All programs are available as podcasts. Hi. I have got with me a wonderful author who has written a fantastic book. John, you are a distinguished law scholar and distinguished historian and you have given us a book for the ages at exactly the right time that we needed in the midst of a pandemic. You said that your goal is to do a citizens guide. What did you mean by that . Great question. I wanted to write a book that would be a first draft of the history of law epidemics for the year of covid and beyond. It would speak to an interested reader, not just a specialist in the field. I thought my value added may be to translate to readers that are just fascinated by the blizzard of legal issues that have arisen no. Of course, we never thought about it now. Particularly, what can we learn from them and what will we know when its going to be over. I want to begin, john, if i can, at the end of your book. Then i will pivot back to ask you more about this question. America has two histories. One ugly and the other far more appealing. Americans will hold the power between them. Lets hope they make the right choice. I will be asking you more about what that right choices at the end of our interview. For now, i just want to know, you know, what is the ugly part of america . That is a great question. That is what came out to me in these historical materials. Lets start with the ugly part. Lets get right to it. A really dreadful history of discrimination around disease, against racial things, against the poor. People have found themselves on the losing side of epidemics. European arrival in north america. It goes way back. Its amazing and which disease we really need to grapple with it. We think about the racial effects of covid. The way it has affected poor communities, communities of color. It really brings that history back. That is one central piece of the ugly side of the history. It is just about the ugly facts. I also thought, though, it had to do with contested politics of disease in our legal history and that there were junctures at which disease had unveiled certain things that were not that clear before disease rendered really evident how poverty shapes various communities. Throughout the 19th century into the 20th, you see various forms of progressive reform. The poorest in the community. In part because of their Health Matters for everybody elses health. That solidarity holds and it a different kind of politics. To my mind, a more hopeful, legal approach. I think they are in our paths in and our present and i think both of them will be in our future, i just do not know what the ratio will be. You are right. People of color, black americans, american indians, really suffered four times greater after the cases from covid than the non, white populations. You are absolutely right there. In terms of bigotry, we have president now calling this the china virus. How does that play into the bigotry . There have certainly been moments for demagoguery around disease. Going back. Scapegoating. A long history of scapegoating. I think, for example, the fear around bubonic plague which produced a targeted set of quarantine orders and exclusively at the chinese population. Kind of an important case in our history. It reveals some of the ways in which particular populations could be scapegoated. The Community Interest in politician interests. Just out of my curiosity, the case from San Francisco where they quarantined an area of San Francisco, but left out, they only applied it to the chineseamerican populations. Courts struck it down. That was a local decision. Have we seen a president of the United States feed into the bigotry in terms of a pandemic and the kind of intersection between scapegoating countries, peoples on the one hand and Public Health on the other . I do not think we have. It is always dangerous to say that. This particular feature, i dont know if we have seen that much. President Woodrow Wilson immediately and after they stay pandemic. The influenza pandemic of 1918 1919. In part, helping him mobilize troops and send troops abroad without talking about it. Lots of action at the state and local level. Our history has a large history of state and local officials struggling with Infectious Disease while the feds have a peripheral role. Guiding and things like that. This is the first pandemic, i think, where a president has gotten centrally involved. A huge pandemic. I was on a panel of the other day. They were talking about another great epidemic. The aids epidemic. Still going on. This is somebody who was in the bush white house. The big Emergency Program for aids. A great legacy for the United States and great u. S. Leadership in Global Health. He pointed out something that i thought was really interesting. Reagan, during aids, in the way you are saying, never mentioned aids. He did not get in the way. He did not criticize science. He did not undermine his Public Health agencies. For this white house under the bush administration, he thought it was really unusual for a president to be so, taking a stand against the big Public Health agencies. Part of it is the presidency has changed in American History so dramatically in the 20th century. Particularly postworld war ii periods. The rise of the presidency comes in some sense after the first great age of academics and pandemics. There is a wonderful clip in your field and the field of Public Health. Nineteenth century followed by the 20th century followed by the 19th century again. The return of Infectious Diseases, the emergence of new diseases has put 21st century president s in a 19th century setting. That is a new phenomenon for us. What a great point, john. We are really finding at the moment, until we get a vaccine and some really good treatment, we are really fighting with 19th century. Contact racing. We dont have a vaccine. We are locking down. You talk about the Police Powers. You start with the Police Powers police power sounds really quite ominous. A police state. You point out that that is not the right case. Police powers really a misunderstood piece of American History. There have been some historians that work for a couple decades now. Trying to tell the real story of the police power. Not having anything to do with anyone in uniform. Its not about the state troopers or the cops on the beat. It is a basic fundamental power of the collectivity to look out for its members. That is what we are talking about. The authority of local and state governments to make sure that their communities stay healthy and stay well and look out and prosper. That is the police power. Constituent power of collective selfgovernment. It is at the heart of political communities like ours. Often times we have lost track of that over the course of history. One of the wonderful things about doing research for this book was encountering, go back to the 17th century, but the 18th and early 19th century, a plethora of examples where state governments organize themselves around looking after the health and welfare of people and epidemics. That was central to self governments at the founding of this country. It is interesting about Police Powers. You start the book with an epigraph from cicero saying help is the highest law of the land. Government has no greater power or duty than to protect the health and security of our citizens in a serious democracy that, you know, there are a lot of things we can do for ourselves. Essentially, we cannot stop epidemic diseases by ourselves. We need a collective to do that. You know, police power is important. Another important point about the Police Powers in the United States specifically, john. You point out who holds about power primarily. Just a little bit about that. It will be really important for us americans and the public to understand, you know, who was in charge in this pandemic. Larry, you are right. One of the really peculiar features about american constitutional structure is at the federal government is usually said not to have a police power. Enumerated powers specifically listed in the u. S. Constitution and the police power lies with the states. Subordinate to them, local governments. One of the reasons we have seen governors and mayors emerge over the last six, seven months as central actors in our pandemic. The police power goes to the states. It makes us different from lots of other countries around the world. It sure does. The federal government does have certain limited powers in terms of quarantining at the border and things that you talk about in the book. Potentially even to prevent a disease from going state to state. They have not really used that very much. You told us just to jump in. One could easily imagine a federal government that was much more ambitious than that. Using the power to have a much more, contrary to the history approach. We dont have anything like that right now. Neither president ial candidate is proposing to do either. No, of course. Biden is suggesting a mandate. The interesting thing here is, you know, there is a lot of discussion, is american federalism partly to blame for what seems to be a catastrophic failure per capita. We are certainly in the top five worst performing countries. Arguably in the top two. Look, this is because we have 50 jurisdictions plus hundreds of cities and counties in sheriffs we cannot function that way without a national leadership. Do you think that federalism has hurt us or has it been the great grand eyes laboratory of the states . Where we innovate. It is hard to say either way. The historians view is to say it has powerfully shaped our response. The federal government has a variety of powers that it could deploy. Very useful ways to help shape the United States response to the pandemic. It could help solve collective action problems when they are poorly situated to respond. In the acquisition of ppe, one could imagine the federal government taking a role there. That is a really useful example. A moment of a pandemic there will be regional variation. Having the capacity to have regionally differing rules is really quite useful. When you do that from the top or from the bottom, i think probably there are pluses and minuses. I dont know if i am the best to make that judgment. Ppe is a great example. We have had states competing for a price to guide ppe and ventilators and things like that. That seemed to be so counterproductive. There are federalist societies around the world that have performed very well, like germany, and some not so well. I guess that it is an open question. One of the things on top of a lot of peoples minds, former fda commissioner recently did an oped where he called for a National Math mandate. Biden himself has called for that. I wrote an article saying, hold on. Does america, because the president have the power to do that . This leads to a couple of things secondly, even if it was congress, do the Congress Powers justified . How could we get more uniformity nationally particularly with protective mechanisms that we are trying to promote . The president s biggest capacity. The power of the president to set an example to model, to encourage, to exhort. That is where the federal executive branch may have its largest power. There will be nice questions, find questions, complicated questions. Congress has the authority to pose a mask mandate across the board. Some of the proposals are narrow targeted mask mandates. Mask mandates and federal facilities. Mass mandates and interstate transportation. Things where the federal government has obvious authority according to traditional constitutional standards. I stepped back and say i think there are political constraints that i think will stop a National Mask mandate before we get to legal constraints. I just dont know if Congress Wants to be in the business of enacting a National Mask mandate when probably that kind of rule can be done pretty effectively at the state level is my own inclination. Set a good standard. That could be rough. May be, may we had clear messaging from the top about masks, it may do just the trick. We will have to see. A lot of people thought if everybody masked up we could save tens of thousands of deaths. Whether that will happen in the United States, i do not know. That will bring me to my next set of questions. We have talked about various traditions in the United States, in our history, from the colonial. Right on through to all the epidemics and now want to covid19. We talk about this tug. More than a tug. A real fight between individual rights, Civil Liberties on the one hand and the common good and population base. Health on the other. Most of us think and go on to refuse it historically. Most of us think that america is a place of individualism. It does seem that way now when we look at how we responded to covid19 as opposed to Asian Countries or even european ones. All of us in our history and all of us now. The virus brings out, in fact, rugged individualism is a kind of suicide pact. They understood that. Really quite powerfully. 1790s. The one in 10 residents of philadelphia died of yellow fever. We now have. 1 of the u. S. Population dying of covid in the last six months. I grew up in a neighborhood that was the federal governments evacuation place from philadelphia. So i grew up with this in some sense. Rugged individualism is a terrible way to deal with Infectious Disease. Collective authority through democratic processes to help communities flourish is really the opportunity. We had a myth in this country that freedom comes from the government staying out. In moments of epidemics, freedom comes from figuring out a way to work collectively through the government to give us all the resources, vaccines and the like that will help us flourish. That runs deep through American History. Deeper than rugged individuals. Of course, you know me and that speaks to my heart. I totally agree with you. There are others that say that Civil Liberties matter more. A civil libertarian because i was actually the head of the aclu and bid on the board here. Now here i am the pure common gutter and collectivist. As you seem to be. There is attention here. How do we get the balance right. You dont want Public Health to be a license for treading on liberties. Where can we draw the outline and how do we know that it is the right line . That is a great question. I think that there is a hopeful thread in American Court cases into the 20th century on just this point. We have a tradition of courts reviewing Public Health decisions and insisting that they be rational. That they be nondiscriminatory. That they proceed with the Democratic Authority of the legislature. That tradition has been a way in which judges have overseen really vital Public Health measures to prevent epidemics and minimize the damage without ever letting the individual rights to interfere with or block really vital Public Health measures that support the freedom of all of us. That tradition is one that really comes out strongly. You know the jacobson case. This is a case that still today stands at the proposition that states can mandate vaccination and adult members of the american population. Whether those adults want to be vaccinated or not. Whether they have a medical reason for getting out of the vaccine or not. That case, written by a really great justice on the u. S. Supreme court in 1905. That case announces that our freedom depends on our capacity to live together and to protect ourselves from disease. It does not stop there. You know this as well as anyone. It observes that there may be some situations where we will be arbitrations or particularly cool to administer a vaccine. I understand that. We will stay involved. We will oversee and pull lease and manage vaccine programs in the future. Not to block them. Not to stop them. Not to insert our preferences over the city of cambridge or state of massachusetts but instead to make sure that nationality and equality are respected. That is an important and glorious tradition. Do you think that it will hold up with the 63 conservative majority on the Supreme Court with Justice Barrett . There is a lot of conservative scholars saying, Public Health, you know, does not fly particularly in relation to your religious liberties and Even Economic liberties. I will drill down to the economic. Just a general sense now whether or not jacobson will be robust in this next decade. I think predicting that is a fool there. I will say it this way. Jacobson is a charter of civilization. A little bit like authorizing a military draft. States that want to survive, and international sense, the United States, nationstates, if they want to survive they have to be able to do the things that require responding to emergencies. A well done military draft may have a narrow revision. Judges are in a good position to manage that question. Wanting to survive the pandemic and take the steps to mandate the vaccine. Indispensable to our survival. I hope that it will survive. I love year term charter of civilization. I agree entirely. If we are going to survive as a healthy nation, we need to, as a collective, protect each other and no better example of that is an epidemic