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Tag: Lawrence Friedman

Public Health Policy: At the Intersection of Law and Medicine.

By MIKE MAGEE

As 2025 kicks off, it’s wise to pause, and gather our thoughts as a nation. Few would argue that we’ve been through a lot over the past decade. And quite naturally, we humans are prone to blame individuals rather than circumstances (most of which have been beyond our control) for creating an environment that feels as if it is unraveling before our eyes.

How should we describe our condition – dynamic, tense, complex? Is peace, contentment, and security achievable in this still young nation? Have accelerationist technocrats, armed with bitcoins and Martian fantasy, short-circuited our moment in time that had been preserved for recovery from a deadly pandemic that eliminated a million of our fellow citizens seemingly overnight?

Who do we turn to for answers, now that we’ve largely lost faith and trust in our politicians, our religious leaders, and our journalists? And how exactly do you create a healthy nation? Certainly not by taking doctors and nurses offline for miscarriages, and placing local bureaucrats in exam rooms. Are they prepared to deal with life and death decisions? Are they trained to process human fear and worry? Do they know how to instill hopefulness in parents who are literally “scared to death” because their child has just been diagnosed with cancer? It certainly must require more than a baseball cap with MAHA on it to heal this nation.

Historians suggest this will take time. As Stanford Professor of Law, Lawrence M. Friedman, wrote in A History of American Law, “One hundred and sixty-nine years went by between Jamestown and the Declaration of Independence. The same length of time separates 1776 and the end of World War II.”

During those very early years that preceded the formal declaration and formation of the United States as a nation, our various, then British colonies, fluidly and independent of each other, did their best first to survive, and then to organize into shared communities with codified laws and regulations. It was “a study of social development unfolding over time” impacted by emotions, politics and real-time economics. At the core of the struggle (as we saw with the pandemic, and now the vaccine controversy) was a clash between the rights of the individual and those of the collective community.

This clash of values has been playing out in full view over the past five years of the Covid pandemic. In 2023, Washington Post columnist, Dr. Leana Wen, asked, “Whose rights are paramount? The individual who must give up freedoms, or those around them who want to lower infection risk?”

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Coverture – Could History Repeat?

BY MIKE MAGEE

All eyes were on Wisconsin – not last week, but in 1847. That’s when Wisconsin newspaperman and editor of the Racine Argus, Marshall Mason Strong, let loose in a speech on the disturbing trend to allow women the right to buy and sell property. It seems the state had caught the bug from their neighbor, Michigan, which was considering loosening coverture laws.

“Coverture”  is a word you may not know, but should. It was a series of laws derived from British Common Law that “held that no female person had a legal identity.” As legal historian Lawrence Friedman explained, “Essentially husband and wife were one flesh; but the man was the owner of that flesh.” From birth to death, women were held in check economically. A female child was linked by law to father’s entitlements. If she was lucky enough to be married, she lived off the legal largesse of her husband. They were one by virtue of marriage, but that one was the husband, as signified by taking his last name.

The practice derived from British law. Women were held in matrimonial bondage in England with the aid of ecclesiastical courts and the officiating presence and oversight of an Episcopalian clergyman. This meant control over getting married as well as well as the capacity to escape a marriage marred by abuse or desertion. Not that there was much call for divorce. Britain was a divorceless society. The richy rich occasionally could be freed by a special act of Parliament. But this was exceedingly rare. Between 1800 and 1836, there were less than 10 divorces granted per year in England. For the unhappy rest, it was adultery or desertion.

The divorceless society held for the first half of the 19th century in most of the states below the Mason-Dixon line, with South Carolina being the most restrictive. But every New England state had a general divorce law before 1800, as did New York, New Jersey and Tennessee. “Grounds” (which varied from state to state) were presented in an ordinary lawsuit by the innocent party.

Demand for divorce grew as America grew in the first half of the 19th century. With mobility came hardship and “odious abuse’, and increasing recognition that “a divorceless state is not necessarily a state without adultery, prostitution and fornication. It is certainly not a place where there are no drunken, abusive husbands.” And then there was the issue of property rights and its ties to economic growth in this still young nation.

America was rich in land, which rapidly translated into a fast-expanding smallholder middle-class. Relationships could shift on a dime, resulting in property disputes and threats to the legitimacy of children and one’s heirs. The numbers of land owners, fueled by westward expansion were enormous, and each had a stake in society. When push came to shove, economics won out over Puritan instincts – but not without a fight.

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