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 Eurpope 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. [Bolduan CF, Bolduan NW.
Public
Health and Hygiene: A Student’s Manual. 3rd, rev. ed. Philadelphia: W.B.
Saunders; 1942.]
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. [Application of Halko, 246 Cal.App.2d
553, 54 Cal.Rptr. 661 (Cal.App. 2 Dist. Nov 18, 1966)
]
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. [Smith v. Turner, 48 U.S. (7 How.)
283, 340–341 (1849)]
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. [Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 616 (1840)]
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 or on laws that were mere
shams for racial discrimination. 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.
