the risks of contagions spilling out of poor neighborhoods.” Witt's characterization of such efforts again brings to mind sanitation measures and protocols currently adopted by corporations like Uber and Whole Foods, to ensure that their affluent clientele continue to enjoy the fruits of the labor of their minimum (or not even minimum) waged employees. These employees often do not even receive health insurance from these companies despite their booming profits.
What role has law played in all this? One school of historical thought contends that disease had driven change, “epidemics make the state.” The contrary view holds that politics—and the law that it produces—instead make epidemics. “Viruses evolve to take advantage of the world as it is.” According to Witt, the truth is somewhere in between: “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” (7).
Despite the many continuities in American history, law has been a field in which we can identify some changes: some have been the results of old habits that have died hard, some are new political spins on the past. One such shift has been the legal attitude towards the suspension of civil liberties during times of pandemic. Despite the mythology surrounding American liberties even during contagion, history tells another tale. Historically, courts have recognized states' inherent policing powers to ensure the public's health, even through extreme restrictions on civil liberties. Cicero's maxim salus populi suprema lex esto (“public health is the supreme law”) is what guided the Republic's early jurists, including John Marshall and Lemuel Shaw. To the extent that courts have intervened in public health decisions, they have mostly done so in situations where the means employed clearly violated constitutional standards, such as equal protection, targeting only certain minorities. Not only have states limited people's rights of movement, but Witt reminds us that religious liberties have also been subject to the requirements of public health: urban church-yard burials were suspended during the first decades of the nineteenth century, despite the seeming encroachment on the free exercise of religion. Especially to so-called Originalists, Witt's book comes as an important reminder that history is not on their side. The Founders would have likely taken exception to the US Supreme Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), which held that New York may not enforce ten- or twenty-five-person congregation limits on religious gatherings.
The theoretical framework that Witt offers provides a useful blueprint for analyzing not only American law's reaction to pandemics. It would be interesting to map out the world based on Witt's paradigms and see what counterintuitive results we might uncover. Perhaps both models—quarantinist and sanitationsit—are only Weberian ideal types, with each country falling somewhere along the spectrum. But importantly, contagion and how we confront it puts up a mirror to our societies, often making our ugliest features more pronounced.
