Public Health Law Map - Beta 5 - Medical and Public Health Law Site

1942.]
The English statutory and common law recognized the right of the state to quarantine
and limit the movement of plague carriers. Blackstone observed that disobeying
quarantine orders merited severe punishments, including death. The American colonies
adopted the English laws on the control of diseases. When the Constitution was
written, public health power was left to the states, because it was considered
fundamental to the state’s police power:
It is a well-recognized principle that it is one of the first duties of a state to take
all necessary steps for the promotion and protection of the health and comfort
of its inhabitants. The preservation of the public health is universally conceded
to be one of the duties devolving upon the state as a sovereignty, and whatever
reasonably tends to preserve the public health is a subject upon which the
legislature, within its police power, may take action. [Application of Halko,
246 Cal.App.2d 553, 54 Cal.Rptr. 661 (Cal.App. 2 Dist. Nov 18, 1966)]
Soon after the Constitution was ratified, the states were forced to exercise their police
power to combat an epidemic of yellow fever that raged in New York and
Philadelphia. The flavor of that period was later captured in an argument before the
Supreme Court:
For ten years prior, the yellow-fever had raged almost annually in the city, and
annual laws were passed to resist it. The wit of man was exhausted, but in vain.
Never did the pestilence rage more violently than in the summer of 1798. The
State was in despair. The rising hopes of the metropolis began to fade. The
opinion was gaining ground, that the cause of this annual disease was
indigenous, and that all precautions against its importation were useless. But
the leading spirits of that day were unwilling to give up the city without a final
desperate effort. The havoc in the summer of 1798 is represented as terrific.
The whole country was roused. A cordon sanitaire was thrown around the city.
Governor Mifflin of Pennsylvania proclaimed a non-intercourse between New
York and Philadelphia. [Smith v. Turner, 48 U.S. (7 How.) 283, 340–341
(1849)]
The extreme nature of the actions, including isolating the federal government (sitting
in Philadelphia at the time), was considered an appropriate response to the threat of
yellow fever. The terrifying nature of these early epidemics predisposed the courts to
grant public health authorities a free hand in their attempts to prevent the spread of
disease:
Every state has acknowledged power to pass, and enforce quarantine, health,
and inspection laws, to prevent the introduction of disease, pestilence, or
unwholesome provisions; such laws interfere with no powers of Congress or
treaty stipulations; they relate to internal police, and are subjects of domestic
regulation within each state, over which no authority can be exercised by any
power under the Constitution, save by requiring the consent of Congress to the
imposition of duties on exports and imports, and their payment into the
treasury of the United States. [Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 616
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