Legal Memories and Amnesias in America's Rhetorical Culture by Marouf Arif Hasian

Author:Marouf Arif Hasian [Hasian, Marouf Arif]
Language: eng
Format: epub
Tags: Political Science, General
ISBN: 9780429721625
Google: zNlGEAAAQBAJ
Goodreads: 59316422
Publisher: Routledge
Published: 2021-11-28T00:00:00+00:00

5

"Typhoid Mary," Bacteriology, and Progressive Law Courts

DOI: 10.4324/9780429037412-5

In previous chapters, I have tackled some of the issues that are involved in moving away from orthodox studies of American constitutionalism, civil rights, and even natural-law theories of justice. Using a combination of synchronic and diachronic analyses, I have defended the need to look at the vernacular rhetorics in a critical legal approach to both the "rule of law" and "justice."

In this chapter, I will broaden the scope of my inquiry even further and look at the intimate relationship that exists between power, medical knowledge, and law. More specifically, I am interested in illuminating the ways that legal rhetorics influence our everyday notions of public health and safety. Once again we are on treacherous terrain, because now we are entering other spheres that intersect with legal studies—the natural and social sciences—spheres that take pride in their ability to distance themselves from mere rhetoric.1 Yet as I will show throughout this chapter, the social acts involved in the fabrication of identities have both legal and medical dimensions.

In order to substantiate these controversial claims, I begin my inquiry by looking at the case of "Typhoid Mary." In the spring of 1938, a woman by the name of Mary Mallon lay dying in a hospital on a remote island outside New York City. Although she never was convicted of any crime, she had been held in detention for more than two decades on North Brother Island by the New York City Department of Health. Authorities never learned her exact age or her place of birth, but public health officials, scientists, academicians, and laypersons would remember her by the moniker "Typhoid Mary."2 Accused of having caused at least fifty-three cases of typhoid fever,3 Mary Mallon would find herself in the 1910s in the middle of a welter of legal, medical, and social controversies.

For more than half a century afterward, Mallon's story was sunk in obscurity, far from legal scrutiny and public view, with only occasional interest being shown in retelling her tale.4 With the virtual eradication of many infectious diseases after World War II—for example, polio, smallpox, and typhus—the legend of Typhoid Mary was reduced to an anecdotal footnote in the larger history of the development of public health law. Yet beginning in the 1980s, Americans witnessed the arrival of new diseases like AIDS, and communities now find themselves coping with illnesses and fevers that they thought were primarily the concerns of the developing world. These societal changes have brought a resurgence of interest in understanding how other eras and other communities have dealt with restrictions on civil liberties during emergencies, how they have implemented procedural rules for the detention and quarantine of disease carriers. As a result, America seems to be facing what Roy Porter has called "the endless return of the ghost of Mary Mallon in the media and popular memory."5

Mallon's tale has much to tell us about the rhetorical nature of what societies characterize as "illness" and health." "There is no single truth

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