“There is nothing new under the sun,” says the Preacher, and Yale Law Professor John Fabian Witt shows the truth of it in his brief legal history of pandemics in American Contagions: Epidemics and the Law from Smallpox to COVID-19. Yet even old lessons can be forgotten or neglected. When Witt turns his analytical gaze away from yesteryear and looks at today’s COVID policies, he himself turns a deaf ear to some of the very same lessons he would have history teach us.

Witt explores several dualisms: the common good and public health versus individual liberty; preventative sanitationism versus reactive quarantinism; and national-level versus state-level policymaking. Overlaying these dualisms is the public choice insight (not that he identifies it as such, but it is) that the American political system responds more faithfully to the interests of the affluent and well connected than to the economically poor and politically disconnected. As a result, the poor and minorities tend to bear the brunt of anti-pandemic policies. Disappointingly, however, he fails to follow his critical framework all the way down to the disturbing, if not radical, implications for assessing today’s COVID policies.

Common Good versus Individual Liberty

The exercise of state police powers—the authority of state governments to advance the health, welfare, safety and morality of their people, and an authority not shared by the U.S. national government—reach their acme in response to pandemics. We think of today’s pandemic as exceptional. Yet until relatively recently, the threat of pandemic was the rule rather than the exception. Today’s struggle to frame appropriate policy responses to COVID has largely just resurrected historical debates and conflicts over drawing the line between individual liberty and government actions to protect public health.

Some of the historical events Witt mentions could be taken from today’s headlines. There were anti-vaccination riots in Milwaukee in the 1890s; the city actually prohibited the forcible quarantining of small-pox victims. Several states prohibited their school districts from requiring vaccinations for enrollment. In response to a city-wide masking mandate during the 1918-1919 flu epidemic, San Francisco saw the founding of an Anti-Mask League, and saw widespread and determined non-compliance with its masking requirement. Even when many states adopted mandatory masking, enforcement was often spotty and penalties were often mild.

Drawing the line between public health and individual liberty was, and remains, an inherently political process. There’s nothing inappropriate with that, and nothing surprising about those lines being debated and contested in a democracy. Today’s policy debates have even resurrected yesterday’s odd bedfellows. Witt notes, for example, the rise during pandemics of a de facto coalition between rural whites and urban poor and minorities, groups perhaps differently motivated but nonetheless sharing suspicions of government pandemic policies.

Sanitationism versus Quarantinism

Witt defines “sanitationism” to include a broad set of preventative policies “designed to eliminate environments that breed disease.” These policies are not merely disease focused, but include broadly oriented policies aimed at raising general economic conditions of the poor. In contrast, Witt defines “quarantinism” as the set of “authoritarian” policies that “exercise forceful controls over the bodies and lives of their subjects, locking down communities, neighborhoods, and cities and imposing broad quarantine orders . . .”

It is with this dualism that Witt introduces one of his important analytical themes, that the U.S. has consistently employed both types of policies simultaneously, albeit applying one or the other largely in response to socioeconomic status of the person or group at issue:

One approach for those with political clout, and another one for everyone else. America has always been a divided state with a mixed tradition. For middle-class white people and elites, public health policies typically reflected liberal sanitationist values.  . . .  At the nation’s borders . . . and for the disadvantaged and for most people of color, the United States has more often been authoritarian and quarantinist. American law has regularly displayed a combination of neglect and contempt toward the health of the powerless.

The casual ease with which government institutions could make the most invidious of distinctions can shock the conscience. For example, in a 1909 case Witt did not discuss, Kirk v. Board of Health, the Supreme Court of South Carolina allowed an elderly white lady with leprosy (which she caught while a missionary in Brazil) to remain in her home until the municipality finished building a new “cottage” for her required confinement on the edge of town. Consider the Court’s characterization of the alternative for Ms. Kirk,

[T]he place to which the board of health requires [Kirk] to be removed is the city pest house, coarse and comfortless, used only for the purpose of incarcerating negroes having smallpox and other dangerous and infectious diseases . . .

To be sure, this is South Carolina in 1909. Yet the solicitation the Court shows for Ms. Kirk’s comfort, and the Court’s utter obliviousness to the African Americans confined to the same “pest house” which the city’s public health board would have confined Ms. Kirk (and even then, her confinement in the “pest house” would have lasted only until her new city-built “cottage” were completed), is breathtaking.

While Witt indicts the morally checkered history of pandemic policies in the U.S., he stops half-way in applying his dualism to today’s COVID policies. While Witt notes the disproportionate COVID mortality rates for the poor and minorities, he is oblivious to the unequal burdens that governments’ COVID policy responses have placed on poor and minority communities.

Witt’s own historical analysis predicts that governmental responses to COVID would disproportionately burden the poor and minorities in the United States. While Witt doesn’t follow the trail, that need not prevent others from considering how his historical lens might apply to today’s pandemic.

First, health officials and (many) public officials early on adopted a mini-maxing framework for evaluating the wisdom of pandemic policies. This framework is a “better-safe-than-sorry” approach, and endorses policies that would minimize the maximum possible harm along the single dimension of disease mortality. This framework ignores probabilities; its application can make sense in the absence of credible information about infection and mortality rates. The problem with mini-maxing along a single dimension of disease, however, is that it necessarily ignores costs imposed on other dimensions, such as the economic and social costs of policies aimed at controlling the disease.

Consistent with Witt’s claims about “quarantinism” in the history of American pandemic policies, we see an almost willful blindness by public health authorities to the impact of draconian business closure and stay-at-home policies on Americans, and particularly their impact on less affluent Americans. Safety-at-all-cost policies are tailor made for more affluent Americans, those who tend to have remoteable jobs and have their own financial safety cushions. Those who work in service and blue-collar jobs, however, face much more limited employment alternatives. The adoption of a coarse blunderbuss of policy responses to the pandemic ignored costs uniquely imposed particularly on less affluent Americans; costs a less coarse policy approach could have avoided.

For example, the extraordinarily costly closure policies stood in stark contrast to much less costly masking and social distancing requirements. The closure policies were doubly harmful given that even the early evidence suggested that the virus was not a significant threat to the population at large, but only to discrete and identifiable at-risk subgroups. The “better-safe-than-sorry” framework imposed a disproportionate economic cost on the most economically vulnerable parts of the U.S. population. This is consistent with Witt’s historical evidence, yet Witt ignores the application.

Secondly, the absence of in-person school instruction appears likely to have a greater negative impact on children from poorer households than on more affluent children. Poorer households have less access to environments and technologies that support on-line learning. They also have less access to substitutes for the loss of in-person classroom instruction. As Witt’s historical evidence would predict, school closure policies have a disproportionate impact of poorer households. Yet Witt is silent on this outcome.

Finally, poorer households tend to have less space per resident. School and business closure policies, and stay-at-home policies, result in less affluent Americans spending more time in a more-compressed home environment than without those closure policies, and relative to the experience of more affluent American households. This increases the odds of intra-household transmission in these poorer households. Witt mentions crowded living conditions as a contributor to the spread of COVID. Yet he does not discuss the impact of stay-at-home requirements and of mandates that close school and businesses—policies that increase household crowding for the more at-risk poorer population. Again, the blindness of public health authorities to “unintended consequences” of pressing people to stay home is consistent with Witt’s historical evidence.

Witt misses a crucial, and continuing, part of the purpose of federalism: Federalism is not simply about efficiently accommodating different circumstances in different states, it is also about accommodating different policy preferences that citizens have in different states.

In each of these cases, a disproportionate share of the burden of these policies is placed on the less affluent segments of American society. One would think this is all probative evidence for Witt’s conclusion that “American legal responses to epidemics have targeted the poor, people at the border, and nonwhites.” Yet it is all ignored.

Federalism Isn’t Killing Us

Early on Witt notes that U.S. state governments hold police powers and the U.S. national government does not. And most pandemic policy responses arise under state police powers. This is bad, according to Witt:

Decentralization, however, meant wide legal variation and poor coordination. States, for example, adopted different standards for what counted as an essential business . . . . The U.S. response was decentralized not because localism made sense under the circumstances, but because America’s tenacious history of federalism channeled public health authority into state and local paths.

While policy variation between states is not the same thing as “poor coordination,” because the U.S. national government was delegated specific powers in order to solve collective action problems among the states, we should nonetheless consider Witt’s hypothesis, and ask whether the nature of modern pandemics is such that the U.S. national government should today hold all of the power over the public health policies.

Witt does note the efficiency rationale for allowing diverse state-level policy responses to the pandemic, but dismisses it:

Some applauded decentralization given that different infection rates seemed to warrant different responses, depending on the region. But of course nothing in a centralized response would have required a one-size-fits-all federal policy. Central decision makers routinely deliver aid to particular regions of the country.

Federalism is not necessary to achieve the efficiency of heterogeneous policies, according to Witt, because a centralized government can administer its policies in a decentralized fashion. But in reducing federalism to administrative decentralization, Witt misses a crucial, and continuing, part of the purpose of federalism: Federalism is not simply about efficiently accommodating different circumstances in different states, it is also about accommodating different policy preferences that citizens have in different states.

It is worthwhile to allow voters in Texas and Massachusetts to choose different policies not simply because the objective setting and circumstances of the two states differ, it’s also worthwhile because the voters in the two states have different policy preferences as well. To put it another way, even if all of the objective setting and circumstances of Texas and Massachusetts were identical, the two states would still adopt different laws and policies because voter preferences over policy differ between two states.

This aspect of federalism requires a level of interstate maturity and humble recognition that policy preferences can vary legitimately even if we don’t agree with the choice of others. To take a pedestrian analogy, it is one thing at the grocery store to look into someone else’s cart and think, “Ewww, I can’t believe they eat that stuff!” It would be quite another thing to deprive them of their culinary choices simply because they do not align with our own. This is not to say there should be no nationally uniform policies, nor that states face collective action problems in some policy domains that centralized policy actions can solve. But the essence of federalism is the recognition that there nonetheless is a broad set of questions on which citizens in different states can legitimately differ, and allowing the different states to accommodate those different preferences with different policies is a good thing for the nation.

To be sure, a centralized government could conceivably come up with a regime that allows for decentralized political decision making as well as decentralized administrative implementation. On the other hand, there already exists an institution that allows for exactly that result, and it’s called federalism. Of course, some voters in Massachusetts might prefer to dictate that Texas adopt only those policies preferred by the voters of Massachusetts voters, but federalism saves the states from those sorts of overweening impulses.

Also of note, yet contrary to oft-repeated conventional wisdom, the states’ draconian police powers over public health can in fact extend to interstate commerce and travel coming into a state, provided the state’s policy neither discriminates against interstate commerce nor burdens it unduly.

Witt provides historical insights and areas of concern in his short volume. Public health authority is a vast area of state police power and discretion. The vast powers are necessary on occasion to allow governments expeditiously to respond to serious and immediate health threats. At the same time, these vast powers are ripe for abuse. These abuses can be, and have often been, invidiously intended. But the abuses can also result from negligence and neglect. The exercise of this vast power can create harm unintentionally because those who exercise power are myopic, and do not recognize the disproportionate injury their policies can do to those whose lives and living conditions are more fragile than their own.