Disease, Criminality, and State Power:


             Evolving Legal Rhetorics and Cultural Constructions


Thomas C. Shevory

Dept. of Politics

Ithaca College

Ithaca, NY 14850






Prepared for Presentation at the Foundations Workshop on Political Myth, Rhetoric, and Symbolism; Annual Meeting of the American Political Science Association, Washington, DC, August 30-Sept. 3, 2000



The following essay advances a tentative hypothesis about the relationship between disease epidemics and the social and political forces organized to control them.  I want to question the standard liberal narrative regarding the progressive nature of historical c with the liberal political theories of Locke and Hobbes, and with the scientific theories of Bacon, Galileo, and Newton, marks the advancement of rationality over forces of superstition that had dominated Europhange in the West.  According to this narrative, which takes a variety of forms, the modern period, associatedean society in the medieval period.  The emergence of science, the discovery of natural rights, and the eventual organization of democratic governments, vindicate the idea of the West as a civilizing force.  Control over various diseases represents an important part of this narrative, as the discoveries and practices that evolved out of Western medicine, such as the use of anesthesia, antibiotics and sophisticated surgical procedures, are presented as evidence of the value of scientific progress. 

            Law has an important place in this narrative.  In the liberal narrative of law, formalized legal rights and practices evolved from the common law practices of pre-modernity, and were eventually transformed (sometimes via the use of revolutionary violence) into systems for the protection of individual rights and the control of state power. For example, in the U.S. the rights that were stated, but originally unrealized, in the Declaration of Independence, eventually were turned into legal and social practices via the slow but steady interpretations and application of constitutional (and other) law.

             Against this narrative, I propose a counter-narrative which is both a specification and a revision of that stated above. An investigation of the social control of disease reveals not so much a steady expansion of individual rights, but rather the emergence of various systems of social control that exercise power in diverse ways.  In the pre-modern period, the social control of disease epidemics was primarily ritualistic. The defining feature of this period is attempts by European societies to control bubonic plague.  The period is marked by highly developed rituals that are sporadically practiced in social systems on the verge of collapse.  This set of practices eventually gives way to modern attempts to control disease through formal legal practices and application of medical discoveries attributed to positivist science.  These legalistic  attempts to control disease, while in certain respects more systematic than pre-modern rituals, also turn out to be fairly arbitrary in actual practice.  Here a legal discourse emerges that promises a balancing of individual rights and community interests, but delivers on the promise in only the most uncertain ways.  Lastly, in our current post-legal society, the illusion of rights protection remains, but it is increasingly difficult to sustain.  Here formal law still exists, but the legalistic gives way to the imagistic.  The nation-state teeters under the siege of informational and corporate forces beyond its control.  Media images become an increasingly important means for attempting to control an unruly citizenry.



            Disease and the Emergence of State Power


            Leprosy is the quintessential pre-modern disease.  Its mythical hold on the Western imagination is strong.[1]  It has a prominent place in various Biblical narratives. Moses is said to have separated the lepers from the unafflicted.  The Book of Leviticus provides for their exclusion. ("He shall live alone.  His dwelling shall be outside the camp" (13:46)). In the New Testament, Jesus's compassion is prominently signified in his willingness to minister to the lepers, that most excluded of all groups.  

            Contrary to the image that may exist within the popular imagination, lepers were not, with some notable exceptions,[2] treated harshly in the middle ages.  Ritualized practices existed for their exclusion from the societies of the healthy, but while these may have been widely invoked, systematic efforts at follow-up were difficult to organize, and thus they were sporadically administered.  

            The symbolic "death" of the leper often preceded his or her removal from the rest of society. The leper would be required to stand in a grave in a cemetery, where three spades of dirt were put upon the head, indicating death and burial.  The priest then said, "Be dead to the world, be reborn to God," as the leper asked to "be reborn on the final day" (Brody 1974, 66).  The infected person was them required to put on a costume, indicating the status of the diseased, and given a signal (a bell or horn) to warn healthy people of approach (67).  He or she was then led to a hut, generally on the edge of town, and given utensils, alms, and a cross.  The priest would ask those gathered not to injure the leper but to have "remembrance of the human condition and the formidable judgment of God" and "to provide liberally for his needs" (69).

              Later as the treatment of mentally and physically ill became more institutionalized, lepers were confined to asylums, where they were required to take monastic views of poverty. Since there were no remedies, the inmates were expected to wait there until death.  No drinking, gambling, chess, or sex with other inmates was allowed.  In French law, the leper was denied the legal right to own property (81).

            The complex of laws regarding the treatment of the leper in medieval European society were, however, enforced in only the most lax ways.  As Brody puts it, "although lepers were the victims of constant persecution, abuse and vilification, in general their mobility was not hampered and they were not effectively isolated from society.  A mass of evidence suggests that in practice the sequestration of lepers wa not rigidly enforced" (93). Lepers were often allowed to leave the houses where they were confined, and legal processes to sequester lepers were complicated and difficult to implement (93-95).  This is partly because the leper was seen in contradictory terms, on the one hand as a sinner deserving of punishment and on the other as one "given special grace by God" (96-97). It was also because the pre-modern European legal systems were not pervasive or consistent in the application of many legal rules.  The medieval laxity toward leprosy was due also partly to the nature of the disease.  Leprosy acted slowly, and it was sometimes difficult to distinguish the infected from the healthy. And, while an endemic disease that sometimes appeared in outbreaks, it did not ravage entire communities as plague would eventually do.  The existence of ritual, no doubt, appeased fears regarding the potential spread of the disease and lessened the necessity of enforcing legal rules. 

            Plague was different.  Its impact on European society can probably not be overstated.  It created economic and social catastrophes on a level that had previously not been known. When an outbreak occurred in a given local, 70 to 80 percent of its population could die within four to seven days (Cipola 1992, 3). Population loss led to famine, as there were not enough people to plant crops and bring in the harvest.  Cases of cannibalism were not unknown.  Government and court systems collapsed on the weight of the pandemic.  When plague turned up in a town, those with means, that is the administrative leadership fled, so that "the administration of justice [became] impossible and no on [could] obtain his rights" (Brody, 167). In Italy, "neither 'order nor justice and no one to administer justice'" (165).  The entire social ordered unraveled in numerous places.  The feared Monatti, or gravediggers, were notorious for their acts of violation of female corpses (168).

            Plague had a tremendously disruptive impact on the worldview of medieval Christians.  Ritualistic practice of sequestration organized around leprosy were unequipped for dealing with it. Believers sometimes concluded that divinity may have been overthrown by wickedness.  God had deserted the world and value had shifted from heaven to hell. The Luciferians, a sect of mendicants, taught that God had usurped heaven and that he would be someday be replace by its rightful ruler, Lucifer, who they worshipped (Nohl 1924, 161-163). 

            The breakdown of social order, religious beliefs and ritualistic practices, led to a search for scapegoats. There was "an incapacity to believe that so uncanny a disease as the plague could be attributable to natural causes" which led "the fateful misconception of [its] artificial production" (Nohl 171).  The belief that humans acted in ways to deliberately spread plague was not without some foundation in fact.  There were those that deliberately attempted to pass the pestilence on to others.  This was sometimes done so that infectants would not have to suffer alone.  Sometimes it was driven by the belief that one could rid oneself of his or her infection by passing it along to someone else (Nohl 171).  Sometimes plague was passed out of the desire for revenge or out of simple spite.  Nohl reports the case of a man who fastened a piece of plaster, covered with pus, onto the peephole of his neighbor.  "When he thrust his head out to see who was there it stuck to his beard without his noticing it," until his wife did see it and asked about it, at which point "both were seized with terror" (171).  Then there was the case of the scholar Hemkengripper, who, upon learning that he had been infected by a contaminated manuscript, sent by his great adversary Zahnebrecker, offered to meet for a reconciliation.  Upon meeting, they embraced, Hemkengripper kissed Zahnebrecker, and both died within several hours (171-172).

            Beyond the cases of the few who deliberately infected their rivals and enemies, there was a belief that collections of malcontents existed who were using secret and magical powders and poisons to infect whole villages or districts.  Many of those unfortunate enough to be accused of such deeds were tortured with the rack and other devices until they confessed, at which point they were usually either hanged or burned, or both.  The belief in this so-called "artificial" generation was fairly widespread.  Rumors abounded throughout Europe that bands of malcontents traveled about smearing windows, walls, doors and church pews with pus and poisons in order to generate outbreaks.  While little evidence exists regarding the veracity of such beliefs,[3] they sustained a deep rooted paranoia that turned neighbors against neighbors and family members against one another (175).

            After the Reformation, "artificial" generation of plague was sometimes blamed on Lutherans, but more often it was attributed to Jews.  Traditional Jewish sanitary practices encouraged the use of running streams rather than the often contaminated public wells that were often a primary source for spreading various kinds of diseases.  The belief arose that Jews were avoiding the wells because they had poisoned them (Hudson 1983, 44). Rumors spread that Jews were attempting to poison the wells of Christians with plague, and thus their destruction was justified as self-defense.  In 1348, a confession was extracted from a Jewish physician who had been tortured on the rack that he had been spreading plague.  This is believed to have begun a wave of attacks against Jews that persisted for several years (45).  The results were truly horrific.

            In Strasbourg the town's entire Jewish population was marched to the cemetery and thrown into a massive flaming pit that became their common grave, and the town's council declared that no Jews would be allowed to live there for two hundred years (184).  At Muehlhausen "all of the Jews were slaughtered, at Nordhausen at least part of them."  At Basle, the town council demanded a burning of the town's Jews and to forbid their settling there for two hundred years.  "At Esslingen the whole Jewish congregation were burnt in their synagogue."  "At Nuremberg, all the Jews were murdered, as they were at Egar, Gotha, Eisenach, Dennerstaedt, Kreuzburg, Arnstadt, Ilmen, Nebra, Wiehe, and Frankenhausen."  The list goes on.  The same treatments were meted out in Spain and Italy (184-185).

            Yet, while plague reinforced superstitious beliefs and practices, anti-Semitism, and general paranoia, it also undermined the authority of the Catholic Church and could be considered as one of the primary forces impelling Europeans into modernity.   Egon Friedell has asserted that "the year of the conception of modern man was the year 1348, the year of the Black Death" (quoted in Campbell 1931, 4), and A.L. Maycock suggested that "the year 1348 marks the nearest approach to a definite break in the continuity of history that has ever occurred" (5).  The authority of the church was undermined, because it responded poorly to the needs of plague victims, and provided them with little in the way of either reassurance or explanation.  Not only were the clergy unable to help, but the mere fact they too were infected in large numbers indicated a mortal vulnerability that undermined ecclesiastical authority.  Moreover, the death of many members of the church hierarchy left a void in its leadership.  For example,  94 of 450 officials of the Avignon pontifical court died from 1348-1349, while 207 of 375 bishops also fell victim to the epidemic. This depletion in the church's ranks resulted in their being filled by younger, less experienced, and less authoritative priests, affecting the organizational structure of the church as a whole (Hudson 40-41). At the same time, the rough beginnings of modern medical science can be found in attempts to control plague, as physicians and others tried desperately to find various ways to combat the spread and effects of the disease.  For example, intensive study of the plague led to seemingly reasonable, but ultimately false conclusions, such as that contagion was spread via eyesight, other more sustainable judgments were made regarding, for example, the idea of immunity and the concept of a "carrier" (121).

            The disciplining of plague spreaders was usually not done through the application of formal legal rules.  In fact, the absence of rules and ritualistic practices may have encouraged the arbitrary singling out of various individuals and groups.  But while the breakdown of social order created opportunities for violence, the also allowed resistance to the medieval system of hierarchical order.  When in England, for example, so many died that the fields were not being tilled, political authorities began to concede demands for land redistribution.  Faced with various waves of plague over several centuries, this help to undercut the stability of the feudal manorial systems.  The pleasant revolt of 1381 in England, then, can be at least partially attributed to plague that had arrived three decades earlier.  The plague had resulted in peasants "tast[ing] a freedom never savored before" (Hudson 40).

            Plague also encouraged the introduction of public hygiene practices, designed to protect the community from the recognized contagiousness of the disease.  The first measures that attempted to do this with some regularity, were instituted in Italian cities in the 1340s.  These required among other things, that all meetings dealing with plague issues be open to as to prevent corruption, that rules be drawn for dealing with the disposal of bodies, and that those infected be sequestered from the rest of society (112).  In Florence, eight of the most respected citizens were chosen exercise control over the matters related to plague.  This office can be considered as the first European department of public health (113).[4] 

            Embargoes were set up in various cities beginning in 1348.  In 1377 the first actual quarantine measures were issues in Ragusa, although, according to McNeil, the "idea of quarantine had been present as early as 1346," drawn from biblical stories regarding the separation of lepers.  Plague sufferers were initially treated as "temporary lepers" (McNeil 1977, 150-151).  Quarantine rules required that persons seeking to enter a city from areas of known infection, be sequestered outside its walls for a period of a month.  In 1383, Marseilles, perhaps the most ravaged French city, established a forty-day detention period.  It is from this practice that the term itself is derived.  Violations of quarantine rules resulted in fines (121).

            The development of formal quarantine rules, however, did not mean that they were either followed or enforced with any degree of regularity.  Quarantines were difficult and very expensive to enforce.  Often they were ignored or allowed to lapse as soon as the immediate threat of outbreak seemed to have subsided.  Moreover,  sanctions for violations of quarantines were relatively mild, generally fines and almost never imprisonment.   The laxity of enforcement is one reason that the actual value of quarantine measures is still the subject of intensive historical debate.  It is difficult to know whether quarantines were successful in staving off outbreaks, if the were ineffectively administered.  Moreover, it is difficult to prove a negative.  Does the absence of an outbreak in a given area indicate the effectiveness of quarantine measures or the intervention of an indefinite number of other social and medical circumstances?

            It could be argued then that the late medieval and early modern periods were marked by the breakdown of ritualistic mechanisms for dealing with disease and their slow replacement with more formalistic and scientific measures.  But the process was an uncertain one, with the emergence of formal, bureaucratic mechanisms of control, still so open as to give wide latitude for resistance against them.




The Search for Balance:

Formal Assertion of State Power over Disease


            The "contagion"/"anti-contagion" controversy erupted early in the nineteenth century, not long before Louis Paster's discoveries led to the dominance of "germism" as the explanation for most disease transmission.  Anti-contagionists sought environmental explanations for the presence and transference of diseases.  According to anti-contagionist Charles MacClean, for example, plague resulted from certain atmospheric conditions, and an "inequapable" atmospheric state.  Thus, according to this theory,  people contracted plague or other diseases independently of one another, connected only in the sense that they were subjected to the same external elements.  The controversy is important because it became fully implicated in arguments regarding the value of quarantine.

            By the 18th century, practices of quarantine were well-established in both the U.S. and Europe.  In the American colonies, quarantines were first established in the 17th century.  Massachusetts passed a comprehensive quarantine law in 1699 (Duffy 1990, 24). Some of the earliest regulations were developed in response to yellow fever. A number of quarantine hospitals were built throughout the colonies in the middle of the 17th century. (Marks and Beatty 1973, 235-6, Duffy 1953, 103). In the eighteenth century, the scourge most feared was smallpox. During the smallpox epidemic of 1730-31 Massachusetts passed an act which required that anyone infected hang a red cloth in front of the place where they were housed.  In 1742 this rule was extended to cover all contagious diseases, and eventually the state was given the power to quarantine the sick in specific hospitals (102). 

            Sometimes quarantines were enacted into local ordinances and thus made more permanent.  In Virginia, for example, the Colonel of Northampton County proclaimed that no person would be allowed to leave their home until thirty days after they had been infected by small-pox "least the sd. disease should spreade by infection like the plague of leprosy," and those that ignored the rule and "beast like" acted contrary to it "may expect to be severely punished according to the Statute of King James" (quoted in Duffy 1953, 102).  Shipping was a frequent quarantine target, and boats were routinely isolated from ten to twenty days before allowed entry into the port towns of Massachusetts, Connecticut, and New Hampshire.  Quarantines were mostly considered a local matter, but in 1796, Congress passed the first national quarantine law in response of a yellow fever epidemic.  It gave the President the power to aid localities in quarantine efforts, and thereafter the federal government assumed a role in enforcing maritime quarantines (Parmet 1985, 57-58).

            Quarantines, were often unpopular, because they were considered to be arbitrary, inconvenient and ineffective.  While in some places, such as Boston,[5] they were applied in a systematic enough fashion to have had some effect on the spread of smallpox, in general "their application in the colonies was so irregular, tentative, and inconsistent that the benefit to the public health must have been negligible" (Cassedy 1991, 13).  Much of the resistance to quarantine measures came from commercial interests, who had much to lose from the restrictions on commercial activity represented by the establishment of quarantine.  Business interests not only resisted quarantines but often sought to deny the presence of disease or epidemic in their local communities.  As Cassedy notes, "Since trade was easily discouraged by the presence of communicable disease, business interests tended to try to suppress all news about epidemics of smallpox, yellow fever, or cholera in their respective communities, and to resist the imposition of quarantines" (59).  Public health departments were reluctant to challenge powerful local business interests, which were more often interested in boosterism more than in efforts toward sanitation and disease control.

            Anti-contagionism provided scientific justification for terminating quarantines.  Contagionism and quarantine were linked to superstition and the ecclesiastical authority of the Catholic Church. MacClean, for example,  denounced quarantine as resting upon "'a purely imaginary foundation,'" and a "popish strategem, bolstered by absolutism in church and state, it was everywhere an instrument of tyranny" (Mullett 1956, 336-337).   "The whole issue of quarantine," in fact, "hinged on contagionism" (366).

            Contagionists fought back, and some, such as London physician Augustus Granville attempted to establish patterns linking the movements of goods and people with the emergence of disease outbreaks in an attempt to show that quarantine had been successful in excluding plague from certain areas in England (Mullett, 338).  But the debate included social forces that extended beyond the scientific and medical academies.  Considerable pressure was being brought by London business interests to loosen quarantine regulations which were seen as an impediment to trade.  While quarantines had "aroused resentment and even boycott" throughout European history, anticontangionism gave anti-quarantine forces additional ammunition. (Mullett, 367)  The resentments against quarantine came primarily, although not exclusively, from the commercial class.  As its power and prestige grew in the nineteenth century, scientific analysis came to accommodate its very practical interests.  The debate regarding contagionism, then, was never a strictly "scientific" debate, but rather hinged upon its connection to quarantine.              As Hudson notes, "anti-contangionist ranks were joined by a rapidly expanding group of merchants and industrialists for whom quarantine meant loss of money, coupled with what was perceived as stifling bureaucratic domination" (Hudson, 145).  Thus, it was a coalition of merchants, industrialists and liberal (anti-statist) physicians who pressured the French Academy of Medicine in 1828 to repeal the quarantine law of 1822.[6]

             Under pressure from free trade ideologists and anti-contagionists, the British parliament began to unravel its web of quarantine regulations in the first half of the nineteenth century (McNeil 235). Baltimore significantly weakened its quarantine laws in 1808.  Benjamin Rush was a vocal and articulate defender of anti-contagionism, who helped to influence the president of Philadelphia's Board of Health to city's undercut enforcement of local quarantine regulations.[7]   The city government of Boston abolished that city's Board of Health during the same period in order to do the same (Marks and Beatty, 236).

            The appearance of Pasteur and the advent of "germism (Helman 1991)," in the middle of the nineteenth century, helped generate a shift to a more individualistic and medicalized view of disease transmission.  Anti-contagionism was almost entirely discredited.  This shift had important consequences.  For one thing, it removed the onus of responsibility for sickness away from the soul or character of the infected.  Such a construction of disease might, according to Rosenberg, "have offered more comfort than the traditional option of seeing oneself as a reprehensible and culpable actor" (1992, 269).  The shift to germs as the explanation for much sickness reinforced the growing secularism of the 19th century, as it emphasized the individual nature of disease infection and narrowed causal explanations of it.  Germism did not, however, remove the "environment" as an important factor for causing disease.  The "vapors" and "effluvia" that were central to the explanations of anti-contagionists, were replaced with a discourse that incorporated elements of germism into environmental explanations. Thus, the concept of "cleanliness" and "sanitation" began to mark the language of these new environmentalists.  It is this language that we associate with the emergence of the modern public movement.  During this period, the formal recognition of legal rights in law related to quarantine began to emerge in greater detail. 

            "Germism" helped to reinforce the idea that quarantines were useful, because it could point to specific agents of transmission, which, if isolated, could presumably be curtailed.   When Italian city-states led the way in Europe by establishing administrative board to oversee quarantine rules in the 16th century, their jurisdiction extended beyond simply cordoning off or controlling various spaces.  The boards engaged in examination of food, water, cemeteries, activities of beggars and prostitutes (Hudson 1983, 170).  This recognition of connections between the  medical, the social, and the political helped to provide the foundations of what would emerge as first the "social medicine" and then the "public health" movements (Rosen 1974).

            The concept of what came to be called "social medicine" can be traced to Germany, to the writings of Rudolph Virchow.  It was in a report to the French government on a typhus epidemic in Upper Silesia that Virchow first associated the spread of the disease to the impoverished and miserable conditions under which the population had lived.  He began to believe that medical treatments per se were of little usefulness for attempting to control such outbreaks.  Political action was the mechanism for making medical progress. "My medical creed merges with my political and social creed" (quoted in Rosen, 62) After participating in the March Days in Berlin, which had been inspired by the uprising and establishment of the commune in Paris earlier that same year, Virchow would write,  "Medicine is a social science, and politics nothing but medicine on a grand scale" (quoted in Rosen, 62).

            While Virchow was an early exponent of social medicine, it was not, of course, the product of only one persons's thinking.  Rather it was a reaction to the social problems generated by the industrial revolution which "led various investigators to study the influence of such factors as poverty and occupation on the state of health" (Rosen, 62-63).  Advocates of social medicine collapsed distinctions between social and medical sciences, and concluded that to improve a community or nation's health, one had to understand the nature of the social problems that it faced.  Thus, there was intense interest in social and medical statistics that was an important aspect for the organization of social medicine.  Virchow, for example, "conceived the scope of public health as broadly as possible, indicating that one of its major functions was to study the conditions under which various groups lived, and to determine the effects of these conditions on their health.  On the basis of this knowledge it would then be possible to take appropriate action" (65).

            Just as the scope of explanation and investigation of causes and conditions was expanded by social medicine, so did the potential boundaries of medical practice expand as well.  For its advocates the practice of medicine "must be social as well as medical" (67).   Social medicine thus provided for an expanded role for the government in two ways.  For one thing,  government would have an obligation to intervene to attempt to change those conditions--poverty, poor hygiene, dangerous working conditions-- that contributed to a decline in the nation's health (67-68).  Physicians and other advocates of public health became involved with the movement to improve the conditions of the industrial worker.  This included regulation of hours worked as well as prohibition on child labor, requiring standards for ventilating the workplace, and restrictions on the use of toxic chemicals (69-70).  At the same, however, the state would have the right and duty to intervene to curtail the liberty of individuals in cases of disease transmission and mental illness (67-68). In other words, the evolving public health movement justified an expansion of the state's obligation to protect the diseased and infirmed as well as to control them.

            While the Revolutions of 1848 ultimately failed, public health movements were also occurring in England. C. Turner Thackrah's 1931 treatise,  The Effects of Arts, Trades, and Professions on Health and Longevity had an important impact on factory reform movements.  Henry W. Rumsey outlined a public health program where medical personnel would act as "sanitary advisers" to the poor, visiting them in their homes, describing the effects of alcohol, discussing the importance of cleanliness, of diet, of the education and raising of children (78). The practice of public health became "a matter of nothing less than the suppression of prejudice, error and ignorance, the encouragement of salutary labor, the development of a sense of dignity on the one hand and the conquest of cupidity, and injustice on the other" (85).

            The European social health movement had important impacts on the U.S. public health movement.  In 1920, Yale Professor Edward Amory Winslow defined public health as "the science and art of preventing disease, prolonging life, and promoting physical health and efficiency through organized community efforts for the sanitation of the environment, the control of community infections, the education of the individual in principles of personal hygiene, the organization of medical and nursing service for the early diagnosis and preventative treatment of disease, and the development of the social machinery which will ensure to every individual in the community a standard of living adequate for the maintenance of health" (quoted in Starr 1982, 180).  A broader mandate for medical practice is difficult to imagine.

            The progressive impulse to use the powers of the state to generate social health must be seen as a positive historical development.  In both Europe in the U.S. it was closely connected to reform movements advocating better working conditions, improved housing, and the provision of medical services to the poor.  The social medicine movement in Germany influenced Bismarck's decision to provide a system of social insurance.

            Yet this expansive vision of what constituted human health must also be evaluated with the broader ideological currents of the late-nineteenth and early twentieth centuries.  Notions of sanitation, cleanliness, and purity were deeply imbedded in emerging doctrines of public health.  Public health officials and social reformers felt compelled to clean the detritus from the body politic.  This meant going into the factories and slums to take care of the injured and diseased.  But it also meant keeping the social body free from elements that undermined its purity.  The late nineteenth century saw the rise of public health movements as well as the emergence of genetic science and evolutionary theory.  The progressive impulse to improve social welfare connected with the reactionary impulse to discipline or eliminate those elements seen as "infecting" the social organism.  Thus, the expansion of state power associated with public health movements overlapped with and oftentimes reinforced racism, anti-immigrationism, and eugenics movements.

            Germism competed with and sometimes reinforced  evolutionary theory, which was intimately connected to developing notions of what constituted "race."  As the concept of public health was  expanding, connections were made between disease transmission, genetic makeup, and racial classification.[8] Symbolic and "scientific" connections were established between notions of health and favored "body types."  The strong or healthy body was indicated by a large chest, clear eyes, an upright demeanor.  This was the 19th century's representation of the Greek athlete, and became the 20th century Nazi construction of the Aryan athlete.  On the other hand, some diseases represented both ugliness and genetic weakness. Tuberculosis was often considered as a manifestation of a weak constitution and physically marked by a "weak" body type: long neck, slender body, and abnormally red cheeks.  Weakness in body type was in turn connected to being Jewish.  The "ugly" body type, "always associated with racial types such as the Jews," could be introduced into the strong body types of the Aryan race.  Intermarriage between Jews and gentiles, so many early geneticists, English, American, and German reasoned, led to a progressive degeneration of the race, and a greater predisposition to tuberculosis (Gilman, 64-65).[9]

            Disease marked a threat, a threat not only to the health of individual but to the collective beauty, health and happiness of the nation as a whole.  The ill "belong to a separate world, a dangerous world that is always attempting to colonize the world of the healthy" (66). The reverse is also true:  The healthy citizen, the genetically gifted, the white, the Aryan, the Northern European is the embodiment of good citizenship.  "The beautiful citizen is the good citizen; the healthy citizen is the good citizen.  And citizenship in this context is a reflex of the body. The good citizen cannot be ugly and therefore cannot be infected by, or infect, members of society with dangerous illnesses, illnesses that would be marked on their physiognomies" (66).

            These diverse and sometimes contradictory attitudes toward the health of the body politic were can be found, in various guises, in the U.S. Progressive Reform movement.  Much energy within the movement went toward reform of labor laws to, among other things, shorten the work week and end practices of child labor, expand health services for the poor, extend of the franchise to women, legally prohibit use of alcohol, reform the drug laws.  At the same time, however, many Progressives were hostile to immigrants, favored various kinds of eugenics practices, and developed programs for the internment of prostitutes (Brandt 1985, 92-94).  Theodore Roosevelt, concerned about rising numbers of immigrants with large families, exhorted the middle classes to have children so as not to commit "race suicide" (Kevles 1985, 74).  There was, in fact, much cross-over between progressive reformers and those active in the eugenics movement.   Alliances between progressive elements and active racists were responsible for passing numerous anti-immigration and sterilization laws in the first two decades of the twentieth century.  Nine thousand of the "genetically unfit" were sterilized for eugenics purposes during the teens and twenties (106).[10]  Beauchamp may be correct that "many of the most progressive reforms were critics of mass quarantines" (emphasis added) (1988, 205-206), but many others supported quarantines and eugenics measures that were designed to purge the body politic of its least desired elements.[11] 


Police Powers, Quarantine, and Equal Protection


            Legal debates about how to balance public good and private rights in relation to quarantine were encompassed within the broader question of what constituted the state's "police powers". Police powers vested the state's authority to "promote order, safety, security, health, morals and general welfare within constitutional limits" (Marshall v. Kansas City, Mo (1887).[12]  The quintessential nineteenth century police powers case was Mugler v. Kansas (1887). Here several defendants were charged with brewing beer in contravention of a 1880 Kansas statue.  The owners of the brewery claimed that their property had been taken by the state without just compensation.  Justice Harlan, however, wrote a majority decision in which he offered broad authority to the state to establish regulations regarding the health and safety of the citizenry.  Where the public interest, as represented through the police powers, was determined to be present, the private interests of business owners would be required to retreat. 

            The reach of police powers represented on of the great constitutional conflicts of the late nineteenth and early twentieth centuries.  Progressives and other reforms worked to pass health and safety laws often only to have them tossed out as unconstitutional.  While Mugler seem to give a fairly broad mandate to states to pass legislation that could be justified as within the police powers, later Supreme Courts, were not averse to striking down state laws which limited business's powers to control the workplace (such as Lochner v. New York (1904), in which the court repudiated New York's attempt to limit the workday of bakers to ten hours).

            Quarantine cases then brought together a complex array of ideologies and interests.  The regulation and control of contagious diseases represented the epitome of state authority to control private behavior under the police powers.  The state's power to order quarantines was not questioned.  Justice John Marshall had given it constitutional legitimacy in Gibbons v. Ogden. But how intrusive the state could be in accomplishing those ends was not entirely settled.

             Quarantines have an odd legal status.  On the one hand, they are civil commitments.  The quarantining of a house, a neighborhood, or a ship is not the result of a finding of mens rea or criminal intent.  Rather is can be compared to a finding of mental incompetence, where confinement to a mental institution is made to protect the person confined as well as others than he or she may come into contact with.  A person is being confined for a condition for which they are generally not legally responsible.  Yet the comparison goes only so far, because mental incompetency is not contagious, and while immediacy may sometimes be a necessity, time often exists for some kind of hearing before the confinement actually occurs.  In quarantine cases, an immediate confinement is more often seen as a necessity.

            In numerous early quarantine cases, police powers were  interpreted broadly, and the declaration of a public health emergency was considered as sufficient to give public health officers broad latitude to confine those deemed infected.  Haverty v. Bass, and 1876 Maine case is representative of an expansive reading of police powers.  Here a police officer and city physician took the child of a Bangor woman from here arms and brought it to a city hospital against her expressed wishes. The child was believed to be infected with small pox (1).  The city officers acted after a brief examination of the child and did not obtain a warrant to do so. The officers acted under the authority of a state public health statute that allowed for the sick to be quarantined against their wishes.  However it also provided the a warrant be issued by two judges "if need be."  While the most commonsensical reading of the warrant provision seemed to be that one would be issued if there was resistance (as the legal basis for involuntary confinement), the majority on the Main appellate court read it to be optional and its necessity wholly determined by the public health officers.  Municipal officers, the court stated, "can remove a sick person without the aid of a warrant, or they can use that instrumentality to enforce obedience to their commands, if a resort to such means of assistance becomes necessary.  We do not perceive how it could be of importance to the sick man, whether a warrant was obtained or not.  It would be the merest form in the world, as far as he is concerned" (3).  The court did not answer the question of why public health officers would seek a warrant if they did not need one to use force.  Furthermore, the ruling implied that a "sick person" would know that they were sick and that they would be grateful for the confinement.  Local officers, in other words, would have complete discretion as to who would be quarantined and how, generally without oversight from a judge or other officer of the court.

            The principle that the court operated under was that in cases of a disease outbreak, individuals right would virtually disappear in the face of community interests.  As the court stated, "The maxim salus populi suprema lex is the law of all courts and countries.  The individual right sinks in the necessity to provide for the public good."  If anything, the court noted, "Experience," they stated, "probably shows that communities and individuals are not promptly enough aroused to the dangers that beset them in such emergencies" (5).  Moreover, if an injury were to be inflicted, an individual would have recourse through a lawsuit against that official, or a habeas corpus proceeding.  Formal rights of redress would, then, exist only after the fact, and would no doubt face tremendous obstacles to their success.

            In the 1921 Alabama case of Dowling v. Harden, a state court attempted to distinguish between the notion of quarantine and the idea of criminality. Gladis Harden was arrested on a vagrancy charge.  While in jail, it was determined that she was sick with an infectious disease covered by the state's quarantine law.  Harden made her bond and was released from jail, but then quarantined to a health facility.  She brought a habeas corpus suit against the public health officer that ordered her confinement, Dr. J.D. Dowling, for her release.  The case recognized broad authority of public officials to issue quarantine orders against individuals reasonably suspected of being contagious, but it also stated that "persons affected with disease are not for that reason criminals, and jails and penitentiaries are not made or designated for their detention" (64).  Harden could be confined, but she had to be confined to a hospital and could not be kept in a jail.

             Mary Crayton lived next door to a house occupied by a person who had contracted smallpox.  She was confined to her own home for a period of about two weeks in the summer of 1911.  Upon release, she sued Syracuse's city health inspector on the grounds that she had been injured by a quarantine order that the city had no right to impose, because it was never demonstrated that she had actually been exposed to the disease.  A trial court found validity in Crayton's claim, but the highest state's highest court sided with the defendants in the case of Crayton v. Larabee (1911).  The decision gave broad authority to the public officials for making determinations about what particular houses could be quarantined in cases of suspected infections.  The only limit upon the health officials actions was that "Conditions must exist which render his action, within reason and fair apprehension, his action essential for the preservation of the health of the public" (18). In making the decision, the court asked for a flexible interpretation of the police powers in general, and stated that in this particular case public health officials acted "lawfully" to protecting "those exercising it against the consequent damages to persons or property" (19).

            One of the most significant legal cases to defend the powers of the state to implement quarantines and control over individuals was Barmore v. Robertson (1922). When a number of persons who had roomed at the boarding house owned by Jennie Barmore had become infected with typhus.  Barmore submitted to an examination which determined that she was a typhoid carrier.  The Chicago department health subsequently put both Barmore and her rooming house under quarantine.  The city placed a placard in front of the house warning that a typhoid carrier resided there (425). Under the quarantine order Barmore was ordered to remain at home, forbidden to accept boarders into the house, and not allowed to cook food for any person other than her husband (425).  While Barmore had not herself apparently ever shown symptoms of the disease, an examination of her stool indicated the presence of typhoid bacteria  (425).

            Drawing upon the then "new science" of public health for justification, the city's officials argued that the mere presence of germs was enough to warrant the deprivation of individual human rights.  The court noted, in fact, that "Among all the objects sought to be secured by governmental laws none is more important than the preservation of public health."  The rules established by the city's board of health not only authorized quarantine measures but criminal sanctions against those that might violated them.  These sanctions were relatively mild, a maximum or $200 fine and imprisonment for up to six months (430).  Moreover, the Illinois State Supreme Court did impose limits on such rules, noting that court's could intervene against them if they were "arbitrary and "unreasonable."  And although they would not be deemed so if "an epidemic actually exists" (432), they could not "promulgate and enforce rules which merely have a tendency to prevent the spread of contagious and infections diseases, which are not founded on the existing condition or upon a well-founded belief that a condition is threatened which will endanger the public health."  In other words, "the health authorities cannot interfere with the liberties of a citizen until the emergency actually exists (433).

            Precedent for Barmore had been laid a decade earlier in the celebrate case of Mary Mallon, more popularly know as "typhoid Mary."  Mary was an Irish immigrant and a cook.  She was  "first health carrier of typhoid to be carefully traced in North America" (Leavitt 1996, 7).  She was the first such carrier to be confined by a quarantine order.  Mary was accused of being responsible for three deaths and forty-four other cases of typhoid.  She aluded her first confinement order, returned to society and to being a cook as well.  But she was never charged with a criminal violation.  Rather she was civilly committed under quarantine, and served a total of twenty-seven years in confinement.  Mary was one of what was estimated at the time to be 10,000 typhoid carriers.  And while attempts were made to register them, very few were actually held for long periods of time.  According to Leavitt, "The fact that Mary Mallon was a woman, a domestic servant, single, and Irish-born significantly influenced how health officials and the middle-class public thought about what should be done with her."  Also important was the perception that she was a "masculine" woman (97, 107).

            On the 1st of March 1899, the Governor of Texas, Joseph D. Sayers, acting under authority of a provision of the state's quarantine laws, established a quarantine on the Gulf Coast  and Rio Grande against any place that was infected with yellow fever.  On the 31st of August of that same year, a case of yellow fever was officially declared to exist in the City of New Orleans. Subsequently other cases were reported as well.  As a result of this, the Governor placed an embargo against the City, preventing an common goods, people, or even mails from entering the state via train.  Armed guards were posted at various ports and train stations.  Persons would be allowed to enter the after ten days detention, but an absolute and indefinite prohibition against interstate commerce was also to be enforced. The effect (and perhaps the intent) of the regulation was to "take away the trade of the merchants and business men of the city of New Orleans, and to transfer that trade to rival business cities in the State of Texas" (3-6).[13]

            In the Supreme Court case of Louisiana v. Texas, conflicts between public health, state and local police powers, were joined against issues of commerce and free trade.  The state of Louisiana argued that Texas was simply using the appearance of yellow fever as a pretext to justify shutting down trade from its most significant state competitor.  The merchants and business interests of Texas, in other words, welcomed the quarantine as a means to protect and increase their competitive trade advantages.  As the representatives for New Orleans put it, the effect of the embargo was "impoverish [the city's] citizens, reduce the value of her taxable property, diminish her revenues, retard immigration, reduce the value of her public lands, and deprive her citizens of their rights and privileges as citizens of the United States" (12).

            The question was not whether Texas had the authority to pass quarantine laws, but whether an absolute prohibition was warranted under the circumstances that were apparently present.  The Supreme Court gave little heed to Louisiana's argument.  Justice Fuller dismissed the complaint on the grounds that no case or controversy was present the two states, and thus there was no grounds for federal court intervention.  For such a controversy to exist "something more must be put forward than that the citizens of one State are injured by the maladministration of the laws of another" (40). Such Fuller argued (almost inexplicably) was not the case here. 

            States and localities had used quarantine in targeted fashions against immigrant groups since before the revolution. In 18th century Connecticut, the spread of disease became associated with the immigration of the Scotch and Germans, and so that laws were passed specifically quarantining immigrants (Duffy 1953, 103).  Such practices did become more commonplace, however, in the latter nineteenth century as new waves of immigrants entered the country.  Federal courts generated a rather mixed set of rulings to these kinds of cases.

                        In 1893, a federal circuit court found, in the case of Minneapolis  v. Milner, that Michigan's detention of Scandinavian immigrants across from the Sault St. Marie border entry was a legitimate use of police powers.  The quarantine rules were not specifically aimed at Scandinavians, but given the predominance of their presence, the rules could be construed as having a discriminatory impact. 

            In Compaignie Francaise v. Louisiana State Board of Health (1900) sided again with the state, this time a state board of health, against a class of affected person.  The Louisiana Board of Health passed a Resolution on September 29, 1898, that allowed any city or parish in the state to declare a quarantine.  As a result of this resolution, a steamship, the S.S. Britannia, which had sailed from Italy and France, was detained at the New Orleans quarantine site.  On board the ship were 408 passengers, some of whom were U.S. citizens, but the majority of whom were emigrants, mostly from Italy, who were seeking to settle in the U.S.  While it was agreed by the plaintiffs in the case (the company that owned the steamship), that none of the ship's passengers were sick, the measure was taken, so it was claimed, to protect both the passengers and the residents of the city from possible contagion.  "The object," so it was argued by the city, "was to keep down, as far as possible, the number of persons to be brought within danger of contagion or infection, and by means of this reduction  to accomplish the subsidence and suppression of the disease and the spread of the same" (380).  What was also clear, however, was that New Orleans had, for a number of years, become an entry point from Italian immigrants, and that excluding healthy immigrants from a health population was, on the face, of it somewhat suspicious (385).

            The state claimed broad authority to quarantine under its police powers.  "How many cases of such [infectious disease] are essential to cause a place to be considered as infected with them is left to the determination of the Board of Health" (392). The Board thus claimed totally authority to make decisions about the necessity and scope of the quarantine.  The ship's company, representing the passengers, argued violations of the commerce clause, the Fourteenth Amendment due process clause, and various treaty obligations.  The Supreme Court rejected all of them and held in favor of broad local and state authority to enforce quarantines. 

            Dissenters in the case, including Justice Harlan, questioned the breadth of the state's power authorized by the Court's decision.  According the Brown, "the Board of Health is authorized and assumes to prohibit in all portions of the State which it chooses to declare in quarantine, the introduction or immigration of all persons from outside the quarantine district, whether infected or uninfected, sick or well, sound or unsound, feeble or healthy; and that, too, not for a few days necessary to establish the sanitary status of such persons, but for an indefinite and possibly permanent period."  In Brown's view, it was simply an "excuse" for the "wholesale exclusion of immigrants (399). The possibility of infection was too small to warrant such drastic measures (399), and the ordinance was in conflict with various treaty obligations (401).

            Given the court's general attitude toward police powers and its hostility to even the slightest expansion of the 14th amendment equal protection clause, evidenced in cases such as Plessy v. Ferguson (1896), Jew Ho v. Williamson (1900) and a related case, Wong Wai v. Williamson (1900) stand out as particularly interesting.  Here a local government, the city of San Francisco, attempted to use its quarantine powers in a patently discriminatory fashion. The Supreme Court displayed the willingness of courts to restrict those powers on some occasions.  The city drew its power of quarantine in the case, from a city board resolution, adopted in the Spring of 1900, which allowed the board of health to "quarantine persons, houses, places, and districts within th[e] city and county, when in its judgment it is deemed necessary to prevent the spreading of contagious or infectious diseases" (11).   The resolution was passed after two public health officials reported cases of bubonic plague.  The infections were all reported to have occurred within a section of the city populated with Chinese immigrants, nine of whom had apparently succumbed to the disease (12).  As a result, the health officials were given the authority to establish a quarantine within the district of the city where plague had been discovered, and the police department's assistance was solicited to enforce it.

            Jew Ho was the proprietor of a grocery store who had patrons both within and outside of the quarantine boundary.  He claimed that his business was being severely damaged by the quarantine measures, since customers were no longer able to carry on business with those outside of the quarantined district.   Moreover, he argued that the measures were anti-Chinese in that they were "enforced against persons of the Chinese race and nationality only, an not against persons of other races."  And in fact, businesses owned by those not Chinese within the quarantined areas were not subject to the same kinds of restrictions as Chinese owned businesses (13). Moreover, Jew Ho claimed that the persons that there were in fact no actual cases of plague within the quarantined areas, no plague bacillus found, and no deaths from the disease either.  Lastly, Jew Ho argued that the buildings, which were said to have been affected by the plague were not segregated from the rest of the quarantined districts, and that a quarantine of such a large area tended to have the opposite effect than stated. That is, it would allow and indeed encourage the disease to spread within the cordoned district, which would not only endanger the inhabitants of the district but of the entire city as well.  If the public health authorities were correct in their diagnosis, in other words, they were setting up a kind of laboratory for the spread of contagion, and this in turn would have potentially drastic consequences for the city as a whole (13). 

            As a result of this train of thinking, the plaintiff in the case contended that the resolution was "purely arbitrary, unreasonable, unwarranted, wrongful, and oppressive interference with the personal liberty of the complainant and the said Chinese residents."  It was unauthorized, invalid, void, and contrary to the constitution and laws of the United States" as well as the laws of the state of California, and a violation of the equal protection clause of the U.S. Constitution (13-14).

            Defendants in the case claimed protection for their actions in the state's police powers.  While the appellate court recognized the potentially wide sweep of the police powers, it also indicated its respect for the protection of individual rights.   While it suggested that the court's responsibility to strike down infringements of state power was undeniable, that it needed to be exercised with the "utmost caution" and only when it infringed upon "rights secured by the fundamental law" (24).  Moreover, in the case of a "great calamity" such as the outbreak of plague, "the court will go to the greatest extent, and give the widest discretion, in construing the regulations that may be adopted by the board of health or the board of supervisors" (29).

            The court found, however, that the quarantining of several thousand people to 10 or more city blocks was an unreasonable application of quarantine regulations.  It did virtually nothing to prevent the spread of disease among the local inhabitants.  The object of quarantine was rather to "confine the disease to the smallest number possible" (34) That is, if plague had indeed been found in a specific house, then the quarantine should have begun and ended at that particular house where the infections had been located.  Moreover, the court found that the measure did indeed discriminate against the city's Chinese population (35) and thus violated the equal protection clause of the constitution.  This was especially significant given that there was real question as to whether the affected people had actually contracted plague. 

            The "Haffkine Prophylactic" was, on highly dubious grounds, claimed to be a vaccine against bubonic plague.  Asian immigrants were required to take it or risk being quarantined or jailed. In Wong Wai v. Williamson (1900), the federal district court was asked to overturn a California state court's decision to allow the city's board of health to implement its order (1).  Under it, the state department of transportation was authorized to deny Asians access to trains in the state of California, as well as anyone deemed likely to have plague or to be at a high risk of becoming infected with it, unless they had a certificate that they had submitted to the inoculant (11).  The only justification offered by the health board was that "this particular race is ore liable to the plague than any other" (15). The district court overturned the city's order as a violation of the equal protection clause of the U.S. Constitution.

            A reading of some of the key legal cases at the last century's turn then, make it somewhat difficult to draw firm conclusions.  On the one hand, local and state authorities were often given wide latitude to assert state power when it came to matters involving the spread of infectious diseases.  These powers were reinforced by the assumption that quarantines were effective in containing potential disease outbreaks or epidemics.  Yet that quarantines were legally sanctioned does not imply uniform or seamless enforcement.  In fact, when Mary Mellon was quarantined, there were an estimated 10,000 typhoid carriers in the U.S., only a few hundred of whom had even been identified (Leavitt, 93).  Moreover, quarantine was virtually always a civil matter, and bringing criminal charges were seldom, if ever, brought against disease carriers.  Finally, there is a good deal of evidence that quarantines targeted various immigrant groups.  If this kind of targeting was explicit and extreme, courts did show eventually show some sympathy to recognizing violations of constitutional rights.


Images and Discipline


            As noted at the outset of this essay, in a standard liberal legalist narrative, Western history represents an progressive recognition of the need for protection of various rights.  In American versions, the U.S constitutional systems embodies the most complete outcome of this process.  This is the narrative track U.S. constitutional law textbooks often take, when dealing with everything from free expression to civil rights.[14]  This  interpretation of American legal history is not entirely without merit.  Particularly in the years of the Warren Court and immediately afterward, when Roosevelt, Kennedy and Johnson nominees tended to dominate the court's decisions, increased legal protections were carved out for the disenfranchised, the dissident, the non-religious, and the arrested.[15]  The historically progressivist view of liberal law has, however, taken some fairly rude shocks over the last couple of decades as first Richard Nixon's and then Ronald Reagan and George Bush's Supreme Court appointees began to have an increasingly significant impact on the court's decisions.  To the committed liberal, however, curtailments and revisions of earlier rulings such as Brown v Board of Education (1954), Miranda v. Arizona (1966), and Roe v Wade (1973), no doubt represent temporary setbacks that will be corrected as the historical expansion of rights gets back on track sometime in the next millennium (or two). 

            A  1994 law review article on law and tuberculosis incorporates a very specific representation of this narrative. Min makes the argument that a "new due process" emerged from the Supreme Court in the 1970s, and that this legal paradigm has made it more difficult for courts now to use legal tools, such as quarantine, to compromise individual rights in favor of presumed community health interests, as it did earlier in the century.  According to Min, "the due process clauses of the fifth and fourteenth amendments to the Constitution came to be interpreted as placing substantive limits on state legislation that deprives individuals of fundamental rights.  The era of complete judicial deference to the use of the police power to protect public health and safety ended and was replaced by a new willingness to closely scrutinize legislation whenever fundamental liberty rights are involved" (1133).  Min argues that the Supreme Court has now recognized the "massive curtailment of liberty" that results from civil commitments of various kinds, and it has expanded privacy rights, rights of cohabitation, and rights to travel.  This expansion of due process and privacy rights thus makes its unlikely that quarantine laws related to tuberculosis, HIV, or other infections would today be held as unconstitutional by the Supreme Court (1133-4). 

            Min draws support from this position from the Court's decision in School Board of Nassau County v. Arline (1987), where the majority ruled that specific evidence of contagiousness was necessary for a person, in this case a schoolteacher with TB, to be removed from a public space, in this case a classroom.  Since involuntary quarantine commitment is an even greater deprivation of liberty than the loss of a job, Min argues that an even higher standard of "dangerousness" would be necessary to withstand judicial "strict scrutiny" (1134). The increased willingness of courts to scrutinize state actions in a variety of areas has had an impact on the rights of the infected as well.  And this should (and implicitly will) carry over to not only those infected with TB, but with HIV and other transmissible diseases as well.

            When AIDS first appeared in the late 1980s, calls for quarantine were hardly unheard of.  Many of these came from the usual suspects list of the radical right:  Patrick Buchanan, Jerry Falwell, Pat Robertson, William F. Buckley.  A great deal of intellectual and political energy was expended by scholars[16] and activists to combat this new politics of quarantine.  To a large extent they were successful. Any sort of systematic or large scale quarantining of the HIV positive or even those with AIDS was never carried out,[17] not because courts overturned them, but because neither Congress, state legislatures or local city councils seldom attempted to impose them.  

            While this is must be considered as something of a victory for progressive political forces, it must also increasingly be seen as somewhat beside the point.  The threat of mass quarantines no longer looms large in policy discussions about HIV.  Quarantine has been replaced, in a way that is almost without historical precedent, by a slow and steady criminalization of the infected.  How this has occurred tells us something important about the role of the law in the current global media system.

            The face of criminal HIV transmission is still probably most clearly associated with the Nushawn Williams case.  Williams became the poster child for HIV criminality in the literal sense when in October 1997, his name was released to the public.  Williams was a small-town drug dealer from Brooklyn, who  seemed to be the common source for HIV transmission for about a dozen young girls in Chautauqua County, New York.  Not only was Williams name released, but his picture was placed on a poster and plastered in various places throughout the county.  It was this image of a young, somewhat thuggish looking African-American man that was picked up by the media and became imbedded in the popular cultural consciousness. 

            The image resonated deeply.  Drawing on a long history of associating crime, drug use, and promiscuous sexuality with young black men, the national and international media turned Nushawn Williams into a monster, the "AIDS monster,"[18] or the "bogeyman incarnate" as one commentator put it:  Nushawn Williams was the new face of AIDS and he's invading your little town.[19]

            If that were the end of the story that would be one thing.  Thousands of images fade in and out of global media markets in any given period of time, their ephemerality is sometimes offered as an excuse for their superficiality.  But this particular image, for many complicated reasons, stuck.  The Nushawn Williams case became a provocation for turning HIV transmission into a criminal offense. 

            Before the Williams case, there were about a dozen HIV criminal transmission cases, mostly involving rather odd circumstances. One case, for example, involved a prison inmate who through feces at guards in a vain attempt to infect them.  Another involved a physician who injected his mistress with HIV contaminated blood in order to infect her. (For a more complete discussion, see Shevory, 1999).

            Since the Williams case, numerous states have passed statutes in an attempt to make it easier to convict those who knowingly exposed their partners to HIV without informing them.  Even in those states, such as New York, where there are (still) no HIV specific criminal transmission laws, prosecutors have made attempts to use other statutes (such as reckless endangerment) to bring criminal charges forward (See Claiborne 2000, AP 2000).  Poz Magazine has recently featured a story on 101 "AIDS Criminals" (New laws 2000) i.e., those who have been brought up on a variety of charges related to HIV transmission around the U.S.  Most of these cases have proceeded since Williams received the attention that it did.  There can be little doubt at this point, I think, that the images launched in the Williams case have helped to advance and sustain legislative and prosecutorial activities related to HIV transmission.

             The move to criminalize HIV transmission must, of course, be seen in a larger context of the operations of U.S. criminal justice system.  Largely because of the determined effort to use criminal laws in the futile attempt to stop Americans from using addictive and psychotropic drugs, prison populations have exploded over the last decade.  There are now almost a half a million people in prison in the U.S. for violation of the drug laws, 80 percent of these cases involve possession, 44 percent involve possession of marijuana alone (Lewis 2000, A13).[20]  Most of the imprisoned are black or hispanic, although there is virtually no evidence that minority populations use drugs at higher rates than white or Anglos.[21]

            The "rights revolution" of the 1970s that was supposed to vindicate the liberal dream of equality treatment under law, has been badly undermined by numerous social forces in the last two decades.  The "strict scrutiny" doctrine (of the equal protection clause of the Constitution), which embodied it, remains hypothetically intact (just as does the "right to privacy").  But in the case of the social control of disease, especially in terms of HIV, images launched into and by global media markets have overwhelmed the careful consideration of constitutional rights and good public policy.  In certain respects, this is not new.  That notion that media images interact with reactionary political forces to discipline the unruly elements of liberal society by generating moral panics and crime controls can be traced back at least to Stuart Hall and his colleague's analysis of "mugging" in pre-Thatcherite Britain (1978; See also Jenkins 1998.)  But now the global media system is more centralized and pervasive.[22]  It's images move faster and farther than in the past, just as the nation-state and the constitutional controls once associated with continue to wither. (See Reich 1990, Greider 1997.)  In any event, it seems now to be that quarantining of the infected has been transformed from a civil matter which was subject to much political debate, into a criminal one which is the subject of very little such debate.  This is, I believe, historically unprecedented.





            Abraham, Henry and Barbara Perry. 1998. Freedom and the Court: Civil Rights and Liberties in the United States.  Oxford: Oxford University Press.


            AP Wire. 2000. Man sentenced for having sex with Ithaca Runaway. The Ithaca Journal. June 2: 4A.


            Barmore v. Robertson 1922. 302 Ill. 422.


            Beauchamp, Dan E. 1988. The Health of the Republic: Epidemics, Medicine, and Moralism  as Challenges to Democracy. Philadelphia: Temple Press.


The Bible. New American Standard Edition.


            Brandt, Allan M. 1985. No Magic Bullet:  A Social History of Venereal Disease in the United States since 1880. Oxford: Oxford University Press.


            Brody, Saul Nathaniel. 1974. The Disease of the Soul: Leprosy in Medieval Literature. Ithaca: Cornell Press.


            Brown v. the Board of Education of Topeka Kansas. 1954. 348 U.S. 886.


            Buck v. Bell. 1927. 274 U.S. 200.


            Campbell, Anna Montgomery. 1931. The Black Death and Men of Learning. New York: Columbia University Press.


            Cassedy, James H. 1991. Medicine in America: A Short History. Baltimore:  Johns Hopkins University Press.


            Cipolla, Carlo. 1992. Miasmas and Disease: Public Health and the Environment in the Pre-industrial Age. New Haven:  Yale University Press.


            Clairborne, J.R. 2000. Ithaca man indicted for passing HIV. The Ithaca Journal. May 10: 2A.


            Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health. 1902. 186 U.S. 380.

            Crayton v. Larabee. 1917. 220 N.Y. 493.


            Dowling v. Harden. 1921. 18 Ala. App. 63.


            Duffy, John. 1953.  Epidemics in Colonial America. Baton Rouge: Louisiana State University Press.


            Duffy, John. 1990. The Sanitarians: A History of American Public Health. Urbana:  University of Illinois Press.


            Ellis, John H. Yellow Fever and Public Health in the New South. Lexington:  University of Kentucky Press.


            Ely, John Hart. 1980. Democracy and Distrust:  A Theory of Judicial Review. Cambridge:  Harvard Press.


            Gibbons v. Ogden. 1824. 22 U.S. 1.


            Gilman, Sander. Picturing Health and Illness:  Images of Identity and Difference. Baltimore:  Johns Hopkins Press, 1995.


            Gleason, John. 1986. Quarantine: An unreasonable solution to the AIDS Dilemma. Washington Law Review. 55: 217-235.


            Greider, William. 1997. One World, Ready or Not: The Manic Logic of Global Capitalism. New York: Simon and Schuster.


            Gussow, Zachary. 1989. Leprosy, Racism, and Public Health: Social Policy and Chronic Disease Control. Boulder: Westview Press.


            Hall, Stuart, et al. 1978. Policing the Crisis: Mugging, the State, and Law and Order. New York: Holmes and Meier.


            Haverty v. Bass. 1876. 66 Me. 71.


            Helman, Cecil. 1991. The Body of Frankenstein's Monster: Essays in Myth and Medicine. New York: W.W. Norton.


            Hudson, Robert P. 1983. Disease and Its Control:  The Shaping of Modern Thought. Westport, CN: Greenwood Press.

            Jenkins, Kenneth. 1998. Moral Panics. New York: Routledge.


            Jew Ho v. Williamson 1900. 103 F. 10.


            Kennedy, Lisa. 2000. The making of monsters: The miseducation of Nushawn Williams. Poz Magazine. August: 38-44.


            Kevles, Daniel. 1985. In the Name of Eugenics: Genetics and the Uses of Human Heredity. New York:  Alfred A. Knopf.


            Lawton v. Steel. 152 U.S. 133.


            Lewis, Anthony. 2000. Breaking the silence. The New York Times. 29 July: A13.


            Lochner v. New York. 1905. 198 U.S. 45.


            Marks, Geoffrey and William K. Beatty. 1973. The Story of Medicine in America. New York: Charles Scribner's Sons.


            Marshall v. Kansas City, Mo. 1887. 355 S.W. 2d 877, 883.


            McNeil, William H. 1977. Plagues and Peoples. New York: Doubleday.


            Min, Kollin K. 1994. The white plague returns: Law and the new tuberculosis. Washington Law Review 69: 1121-1141.


            Minneapolis, St. P. & S.S.M. Railroad Co. v. Milner. 1893. 57 F. 276.



            Morley, David. and Kevin Robins. 1995. Spaces of Identity: Global Media, Electronic Landscapes, and Cultural Boundaries. New York: Routledge.


            Mugler v. Kansas. 1887. 23 U.S. 623.


            Mullett, Charles. 1956. The Bubonic Plague and England: An Essay in the History of Preventive Medicine. Lexington: University of Kentucky Press.


            New laws are locking up HIVers who have sex without disclosing.  Meet 101 "AIDS criminals." 2000. Poz. August.


            Nohl, Johannes.  1924. The Black Death: A Chronicle of the Plague. Translated by C.H. Clarke. New York: Harper and Brothers Publishers.


            Parmet, Wendy. 1985. AIDS and quarantine: The revival of an archaic doctrine. Hofstra Law Review. 14: 53-90.


            Plessy v. Ferguson. 1896. 163 U.S. 537.


            Reich, Robert. 1990. The Work of Nations: Preparing Ourselves for 21st Century Capitalism. New York: Vintage Books.


            Riley, James C. 1987. The Eighteenth Century Campaign to Avoid Disease. New York:  St. Martin's Press.


            Roe v. Wade. 1973. 410 U.S. 959.


            Rogers, Naomi. 1990. Dirt and Disease: Polio before FDR. New Brunswick, NJ: Rutgers University Press.


            Rosen, George. 1974. From Medical Police to Social Medicine: Essays on the History of Health Care. New York: Neale Watson Academic Publications.


            Rosenberg, Charles E. 1992. Explaining Epidemics and Other Studies in the History of Medicine.  Cambridge:  Cambridge University Press.


            School Board of Nassau County v. Arline. 1987. 480 U.S. 273.


            Shevory, Thomas. 1999.  Beyond Nushawn:  The criminalization of HIV.  Delivered at the Annual Meeting of the New York State Political Science Association. New York. May.


            Shevory, Thomas. 2000. Nushawn Williams and the American dream. The Buffalo Beat. April 13-19: 8-9.


            Starr, Paul. 1982. The Social Transformation of American Medicine (New York:  Basic Books).


            Sontag, Susan. 1989. Illness as Metaphor and AIDS and Its Metaphors. New York: Doubleday.


            Texas v. Louisiana. 1900. 176 U.S. 1.


            Wong Wai v. Williamson et al. 1900.  103 F. 1.

[1]Gussow (1989) provides numerous case studies of ancient and modern social practices organized to control leprosy.  He argues that in spite of moves toward "secularizing" the disease which began in the late nineteenth century, it still holds a symbolic "taint" in the minds of both American and European lay persons and medical professionals alike.  This is partly the result of its association with people of the Third World.

[2]During the reigns of Henry II of England and Philip V of France, however, lepers were routinely strapped to posts and set upon fire.  During the reign of Edward I of France, lepers were buried alive (Brody 69).

[3]Some evidence does exist that gravediggers did smear houses with infection in order to drive out the inhabitants and take possession of them (Nohl, 174).

[4]For an excellent case study of the operations of the Florentine health boards, see Cipola (1992).

[5]Duffy notes that Boston was probably the only American city in the early nineteenth century to have an effective quarantine system (1990, 59-60).

[6]While this was something of a victory for anti-contagionism, there few radical anti-contagionists among the medical profession.  The contagiousness of measles, smallpox, and most sexually transmitted diseases was widely was widely recognized.  The debate tended to hinge upon plague, yellow fever, and cholera (146).

[7]Rush's anti-contagonist impulses were partly at least inspired for his dislike of quarantine rules.  According to him, quarantine "demoralized our citizens...extinguished friendship, annihilated religion, and violated the sacraments of nature, by resisting even the loud and vehement cries of filial and parental blood" (quoted in Beauchamp 206).  For an analysis of Rush's scientific views regarding disease see Riley (1987, 140-150).

[8]On nineteenth century debates regarded what constituted "race," see Kevles (128-147).

[9]For a somewhat different interpretation of the meaning of tuberculosis in the late-nineteenth and early twentieth centuries, see Sontag (1989).

[10]The Supreme Court upheld one of these laws in the case of Buck v. Bell, where Oliver Wendell Holmes dismissed the constitutional rights of the plaintiff with his infamous quip, "Three generations of imbeciles is enough."

[11]For a fine analysis of how bias against the poor figured into anti-polio campaigns in the first half of the twentieth century, see Rogers (1990).

[12]While the classic definition of police powers probably resides comfortably within the case of Mugler v. Kansas, one its more specific representations is stated in Lawton v. Steel.  The issue dealt with the regulation of fisheries.  Under police power, the court included: the power to destroy a decaying house, "the slaughter of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways and other means of public conveyance, and of interment in burial grounds; the restriction of objectionable trades to certain localities; the compulsory vaccination of children; the confinement of the insane or those afflicted with contagious diseases; the restraint of vagrants, beggars, and habitual drunkards; the suppression of obscene publications and houses of ill fame; and the prohibition of gambling houses and places where intoxicating liquors are sold" (133).

[13]Because of its climate, its size, and the amount of commercial activity that it carried out with the Caribbean, New Orleans was often subject to disease outbreaks.  Until the organization of the New Orleans Sanitary Association in the late 1880s, it was also known for the laxity of its quarantine regulations (Ellis 1992, 83-104).

[14]A good case in point is the narrative of "incorporation," which assumes that Marshall was correct to exclude Bill of Rights protections to citizens of states and localities in Barron v. Baltimore, that this was partly correct by the post-civil war national and state legislatures via passage of the Fourteenth Amendment, but that the ambiguity of the amendment allowed  cautious but wise Supreme Courts to eventually bring various individual rights under the rubric of the national constitution. (For a representation of this view, see Abraham and Perry (1998).

[15] For a good defense and extension of Warren Court jurisprudence, see Ely (1980).

[16]For good legal analysis of quarantine laws in relation to HIV and AIDs, see Gleason (1986) and Parmet (1985).

[17]The exception here is prisons, where courts have upheld the state's interest in segregating HIV prisoners from the rest of the prison population (Gleason 1986, 224).

[18]For a recent discussion, see Kennedy (2000).

[19]Over the period of the last few months, I have visited Nushawn Williams twice at the Auburn Correctional Facility.  I have also spoken to him over the phone several dozen times at this point.  It has become clear to me that the person that was portrayed as a monster by the national media is a rather complicated and very intelligent young man, although he is certainly not, as they say, an angel.  (For a preliminary account of some of my interactions with Mr. Williams, see Shevory, 2000.)  Still, he is a model prisoner, never convicted of a violent crime, who remains housed in a maximum security prison. Largely, I believe, because of the notoriety of his case.)

[20]This figure represents a 10 fold increase from 1980.  For comparison's sake, it is worth considering that the entire European Union, which has a population 100 million greater than the U.S., has only 100,000 people total in all of its prisons.

[21]An estimated, thirteen percent of regular drug users in the U.S. 62.7 percent of drug offenders sentenced to prison are black (Lewis 2000, A13).

[22]Critiques of global media system are too numerous to mention here, but one of the most interesting and provocative, to my mind, is Morley and Robins (1995).