Perspectives in Biology and Medicine

This article is a response to Richard Epstein's recent legal and economic critiques of contemporary public health law. The power of Epstein's critical position stems from the convergence of three problems, each with distinctive intellectual histories: (1) an age-old debate within political liberalism about the proper relationship of individual right and state power; (2) a somewhat more recent biomedical policy contest over the necessary scale and scope of public health interventions in modern societies; and (3) an ongoing legal-jurisprudential argument about the overall trajectory and implications of American constitutional history. My critique of Epstein's position follows this same tripartite format, moving from an initial discussion of the history of liberalism to the history of public health and, finally, to a critique of Epstein's general legal history of state regulation in America.