THE HISTORY OF PUBLIC HEALTH AUTHORITY
Sanitary laws were the first public health measures. An early record of these
laws is in Leviticus 11-16. The Romans developed the discipline of sanitary
engineering--building water works and sewers. The next advance in public health
was the quarantine of disease-carrying ships and their passengers, instituted
in response to the diseases brought back by the Crusaders. The word
quarantine derives from quadraginta, meaning "forty." It was
first used between 1377 and 1403 when Venice and the other chief maritime
cities of the Mediterranean adopted and enforced a forty-day detention for all
vessels entering their ports.[108]
The English statutory and common law recognized the right of the state to
quarantine and limit the movement of plague carriers. Blackstone observed that
disobeying quarantine orders merited severe punishments, including death. The
American colonies adopted the English laws on the control of diseases. When the
Constitution was written, public health power was left to the states, because
it was considered fundamental to the state's police power:
- 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.[109]
Soon after the Constitution was ratified, the states were forced to exercise
their police power to combat an epidemic of yellow fever that raged in New York
and Philadelphia. The flavor of that period was later captured in an argument
before the Supreme Court:
- For ten years prior, the yellow-fever had raged almost annually in the
city, and annual laws were passed to resist it. The wit of man was exhausted,
but in vain. Never did the pestilence rage more violently than in the summer of
1798. The State was in despair. The rising hopes of the metropolis began to
fade. The opinion was gaining ground, that the cause of this annual disease was
indigenous, and that all precautions against its importation were useless. But
the leading spirits of that day were unwilling to give up the city without a
final desperate effort. The havoc in the summer of 1798 is represented as
terrific. The whole country was roused. A cordon sanitaire was thrown around
the city. Governor Mifflin of Pennsylvania proclaimed a non-intercourse between
New York and Philadelphia.[110]
The extreme nature of the actions, including isolating the federal
government (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:
- 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.[111]
Few cases have challenged the constitutionality of state actions taken to
protect citizens from a communicable disease. The only successful attacks on
such exercises of state police power have been based on federal preemption of
state laws that restricted interstate commerce. Yet even interference with
interstate commerce is not always fatal to health regulations. If a state
regulation is substantially related to health and safety, the Supreme Court
will uphold it. This is true even if the regulation interferes with interstate
commerce, such as would result from a cordon sanitaria in which all travel is
forbidden. From vaccinations to quarantines, laws enacted to protect society
have been upheld even when they force individuals to sacrifice liberty and
privacy.
[108]Bolduan C; Bolduan N: Public Health
and Hygiene. 1941.
[109]In re Halko. 246 Cal 2d 553,
556, 54 Cal Rptr 661, 663 (1966).
[110]Smith v. Turner. 48 US (7 How)
283, 340-41 (1849).
[111]Holmes v. Jennison. 39 US (14
Pet) 540, 616 (1840).