By Dr. James W. Finck

Theodore Roosevelt’s 1904 presidential address to Congress is famous for bringing us the Roosevelt Corollary, which warned European nations from involving themselves in the affairs of Latin America. What is not as well-known is a small paragraph sandwiched between two other issues. In the address Roosevelt said: “It is desirable to enact a proper national quarantine law. It is most undesirable that a state should, on its own initiative, enforce quarantine regulations which are in effect a restriction upon interstate and international commerce. The question should properly be assumed by the government alone. The Surgeon-General of the National Public Health and Marine-Hospital Service has repeatedly and convincingly set forth the need for such legislation.” As early as 1905, years before the now famous Spanish Flu, and over a century before our current crisis, the government and the states already were arguing over jurisdiction and legality for public health.

Before the Spanish Flu or COVID-19, southern Americans feared Yellow Fever epidemics that sprung up every couple of years. States like Louisiana suffered many of the same calamities we have today as people became so sick that businesses began to fail and their lives were turned upside down. It was estimated that the Louisiana economy suffered the loss of hundreds of thousands of dollars in those years.

Believing the fever was spread by germs, the state and towns’ boards of health did all they could to prevent the spread by ordering quarantines of towns and homes where the disease was, making it difficult to conduct business in such towns. As the numbers of dead reached into the thousands, contagious cities could not even hold funerals as the dead were rushed away too quickly for burial before the contagion could spread. Another way to stop the spread was to order every ship entering the state to be checked and cleared by medical personal. Ships suspected of fever were quarantined for 10 days before they could continue up river.

During this time, the federal government, under the Marine Hospital Service instituted in the John Adams’ administration, tried to coordinate with the Louisiana state health boards. The problem was the national health boards were being blocked by similar state health boards. Not far removed from the Civil War, the gulf coast states did all they could to boost their own quarantine laws so as to reject national help and push out any federal oversight.

The year 1897 was a particularly bad year for Yellow Fever and New Orleans’ solution was basically a shelter in place order and quarantine for anyone suspected of infection. They even put guards at homes containing Yellow Fever. The city split in two over the decision. Some, including prominent doctors, argued that keeping people in their homes surmounted to imprisonment without trial. They wanted quarantines limited to those who showed symptoms only. The state board disagreed. The board argued Yellow Fever was simply too dangerous to allow people to congregate. The board recognized the injury to workers and business, but insisted credit was made available to assist them.

In 1898, just a year after the deadly epidemic, a French ship, the SS Britannia, carrying mainly Italian passengers arrived in Louisiana. That arrival led to an important legal precedent for quarantines.
All 408 passengers cleared the state-run quarantine center and made their way up river. However, when they reached New Orleans they were informed of a new decree meant to stop the spread of Yellow Fever. The decree forbade the passengers entry into the city or any other city in the quarantine area. The ship’s owners tried to get a judge to block the decree, but were denied. The ship ended up taking their passengers to Florida. The ship’s owners, trying to sue for redress, took their case to the Supreme Court in what became known as the 1902 Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health Case.

The high court sided in favor of the Louisiana Board of Health and ruled quarantines fell under the authority of state’s police power to protect their state. The judges used as part of their argument the 1824 Gibbons v. Ogden Supreme Court case. That case not only helped define quarantine laws in Louisiana, but effects the federal government today when dealing with COVID-19.

This was a commerce case dealing with interstate shipping. Chief Justice John Marshal said that the Commerce Clause in the Constitution gave the federal government power over shipping on rivers that were interstate. However, he also said the 10th Amendment to the U.S. Constitution limited police powers to the states, including quarantine powers. If Congress or the Trump administration attempts a national quarantine, they would run into issues with the courts because of Gibbons v. Ogden. However, the Gibbons ruling, combined with the Louisiana Board of Health decision, gives the states’ power to do so.
What we saw in the beginning of this article was, however, a push for a national quarantine law in 1905. The idea for federal quarantines started becoming popular in the 1880s with the progressive movement and a large influx of immigrants. Knowing the government could not replace state quarantine laws, they focused on quarantine of immigrants. Laws passed in 1891 and several later years even put a 40-day quarantine of ships knowing the price it would cost the shipping companies. Most states supported this decision; one that did not was Louisiana. The Federal government by 1906, using the Commerce Clause, had established a federal quarantine for international and interstate travel. Yet, the role of local quarantines still resided with the states, and the laws differed state by state.

This was the situation in 1918 when the devastating Spanish Flu ravaged the world. The federal government could control entrance into the U.S., but it was up to the states to contain the virus within their borders. The Spanish Flu took the lives of around 675,000 Americans and created a situation not unlike ours today. It was during this time towns and states took unprecedented steps to stop the spread of the flu.
To try to curb the spread, or as we say today flatten the curve, they not only issued quarantine orders, but mandated stay at home orders. In my own state of Oklahoma, local principalities like Sapulpa, OK began to mandate stay at home orders. However, like today, eventually the State got involved with its own orders, to the ire of Sapulpa. On October 18, 1918 Dr. John M. Duke, the state health officer, ordered all schools, theaters, and other places of gathering closed. He went on to say, “All gatherings of more than 12 persons must be avoided. People do not seem to realize that the influenza is extremely infectious and is an extremely dangerous disease.”

“This is a great mistake and has done much harm to speak of this disease as the “Spanish Flu” because it is not a disease to be taken lightly. The present epidemic is the worst that has been known for a century, with the possible exception of the epidemic of 1889-90, and it must be remembered that the present epidemic is still at its height.”

“It must be borne in mind that in a considerable portion of cases the influenza tends to turn into pneumonia. When pneumonia developed form influenza the death rate is about 45 percent. By comparison with almost any other disease, this death rate is extremely heavy.”
A similar statement was reported in another paper. This time Duke said, “Had not the statewide quarantine been imposed, the epidemic would have been deadlier. This is not theory, but amply proven by comparing the experiences of localities which were quarantined and those which were not”

The Sapulpa Herald called the state action drastic. The town had planned to reopen schools and churches the next day believing the spread of the disease had been curbed. They did not like the fact that the state government overstepped their bounds.

They did not have to wait long for redress. About three weeks after the state quarantine was issued it was retracted on November 9. The Norman Transcript newspaper in Norman, OK opened their story with one that would probably sound familiar today:

“Much to the displeasure of the school children, possibly, but to the extreme satisfaction of almost everyone else in the state, the influenza quarantine order…will be lifted…There has been a great deal of inconvenience caused by this quarantine, at least until we became accustomed to it. We have now been quarantined longer than three weeks, I wonder if any of us feel accustomed yet?”

Now, it’s 2020. Just like in Roosevelt’s day, there are those calling for national quarantine laws to fix our current situation.

I am far from a constitutional lawyer, but from what I can tell any federal national quarantine effort will never get past the courts. There is too much precedent leaving that remedy to state policing power. The federal government can make laws such as they did when banning Chinese travel to the US, which by the way the U.S. has done plenty in past epidemics.

A real question for today, however, is can state governments shut down healthy businesses during a pandemic? Clearly, they can quarantine those sick or suspected of being sick. The Supreme Court has ruled in favor of that.

What is not clear is can they stop all businesses and churches from functioning and force social distancing? It is alluded to in Louisiana and was clearly done for about three weeks in 1918, but there is no evidence of the rule ever being challenged. There is a case in California where the First Church of Christ Scientists sued for the right to practice. Four members of the church board were arrested with hopes of getting a court decision in their favor. It is difficult to find more information on the case, but from newspaper accounts the charges were dropped on the groups because closing their church was unconstitutional. Yet the order to close churches continued to be enforced.

I am not saying there were not more challenges; I just found no evidence of it. There are possible issues with the First Amendment rights of religion and assembling. So, historically speaking, this controversy is, once again, really nothing that we have not seen before. The biggest difference may end up being in scope and, if this goes on much longer, there could possibly be legal challenges to the states’ authority to keep everyone in their homes.

Dr. James Finck is a Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. Follow Historically Speaking at www.Historicallyspeaking.blog or on Facebook.