The Conundrum of Constitutional Quarantine: The Floundering Founders

Was 1918 the last time we were faced with the question of quarantine? No. It was only the last time we had to face the question in the context of a virus. The Pearl Harbor attacks, largely seen as the basis of our entry into WWII, eventually led the military to gather intelligence that there were thousands of Japanese spies across the west coast who presented an imminent threat to that area. President Roosevelt deferred to his military and issued an order that would create what we now refer to in history as the internment of Japanese-Americans;

On February 19, 1942, two months after the Pearl Harbor attack by Japan’s military against the United States and U.S. entry into World War II, U.S. Pres. Franklin D. Roosevelt issued Executive Order 9066, which enabled his secretary of war and military commanders “to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded.” Although the order mentioned no group in particular, it subsequently was applied to most of the Japanese American population on the West Coast.

https://www.britannica.com/event/Korematsu-v-United-States

The Supreme Court of the United States determined that this was action the government was allowed to take under the circumstances, Justice Black wrote;

Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

Is a virus like a hostile military force? Both are “threatened danger” but what is different about them? Well number one, militaries are visible to the naked eye (when they aren’t hiding in bushes). Viruses are not. Does the fact that the virus itself is unseen, as well as the fact that most cases begin as asymptomatic and many remain that way, do those facts lead to a conclusion that the Quarantine orders put in place are commensurate with the threatened danger?

No. There is no possible way to conclude that asymptomatic citizens can be justifiably quarantined. We know this because viruses and the like were a much more familiar foe to the founding fathers than they are to us in 2020. In fact, even some of history’s most deadly diseases couldn’t stop the revolution occurring, and there was no option to rebel from home back then. Sickness and death was simply part of life, and did not serve as a reason to completely shut down commerce.

Historian Forrest McDonald wrote: “Survival itself, in fact, was never far from conscious thought among eighteenth-century Americans, for death was their constant companion. Death at birth or in early infancy took four children in ten, and smallpox, cholera, and tropical fevers periodically ravaged the adult population.” Forrest McDonald, The Presidency of George Washington, p. 8.

Even the founding fathers were not insulated form the danger posed by virus and disease in the world at the time

James Monroe and his wife lost a baby to whooping cough. Franklin lost his beloved son “Frankie” to small pox at age four. Thomas Jefferson lost three daughters and a son before they reached their third year. Jefferson’s beloved wife Martha died in 1782, a few months after giving birth to a daughter who herself would die in 1785. Of the six children of Albert and Hannah Gallatin, only three survived childhood. Abigail Adams gave birth to six children, one of whom was stillborn and second lived only 13 months. George Washington himself had no children, but he lost his beloved stepdaughter “Patsy” to epilepsy at age 17. His stepson “Jacky” would survive childhood only to fall victim to “camp fever” at age 26.

All of this death from pestilence, and yet a rag-tag group of colonists were able to mount a successful revolution against the strongest military in human history at the time. If doing nothing was the only possible response to danger, then the revolution would have never happened. In overcoming the British we relied on the disciplined exercise of freedom, not government instituted restriction. With nearly 250 years since then, modern times do not know such an ugly and virulent era. The reason for that is innovation and advancement, and we should rely on those values in combating coronavirus as well. And if a deadly virus were enough to force people in doors back then, then the Declaration of Independence never gets signed in the first place.