Legal Histories of Disease
Fourth Annual Conference of the Stanford Center for Law and History
April 29, 2022
Cosponsored by Stanford Humanities Center; Program in History & Philosophy of Science, Stanford University; and Medical Humanities and the Arts Program (Medicine & the Muse)
This is a hybrid event held in-person at Stanford Humanities Center and online via Zoom
Registration and Breakfast, 8:30 – 9:25 AM (Pacific)
Welcome: 9:25 – 9:30 AM (Pacific)
Panel 1: “Disease Management and Disobedience,” 9:30 – 10:45 AM (Pacific)
Professor, John Hopkins History
Chair and Commentator:
Carl and Sheila Spaeth Professor of Law, Stanford Law School and Professor (by courtesy) of English, Stanford
Inoculation Controversies in Early America: The Case of Norfolk, Virginia
This paper considers an inoculation riot in Norfolk, Virginia in 1768. This was a major event there, one receiving considerable newspaper coverage. The man at the center of the riots also later hired Thomas Jefferson to represent him in court in a suit for damages. There have been older treatments of this event, but most tend to read back onto these events from what happened subsequently in the 1770s. Historians of disease and medicine have discussed it in fairly brief terms. Others tend to view it as an American Revolution controversy in microcosm, since many of those in favor of inoculating were Scottish immigrants who subsequently became Loyalists. These treatments are not wrong, but they are insufficient. They are also teleological and slightly misplaced, in my view, since they assume that there is a set Loyalist or Patriot identity already fully formed in 1768. A great deal of recent literature on the coming of the American Revolution, though, has shown how these identities developed in complicated and mutable ways, that there were very few firm allegiances already in place by 1768. So we need to consider these events in a way grounded in the 1760s. It is also helpful to consider a wider set of participants here including enslaved people and the wives and children who received the inoculations and who have not figured in most account. My account therefore emphasizes tensions that developed in the 1760s, exploring issues around politics, rank, gender, and race.
Ph D Candidate, Yale History
Winner of the 2022 Stanford Center for Law and History Graduate Student Annual Conference Paper Prize
Professor, Department of Anthropology, Stanford
Calling the Shots:
Civil Liberties and Anti-Vaccination Lawsuits in the Progressive Era United States, 1900-1920
This paper examines alternative visions of public health infrastructure and policy in anti-vaccination lawsuits brought by liberal civil libertarians during the Progressive Era in the United States, as well as the definitions of disability that litigants constructed in their attempts to more clearly define abstract rights to bodily autonomy. In particular, the paper focuses upon the arguments made by the state of New York and the prominent civil liberties attorney Harry Weinberger in People v. Ekerold, 105 N.E.670 (N.Y. 1914). In Ekerold, Weinberger and the attorneys for the state advanced competing visions of public health management in response to the ongoing and severe global smallpox epidemic. Weinberger’s vision far exceeded the basic quarantine and masking mandates discussed today. Most notably, archival material such as drafts of briefs and correspondences with policymakers reveal imaginative plans for large, state-run quarantine centers where infected individuals would be incentivized to voluntarily admit themselves in exchange for state-provided benefits. Furthermore, specific conceptions of disability served as an important shorthand for the litigants on both sides as they attempted to defend their visions and to define the precise contours of rights to bodily autonomy. Ultimately, cases like Ekerold exemplify how definitions of disability became linked to expansionist views of the state, even as most of those visions failed to materialize in full and as other civil libertarians sought to create further distance between themselves and the mechanisms of government.
Break, 10:45 AM – 11:15 AM (Pacific)
Panel 2: “Policing Disease at the Borders,” 11:15AM – 12:30 PM (Pacific)
Associate Professor of History, University of California, Berkeley
Chair and Commentator:
Associate Professor, Stanford Law School and Professor (by courtesy) of History, Stanford
Japanese Immigrants, Trachoma, and US Border Control
This paper examines the provisions of US immigration law restricting the admission of foreigners with contagious diseases. In particular, it analyses the implementation of the provisions against Japanese immigrants with trachoma—an infectious eye disease—at the turn of the twentieth century. Based on case reports in the Immigration and Naturalization Service records, the paper investigates how officials at ports of entry on the West Coast refused the landing of the Japanese with trachoma, illuminating how disease functioned as a principal legal ground for immigrant exclusion along with other provisions regarding poverty, the likelihood of becoming public charges, and sexual immorality. The paper then turns to how the anti-disease provisions shaped the migration experience of the Japanese even before their departure in Japan. As part of the process of applying for a passport for emigration, the Japanese had to pass medical inspection, especially for trachoma. While simply complicating the procedures for emigration, this situation often created an additional financial burden on migrants who had to pay for the treatment of their trachoma. Furthermore, the necessity of medical inspection even subjected migrants to frauds by exploitative doctors and emigration agents, who continuously charged examination and accommodation fees without letting the migrants pass the inspection. By using this form of relationship between the Japanese and the anti-disease provisions of the US immigration law as a case study, the paper proposes to extend the scope of the study of immigration law beyond points of entry and post-entry situations in the host country to include the impact of the law on migrants’ pre-departure experiences in their homeland.
Associate Professor of History, Texas State
Julius Silver Professor
Not Mexican: Tracking the Resistance to Public Health Vaccine Mandates in Texas, 1922 – 2022
In 1923, a loose coalition connected to the Klan, Christian Scientists and the Carpenter’s Union posed a public challenge to the requirement that every student and employee receive a vaccination against smallpox to be able to study or work for El Paso Public Schools. The challenge seemed deep enough that the El Paso City Council decided to host a forum in Fort Bliss to address the variety of claims being made regarding the nature of compulsion, the ability of ‘the state’ to regulate one or one’s households’ access to public goods, and the identity of people being regulated. The key overlapping phrase among the dissenters was that no government can pass laws that can determine what a citizen can do with their bodies. In response, US Public Health Service Officer J.W. Tappan pointed to the practices and requirements that they implemented on ‘Mexicans’ at the Santa Fe bridge and the U.S. Army required of its conscripts and volunteers demonstrating that, indeed, the federal government could and did pass these laws and require this cooperation. Tappan and the City Council, with no irony, pointed to the incorrect assumption that only people identified as Mexicans could be subject to these compulsions.
School districts across Texas passed compulsory vaccination requirements to attend school, alongside compulsory attendance requirements. They passed these laws with confidence after the Supreme Court determined these laws were constitutional in Zucht v. Texas. Here, Justice Brandeis reiterated that despite the challenges posed by the wealthy and established Zucht family in San Antonio, the regulations passed by San Antonio ISD did not break with the due process clause of the 14th amendment but, “Unlike Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220, these ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health.”
What this project argues is that resistance to compulsory vaccination in Texas is ‘not Mexican.’ That is, there is a broad assumption that public health laws and practices are best directed at ethnic Mexicans and other subject classes and that one of the privileges of citizenship (again, not Mexican) is being able to demand substantive due process to avoid being subject to the laws debated and passed by duly established jurisdictions. This legal attitude regarding the privileges of whiteness has accelerated as public spaces become increasingly inhabited with ethnic Mexicans, African Americans, Asian Americans and Latina/o/xs.
With the advent of antibiotics, departments and disciplines devoted to tropical and infectious disease specialties became a subset of pediatrics and vaccines became identified with border crossing and childhood medical guidelines. By examining discussions and challenges during the Polio and MMR campaigns, families of color pushed to receive a measure of substantive due process expected by white heads of household in Texas.
The paper ends with our current ethnographic moment, where the Texas governor has adopted policies nearly identical to the Klan members, Christian scientists and Carpenter Union members who dissented in El Paso in 1923: End the visible movement of ethnic Mexicans crossing borders, detain people who seem to be vulnerable and foreign, and demand the right of citizens to ignore “the broad discretion required for the protection of public health.” Only entering Mexicans (and Hondurans, Salvadorans, Guatemalans, Brazilians and Haitians, etcetera) deserve to be detained, criminalized and treated as public health threats and any other public health policies regulating movement across public and private borders challenges the incorrect assumption that only people who are ‘not Mexican’ deserve substantive citizenship and the protections of public health.
Lunch, 12:30 PM – 2:00 PM
Panel 3: “Early Experiments in Public Health,” 2:00 PM – 3:15PM (Pacific)
Assistant Professor of History, Stanford
Chair and Commentator:
Leff Families Professor of History
The Sickly State: Epidemics, Indifference, and Greed in Antebellum New Orleans
In the landmark 1824 case Gibbons v. Ogden, Chief Justice John Marshall recognized the “acknowledged power of a State to provide for the health of its citizens.” This could encompass an “immense mass of legislation” and “health laws of every description.” By the 1830s, many American cities had adopted an interventionist philosophy of health and government, instituting quarantine, enforcing health codes, and establishing hospitals. Such policies proved that money spent on public health could save lives.
Legislators in antebellum New Orleans—the nation’s “necropolis” beset by regular, crippling epidemics of yellow fever—adopted the opposite philosophy of health and government and justified inaction and cheapness by adhering to a narrowly defined vision of what government could and should do. Louisiana’s state legislature ceded all control over health in New Orleans to its municipal government in 1816, giving its city council “full and entire power” to enact legislation “to preserve the public cleanliness and salubrity.” In 1827, Louisiana’s Supreme Court affirmed the city council’s “extensive discretion” over health legislation. The council used is discretion to do nothing. Boards of health came and went; quarantines were attempted sporadically and without vigor; streets were strewn with sewage and rotting animals, the Charity Hospital was a notorious deathtrap. As Dr. E. H. Barton put it 1853, “New Orleans is one of the dirtiest, and . . . consequently the sickliest city in the Union, and scarcely anything has been done to remedy it.”
Why did politicians allow health to fall to such abysmal levels in New Orleans when even a little intervention—garbage removal, drainage, cordon sanitaire, hospitals, and quarantine—could have saved thousands of lives? Why reject the ameliorative systems and laws employed to great effect in other nineteenth-century cities? And how was it that the persistent waves of lethal disease did not undercut the stature, legitimacy, and reputation of government and the cotton kingdom writ large?
Gilder Lehrman-National Endowment for the Humanities Professor of Civil War Era Studies and History
Professor, History of Medicine and History
Deadly Water: A New Origin Story of Public Health
My paper, “Deadly Water: A New Origin Story of Public Health,” uncovers how the field of public health developed in direct response to the cholera pandemic of 1866. Many scholars trace the rise of public health in the United States to increased urbanization, industrialization, and immigration in the late nineteenth and early twentieth centuries. My project challenges this history by uncovering two major factors. First, I argue how the outbreak of cholera among Native Americans on reservations in the West and formerly enslaved people on military-run plantations in the postwar South led to the development of protocols to control the spread of the 1866 cholera pandemic. Second, I situate the origin of public health in a broader global context, uncovering how transnational networks influenced the creation of public health in the U.S. I examine the ways in which the development of public health protocols in post emancipation societies in the Caribbean provided state authorities, particularly in Louisiana, with insight on how to develop surveillance methods to track the spread of the pandemic.
I uncover a surprising genealogy of public health that traces public health initiatives from London to India to the Caribbean to Louisiana. The scholarship on public health in the U.S. has fetishized cities in the Northeast, overlooking the South and the West but, most importantly, the Black and Native populations that resided in these regions.
Building on my most recent book, Maladies of Empire (Harvard UP, 2021) on the origin of epidemiology, my new project explains how public health can be traced to global exchanges among doctors in the U.S. with their colleagues around the world. Beginning with the 1866 pandemic, my paper shows how government officials in the U.S. began a robust exchange with their international colleagues, particularly in the Caribbean, to learn more about how to establish public health protocols.
Break, 3:15PM – 4:00 PM (Pacific)
Keynote Session: 4:00 PM – 5:00 PM (Pacific)
Allen H. Duffy Class of 1960 Professor of Law, Yale Law School
Professor of History, Yale
In discussion with
Charles and Linda Wilson Professor in the History of Medicine; Director, Humanities in Medicine
University of Nebraska, Lincoln
Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies, Stanford Law School, and Professor (By Courtesy) of History, Stanford
American Contagions: Epidemics and the Law from Smallpox to COVID-19
From yellow fever to smallpox to polio to AIDS to COVID-19, epidemics have prompted Americans to make choices and answer questions about their basic values and their laws. In five concise chapters, historian John Fabian Witt traces the legal history of epidemics, showing how infectious disease has both shaped, and been shaped by, the law. Arguing that throughout American history legal approaches to public health have been liberal for some communities and authoritarian for others, Witt shows us how history’s answers to the major questions brought up by previous epidemics help shape our answers today: What is the relationship between individual liberty and the common good? What is the role of the federal government, and what is the role of the states? Will long-standing traditions of government and law give way to the social imperatives of an epidemic? Will we let the inequities of our mixed tradition continue?