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Friday, October 16, 2020

Salus populi suprema lex esto?

I wonder whether Trump "Texualist" SCOTUS nominee Amy Coney Barrett would disagree?

Came to this timely book by way of the author's NY Times OpEd (prior post). Finished it straight away. Compelling. Kudos, John Fabian Witt, PhD, JD.



Chapter 1: The Sanitationist State 

Chapter 2: Quarantinism in America 

Chapter 3: Civil Liberties in an Epidemic? 

Chapter 4: New Sanitationisms / New Quarantinisms 

Chapter 5: Masked Faces toward the Past 

Afterword: Viral Protests 


Suggested Reading 




Salus populi suprema lex esto. (The health of the people is the supreme law.)

—Cicero, De legibus 

Not long ago, and for most of American history, infection was an everyday crisis. Infectious diseases like smallpox, bubonic plague, yellow fever, polio, cholera, typhoid fever, malaria, and influenza helped produce many of the defining features of the modern world: street cleaning, the shape of city neighborhoods, the clean water piped to our kitchens, and the pediatrician visits that mark the lives of our young children. Even how people behave in the bedroom in their most intimate moments reflects the risk of infectious disease. 

Less tangibly, perhaps, but just as profoundly, laws and government have shaped and been shaped by recurrent crises of infectious disease. Epidemics have offered vast powers to state officials. They have produced new ideas about individual rights and basic civil liberties. They have raised questions about equality, since infections have not targeted Americans equally. And they have demanded that we create institutions capable of protecting important values while aggressively fighting the risks of infection and disease. 

This book is a citizen’s guide to the ways in which American law has shaped and responded to the experience of contagion. In the months after COVID-19 arrived in the United States in January 2020, Americans began immediately replaying patterns from the past. Even new responses were powerfully conditioned by history. And how could it have been otherwise? As Karl Marx once wrote, people make their own history, “but they do not make it just as they please.”1 We produce the future out of history’s ingredients. But we are not doomed to repeat it, either as unnecessary tragedy or as ignorant farce. If the past is a guide, how our law responds to contagion now and in the future will help decide the course of our democracy. Historically, the law of epidemics has prompted Americans to make choices about basic values. People who know their history make better choices…

Witt, John Fabian. American Contagions (pp. 8-9). Yale University Press. Kindle Edition. 



Nationwide protests in late May and June 2020 arose just as the United States tried to reopen after two months of widespread COVID-19 shutdowns. The death of an African American man named George Floyd at the hands of Minneapolis police produced an outpouring of dissent and anger like none seen since at least the mass protests of 1968. 

Protesters aimed to bring an end to some of the same inequities the law of epidemics had made visible over the past several centuries. From the earliest seventeenth-century settler-colonial quarantines to the yellow fever policies of the late eighteenth and nineteenth centuries to the border inspections in Texas and California to the virus of the spring of 2020 and beyond, American legal responses to epidemics have targeted the poor, people at the border, and nonwhites. America’s record on infectious disease is filled with discriminations and authoritarianisms. Each new infection presents a risk of entrenching existing inequities. 

On the other hand, epidemics have repeatedly offered a vantage from which to see deep into basic structures of inequality and injustice in the American legal order. As the nineteenth-century jurisprudence of hygiene made apparent, calamity can be an occasion for making intolerable social conditions visible—and for reforming them. Progressive sanitarians turned contagion risks into opportunities for lifting up the poor. Savvy political leaders grasped the ways in which public health could sometimes align the interests of rich and poor, white and Black, citizen and immigrant. Disease specialists found ways to connect civil liberties and collective welfare. 

America has two histories: one ugly, the other far more appealing. In the months and years ahead, Americans will hold the power to choose between them. Let’s make the right choice. [pp. 84-85]

IMO, it's a safe bet that we will be struggling against the Covid19 pandemic well into 2021. I could not recommend this concise yet thorough book more highly. We could well continue to make myriad wrong choices. As of this evening, US Covid19 fatalities exceed 218k. Daily new cases continue to rise.

VOTE on November 3rd.


...For centuries, American constitutional law granted state governments broad public health powers. “Salus populi suprema lex,” the old saying went: The health of the people is the supreme law. Such authority went back to the beginning of the Republic. In the famous 1824 case of Gibbons v. Ogden, Chief Justice John Marshall defended the “acknowledged power of a State to provide for the health of its citizens.” States, he explained, were empowered to enact “inspection laws, quarantine laws” and “health laws of every description”…

The basic outlines of this approach remained in place for more than two centuries. Today, however, the tradition of salus populi is in collapse. In state and federal courts alike, Republican-appointed and Republican-elected judges are upsetting the long-established consensus.

This month, a bare majority of four Republican-appointed justices on the Michigan Supreme Court struck down the state’s 75-year-old emergency powers law as an “unlawful delegation of legislative power to the executive.” In dissent, Chief Justice Bridget McCormack (who was endorsed by Democrats when she campaigned for election to the court) correctly identified the majority’s reasoning as “armchair history” that set aside decades of precedent.

Last month, a federal district judge in Pennsylvania appointed by President Trump struck down the state’s business closure rules and its limits on gatherings. The judge in the case, William Stickman, revived hoary ideas about freedom of contract and laissez-faire economic policy that once led the courts to strike down protective labor legislation like wage and hour laws.

And back in the spring, four justices connected to the Republican Party on the Wisconsin Supreme Court overturned their state’s common-sense emergency Covid-19 rules over the dissents of three colleagues…


Also called "Ouija Board Jurisprudence."

The theory is that the only things that matter are the exact words in the Constitution and what they were understood to mean by the citizens at the time of adoption. Need I really enumerate the questions begged?
  • Which citizens? Only landed, literate white males (their contemporary "epistocrats")?
  • What if they left no unambiguous writings? (Ouija Board Seance time?)
  • What of vagueness, ambiguities, and contradictions?
  • Finally, what is the purpose of a "constitution?" Jousting lexical / semantic pedantry or moral intent?

No-nuance, reflexive Textualism is a fatuous theory, promulgated most ostentatiously by the late legend-in-his-own-mind Antonin Scalia (Judge Barrett's mentor). He explictly differentiated himself from the "Original Intent" advocates. He said he didn't care about "intent," only the final-cut-ratified words as "understood" at the time of Signing (again, by whom?). But, overarching moral intent matters. Y'know, like, say, those in the Preamble?

BTW, some words and phrases not found anywhere in our Constitution:
  • "Checks and balances"
  • "Co-equal branches"
  • "Separation of Powers"
Props to esteemed ConLaw Professor Garrett Epps

Where does stuff like that leave us?

Right back at "intent," as it bears on rational resolution the issues faced by living Americans, by those appointed or elected to represent them on the courts.
During her recent Senate Judiciary Committee confirmation hearing, Judge Barrett told of a "textualism" course taught at her Notre Dame Law School entitled "Scalia vs Thomas" (Justice Clarence Thomas). What more do you need to know? Seriously? Dueling obtuse "No True Scotsman" debates? "Well, (harrumphingly), no True Textualist believes that..."

abstract. Judges generally begin their interpretive task by looking for the ordinary meaning of the language of the law. And they often end there—out of respect for the notice function of the law or deference to the presumed intent of the lawmaker. 

Most everyone agrees on the primacy of the ordinary meaning rule. Yet scholars roundly be- moan the indeterminacy of the communicative content of the language of the law. And they pivot quickly to other grounds for interpretation…

Interesting read.

"When we speak of ordinary meaning we are asking an empirical question—about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. We propose to import those methods into the law’s methodology of statutory interpretation. And we consider and respond to criticisms of their use by lawyers and judges."

Hmmm... My 2017 post on AI/NLP?


YTD seven-day moving-average curve-fit through daily confirmed cases

CNN graphic.


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