The extreme nature of the actions, including isolating the federal government, which was sitting in
Philadelphia at the time, was considered an appropriate response to the threat of yellow fever. The
terrifying nature of these early epidemics predisposed the courts to grant public health authorities a
free hand in their attempts to prevent the spread of disease, as the following quote shows:
Every state has acknowledged power to pass, and enforce quarantine, health, and inspection laws,
to prevent the introduction of disease, pestilence, or unwholesome provisions; such laws interfere
with no powers of Congress or treaty stipulations; they relate to internal police, and are subjects of
domestic regulation within each state, over which no authority can be exercised by any power
under the Constitution, save by requiring the consent of Congress to the imposition of duties on
exports and imports, and their payment into the treasury of the United States.[Holmes v Jennison,
39 US (14 Pet) 540, 616 (1840)]
The American colonies adopted the English statutory and common law that recognized the right of
the state to protect the health and safety of its citizens. This was called the police power, although
police forces as we know them were not organized until much later. When the Constitution was
written, public health power was left to the states:
It is a well-recognized principle that it is one of the first duties of a state to take all necessary steps
for the promotion and protection of the health and comfort of its inhabitants. The preservation of the
public health is universally conceded to be one of the duties devolving upon the state as a
sovereignty, and whatever reasonably tends to preserve the public health is a subject upon which
the legislature, within its police power, may take action.[In re Halko, 246 Cal 2d 553, 556 (1966).]
The scope of the police power is broad. Defining the limits of the police power, and the rights of
citizens to be protected from state actions taken pursuant to the police power, is the central legal
issue in public health law. Blackstone, the definitive source of historical common law discussed
death as the penalty for breaking quarantine.
