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Mohr’s book—Licensed to Practice: The Supreme Court Defines the American Medical Profession—tells a compelling tale of powerful personalities who shaped the way medicine is practiced today.

In detailing the story of the first effective medical license law, he depicts “one of the most profoundly significant events in American medical history.”

Read the Introduction, Prologue and Chapter One:

INTRODUCTION

Americans in the twenty-first century accept without question the assumption that doctors must be licensed to practice medicine. But that, of course, has not always been the case, especially in the United States. Under the Constitution, medical license laws had to be passed one at a time on a state-by-state basis, and not until the 1870s did any states begin to experiment in a meaningful manner with various forms of medical regulation. Far from seeming self-evidently beneficial at that time, the nation’s early license laws provoked intense disagreements, both among physicians themselves and within state legislatures. Some doctors and policy makers openly opposed medical licensing; many others fought exceedingly bitter battles over what the requirements for a medical license ought to be.

In the early 1880s, West Virginia became the first state to enact and effectively implement a genuinely restrictive medical license law. That statute stipulated specific educational standards necessary for obtaining a license and imposed criminal sanctions against anyone practicing medicine without a license—the two cardinal principles that continue to undergird modern medical license laws today. Doctors who disagreed with those stipulations challenged the West Virginia law in court, first at the local level, then at the state level, and finally before the Supreme Court of the United States. While some people regarded the new law as a progressive reform designed to advance the nation’s medical care and protect the health of the people, others saw it as a violation of constitutional principle based on disingenuous premises. For the future of American physicians, the stakes could hardly have been higher.

This book tells the story of that first effective medical license law: who fought to pass it, who opposed it, how it got through the legislature, how it was implemented, why it was challenged, and why the Supreme Court’s resolution of the intense disputes it provoked proved to be one of the most profoundly significant events in American medical history. Though seldom mentioned in either medical histories or legal histories—and virtually unknown to most people—the high court’s 1889 decision in the case known as Dent v. West Virginia provided constitutional ratification for nothing less than the conscious formation of a new profession in the eyes of the law: that of licensed physicians.

Even had the Dent case not produced such an important Supreme Court decision, the story behind it would be well worth telling. It is a riveting tale full of powerful personalities, intense emotions, professional ambitions, political dynamics—even a murder. The story behind this case also offers a look in microcosm at the effort of elite physicians to reengineer their place in American society during a crucial period of unprecedented economic reorganization and corporate consolidation in the United States generally. Once the Supreme Court ratified the West Virginia model, physicians were free to fight for similar license laws elsewhere, which resulted in decades of strikingly similar—if usually less dramatic—confrontations and policy battles in other states.

Collectively, the laws that followed West Virginia’s model eventually transformed the practice of medicine throughout the United States from an unregulated occupation into a governmentally sanctioned profession. That transformation rationalized a previously chaotic medical marketplace and placed American medical practice on a rigorously scientific foundation. But that great transformation—surely the most significant development in American medical history—was neither smooth nor somehow predetermined. It would eventually produce a unique medical structure that resulted from conscious policy decisions like those made first in West Virginia. And even though the nation’s system of medical licensing emerged at the state level, it could not have emerged at all without the imprimatur of the United States Supreme Court.  

 PROLOGUE

On Saturday morning, March 7, 1891, Dr. George Garrison encountered Dr. George Baird near the busiest intersection of downtown Wheeling, West Virginia. They were by far the two best-known physicians in the city. Baird, a popular and prominent Civil War veteran who had once been mayor of Wheeling, was one of the most professionally successful and politically influential physicians in West Virginia history. A decade earlier Baird had been instrumental in securing passage of a law that created the West Virginia Board of Health. Both Baird and Garrison had served terms as gubernatorial appointees on that new state board during the 1880s. A generation younger than the sixty-two-year-old Baird, thirty-nine-year-old Garrison also enjoyed a flourishing medical practice in the city and was well regarded by the general public. Garrison was in the middle of his second four-year term as Wheeling’s popularly elected city health officer, a post that allowed him to campaign for cleaner water standards and voluntary vaccinations at public expense.

Dr. George Garrison demonstrating how he shot Dr. George Baird. Wheeling Daily Register, May 21, 1891.

Following a brief exchange of harsh words that morning, Garrison pulled a pistol from under his coat and fired two shots at Baird, who had just turned to tether his horse only a few feet away. One bullet entered the older man’s skull below his ear and emerged through his left eye; the other plowed through his chest, severing a major artery before embedding itself in Baird’s shoulder blade. Amazingly, with blood pouring from his eye socket, Baird managed to stagger into the nearest store. Once inside, he quietly removed his gloves and informed the stunned shoppers that Dr. Garrison had shot him. The proprietor of the shop helped Baird lie down on a table, where the influential doctor was pronounced dead twenty minutes later. Outside, Garrison turned to a passerby and said, “It’s done,” and then calmly repocketed his revolver and walked in a measured manner around the block to the city police building. There he told the astonished officer on duty that he had just shot Dr. Baird and had come to surrender himself.

Garrison and Baird had once been close personal and professional friends. Baird was already a well-established doctor in 1869 when Garrison arrived in Wheeling as an eager, young would-be physician. The older man had taken the younger man under his tutelage as an apprentice, which was the dominant form of medical training at the time. Many people regarded their relationship as surrogate father and son. When Garrison married and had a son of his own, he named the boy in honor of Baird, his generous senior mentor. Baird, in turn, paid for Garrison to attend Jefferson Medical College, the school from which Baird himself had graduated, so the younger man could obtain a formal MD degree after his initial training. In short, their bonds had once been as strong and as close as might reasonably be imagined.

Disagreements over medical licensing, however, subsequently drove the two doctors apart—for reasons that will become clear in the story that follows. Fortunately, such disagreements did not lead to widespread violence throughout the medical profession; the lethal outcome in this case was personal and idiosyncratic on both sides. The two doctors’ intense animosities over the issue of licenses had been building for five years, and the citizens of Wheeling knew that Baird regularly greeted Garrison in public with taunts, threats, and vicious personal insults. That this incident took place at all, however, is strong evidence of the intense emotions and high stakes involved in the transition from open market medicine to licensed professional practice in the United States.

PART ONE — CHAPTER ONE
Medical Regulation in the United States through the Civil War

The Tenth Amendment to the United States Constitution declared that powers not delegated to the national government were “reserved” for exercise by the several states, or put differently, areas of public policy not specifically addressed in the Constitution were considered to be the domain of state-level legislators, not the national Congress. State legislators, in turn, could delegate their authority to local jurisdictions if they wished to do so. With few exceptions through the middle of the twentieth century, policies involving medicine and public health remained among those reserved powers and hence were hammered out on a state-by-state basis. Even today, both physicians and hospitals are still licensed by the separate states, not by the national government, and different states maintain different criteria for doing so.

States began exercising their reserved powers over matters pertaining to health soon after the Constitution went into effect. Through the first two-thirds of the nineteenth century, civil authorities often intervened directly in the marketplace by ordering the removal of foul nuisances and the relocation of businesses thought to be unhealthy for their nearby neighbors. Among other things, state and local officials also enforced ad hoc quarantines, employed physicians to care for the indigent poor, imposed regulations on the burial of the dead, and provided smallpox vaccination material at public expense. Maintenance of asylums for the mentally ill was the largest single item in the budget of some states by 1850. In short, from the early days of the Republic, lawmakers in the separate states paid attention to public health, as they understood it, and they did not hesitate to take measures to preserve and protect it. (1)

In sharp contrast to their active exercise of power in some areas of public health, however, those same American state legislatures consistently refused throughout the first two-thirds of the nineteenth century to require people practicing medicine to obtain a license. Consequently, anyone in any state who wished to enter the healing business was free to do so, and free also to style themselves “Dr.,” regardless of their credentials or lack of credentials. Moreover, they were free to base their medical practices on whatever theories they wished to adopt and free as well to administer any therapies they thought might work, provided of course that the patient agreed to them. While the unwillingness to curb that open market in medical care seems downright irresponsible to modern Americans, it was not. It was a reasonable response to the practical realities of health care in the United States during the nineteenth century.

At least through the outbreak of the Civil War in 1861, almost all Americans routinely treated themselves and their family members for medical situations they were familiar with. Most families had a stock of standard procedures and home remedies passed along by earlier generations or borrowed from the experience of friends and neighbors. Most people also supplemented those procedures and remedies with advice they read in home health manuals. Self-help medical books of many different kinds were widely available throughout the United States, and they sold briskly. Only for acute, persistent, or clearly threatening health problems did people typically consult a physician. When they did so, they faced bewildering choices.

Through 1861, relatively few physicians in the United States had much formal education, let alone MD degrees from well-regarded institutions. Instead, the vast majority of actively practicing doctors had been trained by serving apprenticeships of varying lengths under the guidance of established physicians. They typically augmented those apprentice experiences by reading whatever medical textbooks were available to them, though the lessons and admonitions in one textbook often conflicted with those in the next. Some physicians also attended a course or two of lectures at one of the nation’s many small and completely unregulated medical schools, often without staying long enough to graduate. Both the quality and the content of those courses varied enormously. Many physicians practiced only part-time, while also pursuing another occupation that provided the bulk of their livelihood. Between one-half and two-thirds of their bills remained unpaid at any given time, and payments frequently came in kind rather than in cash. Every doctor had a repertoire of tales involving long travels under miserable conditions to attend nearly impossible cases for little or no money—and most of those tales were probably true. (2)

Between two-thirds and three-quarters of American physicians through 1861 practiced some approximation of what they understood to be the standard procedures and accepted therapies taught in the nation’s longest-standing and most prestigious medical schools. Collectively, these essentially generic doctors were known as “Regulars,” a label they had applied to themselves. Regulars regarded themselves as the modern inheritors and contemporary interpreters of classical medical theories and learned medical traditions that stretched back to the Greek Hippocrates and the Roman Galen. Regulars had also organized and incorporated the vast majority of the nation’s state and local medical societies, where they had opportunities to exchange useful information, present papers, discuss case reports, seek advice, and publish articles in medical journals.

The foundation of Regular practice had long rested upon the ancient concept of balance. In each human body, according to classical texts, four principal “humors”—blood, black bile, yellow bile, and phlegm—were thought to exist in a delicate relationship to one another. Whenever any of the four was either abnormally augmented or abnormally depleted, for example, by getting overheated or sleeping in the cold, ill health could result. To restore health, Regular physicians first tried to rid the body of contaminants by the use of various “purges, pukes, and sweats,” many of which were convulsively violent. A patient might be miserable in the short run but surely had the satisfaction of knowing that the doctor had administered “strong medicine.” Once the body was thoroughly cleansed, physicians then tried to correct the perceived imbalances. Those corrective therapies were administered on an individual basis according to specific characteristics such as age, gender, race, region, and season; and they ranged from dietary supplements and alcohol stimulants to bleeding, which was thought to reduce fever by bringing temporarily excessive blood supplies back down to normal levels.

Known as “heroic” therapies, those long-standing treatments were legendarily distasteful to the general public, and patients certainly thought twice before submitting to such often painful and unpleasant procedures. During the first half of the nineteenth century, many Regulars themselves also began to view the old heroic therapies with increasing skepticism, and a few leading Regulars—including some of the nation’s most highly regarded medical educators—openly denounced the most violent applications as counterproductive and barbarous. (3) As a result, many ordinary Regulars began to turn away from the old heroic procedures, or at least to use them less frequently by the middle of the nineteenth century. Case books and hospital records from the middle decades of the nineteenth century confirmed the growing tendency of Regulars to administer less violent emetics than the ones their immediate predecessors had used, along with the complementary tendencies to prescribe fewer depleting agents and more restorative substances. (4)

Even as the Regulars began to turn away from heroic therapy, rapidly developing fields such as chemistry and physiology began to produce laboratory results that had far-reaching implications for the understanding of medical biology. Pathological anatomists began to discover how various organs functioned and how they failed. A rising interest in medical jurisprudence and forensic medicine forced physicians to clarify their understanding of such diverse subjects as conception, gestation, and poisoning. (5) Collectively, those new discoveries began to undermine the Greek and Roman theories that had sustained mainstream Western medicine for millennia. This left many ordinary Regulars disillusioned or frustrated, without effective treatments to replace their traditional procedures, and without a firm theoretical basis for developing more effective alternatives. They found themselves facing an uncertain situation that came to be characterized as “therapeutic nihilism.”

For many mainstream Regulars, the most promising way out of their midcentury dilemma lay in a forward-looking commitment to science rather than a backward-looking acceptance of what was thought to have worked for past generations. Exactly what midcentury American Regulars meant by science was unclear and varied greatly from physician to physician. But for most of them a scientific approach to medicine involved paying attention to what could be objectively demonstrated, as distinguished from what fit existing theory or inherited wisdom; adopting a systematic and rational approach to therapeutic care, as distinguished from making an endless sequence of ad hoc judgments in each particular case; and applying new laboratory findings to medical practice, as distinguished from simply repeating procedures learned as an apprentice. Regular medical practice, in the words of the leading historian of these developments, increasingly shifted away from the concept of the “natural” toward a concept of the “normal,” and away from the “individualization” of every case separately toward the application of generalized treatments based upon the assumption that all patients shared a large degree of biological “universalism.” (6) Above all else, science offered hope, a belief that medical progress was possible.

While many ordinary Regulars were beginning to look to scientific research for help in combating the frustrations they faced in everyday practice, a minority of the nation’s physicians diverged even further from traditional Regular medicine and embraced philosophically different approaches to healing. Some of those new approaches gained enough followers to support formal organizations of their own. All of the institutionalized alternatives explicitly rejected one or more aspects of traditional Regular medicine and developed systematic theories and therapies based on widely varying assumptions about the causes and cures of disease. During the first half of the nineteenth century, those formal alternatives included— among others—the Thomsonians, who advocated an every-man-his-own-physician ideology and the administration of a few easily gathered herbs; the Botanics, who also championed herbal medicines but trained physicians to identify and administer a far wider variety of them; and the Hydropaths, who claimed to restore health by administering water in various ways at various temperatures. (7)

Those three non-Regular medical sects were not trivial sideshows: Thomsonians at their height in the late 1830s claimed tens of thousands of local agents throughout the country. Botanics had established their own medical colleges by the 1840s and published their own national medical journals. Hydropaths not only published one of the best-selling popular magazines of the 1850s but also maintained an extensive string of water-cure spas throughout the nation, which were particularly popular with women. By 1861, however, two other groups had emerged as the most influential alternatives to Regular medicine: the Homoeopaths and the Eclectics.

Homoeopathy had been introduced into the United States from Germany in the late 1820s. Homoeopaths based their therapies on the theory that “like cures like”; hence they administered substances to sick people that would evoke symptoms similar to what they were experiencing in a person who was well. Hot peppers, for example, might be used against fever. The most doctrinaire of them further believed that those substances, when sufficiently agitated, could be administered in tiny—often absurdly minute—dilutions. While those substances were supposedly acting inside the body, patients were kept comfortable and given foods and beverages that restored strength. Adding to the appeal of the Homoeopaths was the fact that many of them were well educated in their own medical schools and typically knew as much about the human body as Regular MDs did. Many Americans, especially among the educated upper classes, found the benign approach of Homoeopathy far more appealing than the heroic therapy of the Regulars, and Homoeopathy boomed in the United States during the middle decades of the nineteenth century, particularly in the industrializing belt from the Mid-Atlantic states on across to the upper Midwest. In 1844, Homoeopaths in Philadelphia organized the nation’s first national medical association, and in some states elected legislators pressed their state medical colleges to teach Homoeopathic medicine as well as Regular medicine. (8)

Eclectics, as their name implied, were open—with one important exception—to any and all therapies that seemed to produce results, whether or not they fitted known theories of disease. As the functional inheritors of earlier Botanic traditions, however, they adamantly opposed the administration of toxic chemical and mineral preparations, precisely the substances widely employed in Regular medical purging. Eclectics instead favored more gentle herbal potions and preparations, which—like the Homoeopaths—they combined with rest and restoratives. Some Eclectics were also reasonably well educated in their own separate medical schools, particularly in matters pertaining to medicinal plants. Eclectics could be found in formidable numbers all around the country but did not dominate practice in any one state. (9)

In addition to formally organized alternatives to traditional Regular medicine, a wide array of unorganized practitioners and quasi-physicians of many other sorts dotted the medical landscape of the mid-nineteenth century. Self-styled oculists treated eye ailments and made glasses; itinerant “cancer doctors” crisscrossed the countryside excising skin eruptions; countless individuals devised and sold potions and salves for almost any imaginable condition; and apothecaries prepared and prescribed their own medicines. “Indian doctors” claimed to possess indigenous Native secrets; faith healers promised transcendent cures; electromagnetic doctors extolled the healing properties of electricity; and neighborhood bonesetters treated fractures. In addition to attending births, regional midwives also provided medical care for women and infants. Column after column of the nation’s daily newspapers advertised mail-order remedies and medical services, many of which were thinly veiled offers to deal with sexually transmitted diseases and reproductive problems. In short, notwithstanding the willingness of lawmakers to address other matters of public health, the practice of medicine in the United States remained a crowded, chaotic, and wide-open field through the beginning of the Civil War.

From the early decades of the Republic, the dominant Regulars, especially those who held formal MD degrees from mainstream medical schools, had repeatedly called upon state lawmakers to intervene in this increasingly diverse medical marketplace by requiring anyone who practiced medicine to obtain a license certifying their fitness to do so. They claimed that the ministrations of untrained practitioners were physically dangerous to the public, that charlatans were defrauding the ill-informed on many fronts, and that unscrupulous pseudodoctors were bilking the desperate by offering cures that could not work. In their view, the overall quality of medical care in the new United States would improve only when all physicians were held to what they regarded as their own high standards.

By 1830, lawmakers in several states responded to the Regulars by authorizing their state medical societies to issue licenses if they wished to do so. But even in those states, the same lawmakers refused to take the next key steps involved in any legally meaningful licensing system, the actions that would eventually lead to the Dent case in the 1880s: they refused to stipulate specific criteria for licensing and they were unwilling to deploy the criminal sanction of the state to punish people who practiced without one of those medical society licenses. The only advantage lawmakers in a few states were willing to grant physicians who held those society-based licenses was the right to sue for fees in state courts, a privilege they denied to unlicensed practitioners. But that was a hollow gesture, since suits for unpaid fees rarely succeeded. (10)

Thus, even before major rivals had arisen and coalesced into formal organizations, Regulars had been unsuccessful in establishing themselves as the exclusive agents of medical care. The licenses that some states had authorized them to hold were essentially honorific. That kind of imprimatur may have bestowed modest advantages in the marketplace—much as certification by a privately organized fraternity of organic gardeners might help sell vegetables at the local farmers’ market today. But those privately awarded licenses cost money to obtain and did not prevent others from competing freely without them. Consequently, fewer and fewer physicians bothered to obtain licenses that were essentially window dressing in the first place. When rival groups began to organize formally in the 1830s and 1840s, they successfully pressured most of the state legislatures that had initially authorized Regulars to issue their own licenses into repealing even that symbolic concession. (11)

In 1847, leading Regulars moved to counter the rising influence of organized alternative physicians by establishing a national federation of their state and local medical societies, which they called the American Medical Association (AMA). Though the AMA would eventually become the national umbrella organization of Regular medicine writ large, it was initially founded for the primary purpose of upgrading medical schools. In the face of increased competition and their own waning faith in traditional measures, AMA Regulars came to believe that their best hope for simultaneously maintaining their dominance in the American medical marketplace and improving American health care lay in embracing science, not only as a promising path toward improved therapies, but also as the new foundation for medical education. Even though the vast majority of their practicing colleagues were apprentice trained and had not mastered specific scientific fields in a formal way, the AMA pushed from the outset for the teaching of formal courses in anatomy, chemistry, physiology, and related subjects in their medical schools, not just courses on how to diagnose ailments, what to do in various situations, and how to apply accepted therapies. That commitment to formal training in science would become the cardinal tenet of Regular medicine and the principal rallying point for Regular physicians after the Civil War. (12)

Scientific education, they hoped, would also provide a basis upon which to elevate the legal standing of physicians. Regular doctors, especially those holding formal MD degrees, surely considered themselves professionals in a general or cultural sense. And so, for that matter, did many of the physicians practicing Homoeopathic and Eclectic medicine. Most ordinary Americans, in turn, also seem to have regarded physicians—at least the well-established ones—as professionals in a loosely social or perceptual sense. Nineteenth-century Americans routinely and axiomatically referred to the “profession” of medicine and to physicians as “professionals.” Elite doctors could thus claim to be professionals in a loosely rhetorical or cultural sense, and that status seems to have enhanced their standing in society. But even the most elite physicians could not claim to be professionals in the eyes of the law. With a few relatively unimportant exceptions, no American jurisdiction distinguished legally between the practice of medicine and any other wide-open occupation. Untrained country herbalists could set up a medical office in any town in the United States and compete for patients with the best-educated doctors. (13)

Indeed, through the 1870s, it can be argued that American law recognized only two occupational categories as professions: lawyers and military officers. Both had the legal right to determine for themselves who would be allowed to enter their occupation, so no one could plead a law case without the sanction of officially sworn courts, and commissioned officers were the only ones authorized to promote others. Both of those professions—precisely because they were legally recognized by the state—also possessed two other privileges that ordinary occupations did not. The first was the right to assess and police their own performance. Lawyers answered to judges for their professional behavior; military officers had their own system of courts-martial. The second was the right to be rewarded for their efforts per se, not for the result of their efforts. A lawyer, for example, was entitled to the same fee, whether the client won or lost; a military officer could be promoted for fighting skillfully, even though his side suffered a temporary defeat.

Some scholars might include clergy as a third legally recognized profession in nineteenth-century America, since clergy exercised some quasi-governmental authority (such as the right to perform marriages), and in some jurisdictions they enjoyed special privileges (such as exemption from militia duty). Moreover, clergy were certainly judged on their efforts, not the result of their efforts, since neither the damned nor the saved could return from the dead to attest to clerical effectiveness. But the nation’s many separate private denominations were free to choose their own clergy by whatever criteria they wished, without state sanction, and importantly, persons recognized as clergy by one denomination were not permitted to deploy the criminal sanction of the state against others who wished to be recognized as clergy on alternative theological bases.

Physicians committed to the AMA agenda clearly recognized the difference between being professionals in a cultural sense, on the one hand, and having the powers that went with legal recognition, on the other; and they realized that the former ultimately meant little in the open marketplace of the American Republic. They knew they could not by themselves impose their standards upon everyone who wanted to practice medicine; they knew they could not by themselves make non-Regular medical practice a criminal offense; and they knew they could not by themselves absolve their colleagues from the standard obligations imposed upon other occupations, such as the responsibility for outcomes. To simultaneously transform the practice of medicine into a legally empowered profession and eliminate their intraprofessional rivals, leading Regulars realized they needed the state. Consequently, often working through the AMA or its constituent state medical societies, they renewed campaigns designed to persuade their state lawmakers that anyone practicing medicine should be required to hold a license. And, of course, they wanted those licenses to be based on criteria that would limit the medical marketplace to educated and science-oriented physicians like themselves. To their dismay, however, midcentury lawmakers continued to rebuff the licensing proposals they put forward.

Some Regulars blamed the lack of medical licensing in the United States on an irrational anti-monopoly mind-set prevalent among public policy makers, which had been blown out of proportion since the Jacksonian years. They castigated lawmakers for their inability—or cowardly unwillingness—to distinguish between efforts to advance the general welfare and attempts to acquire special privilege. Others blamed the lack of medical licensing on a pigheaded anti-elitism in the fiercely egalitarian American Republic, a sentiment they saw as shamefully exploited by political demagogues. Still others blamed the continuing lack of medical licensing in the United States on a pervasive anti-intellectualism in the nation’s nineteenth-century ethos, which made Americans suspicious of formal education and a priori credentials, as distinguished from practical experience. A number of historians subsequently accepted many of those Regular contentions.

While anti-monopoly, anti-elitist, and anti-intellectual dynamics surely influenced American policy makers, the primary reason why state legislators remained unwilling to enact exclusive license laws was far more straightforward: lawmakers had no objective criteria upon which to justify such licenses. Though Regulars dominated the medical marketplace and championed the study of medical sciences, they could not demonstrate that either their approaches to healing or their superior knowledge of the medical sciences produced better patient outcomes, at least in the realm of internal medicine, than a host of alternative approaches, including many associated with out-and-out folkways that had no theoretically formal or scientific basis whatsoever. Wildly different theories, therapies, and remedies all seemed to work quite well for some patients at some times and to have little or no effect on other patients at other times. Plenty of self-taught and self-proclaimed doctors seemed to do as well for their patients as the most rigorously educated Regulars with the most prestigious MD degrees. Homoeopaths, in fact, amassed a better record treating epidemic diseases in the 1840s and 1850s than the Regulars. (14)

Nor, despite their repeated assertions, could the Regulars produce evidence that their principal rivals were wreaking harm upon the public. A few near-criminal mountebanks no doubt peddled dangerous concoctions, and rogue practitioners occasionally performed dangerous operations they knew little about. But those were isolated cases, not cases systematically associated with particular approaches to medicine; irresponsible mistakes were as likely to be made by Regulars as by their rivals. Consequently, Regulars could not make compelling arguments in favor of exclusive licenses for themselves on the grounds that patient outcomes would be better for the general public; nor could they make compelling arguments in favor of exclusive licenses for themselves on the grounds that eliminating their rivals would make the practice of medicine significantly safer for the general public.

In retrospect, none of the diverse practitioners operating in the nation’s wide-open medical marketplace through 1861 could do much for their patients beyond the provision of what would now be called palliative care. And for palliative care, patients were arguably as well off—perhaps even better off—in the hands of a Homoeopath, an Eclectic, or a neighbor as they were in the hands of a rigorously trained Regular who followed the classical theories taught in the nation’s oldest and most established medical schools. The Homoeopaths, Eclectics, and neighbors typically administered diluted teas, herbal tinctures, or warm soups, while the Regulars typically continued to administer emetics, cathartics, and purges, even if they were using less violent agents than they once did and prescribing more restoratives. The teas, tinctures, and soups prescribed by non-Regulars and neighbors probably did little good, but they seldom did much harm either, and they usually allowed a patient to remain comfortable while the body healed itself.

The emetics, cathartics, and purges administered by the Regulars, in contrast, sometimes proved dangerously depleting, probably weakened the patient, and may well have retarded the process of self-recovery. Notwithstanding the Regulars’ turn away from heroic practices and ancient theories toward science and education, the most widely prescribed medication they administered to Union troops during the Civil War was a mercury compound that had powerfully cathartic effects. Voting delegates at the AMA’s national conventions continued to sustain their organization’s formal endorsement of therapeutic bleeding right through 1881, even though most Regulars had by then abandoned its use. Given those realities, state lawmakers had no rational bases upon which to establish medical standards, and hence no rational bases upon which to justify exclusive license laws. During the 1850s, in fact, not only were Regular-sponsored licensing proposals regularly rejected, but such key states as Louisiana, Massachusetts, and Michigan actually revived the older trend of repealing even their honorific license laws. (15)

Consequently, by the outbreak of Civil War in 1861, no meaningful medical license laws existed in any state. While the respective Surgeons General in that conflict tried to establish formal examinations for the appointment of military surgeons (as physicians were called) to their regular national army units, the vast majority of the roughly fifteen thousand men who served as military surgeons during the Civil War were appointed by state-level political officers to attend their own states’ regiments. Some of those state-level political officers also tried to examine physicians but had little basis for distinguishing among them. As one historian of Civil War medical care put it, American physicians at that time “simply did not form a unified community based on a shared training experience or body of medical knowledge.” And for many regiments, virtually any type of care was regarded as better than none. As horrific casualty rates continued to rise and more soldiers were being lost to disease than to combat, almost any practitioner of any kind could attain a medical appointment, provided he was willing to risk his life with the troops. A few who did so had no serious medical training whatsoever, though they gained a great deal of experience during the war and many continued in active practice afterward. State lawmakers in the North had far more important things to worry about than the legal status of doctors, including the survival of the constitutional system itself; and state lawmakers in the South were trying to grope their way through the chaos of conducting a massive rebellion. Under such circumstances, no state legislature spent time or energy during the war debating whether they should require licenses in order to practice medicine on the home front. (16)

When the carnage of the Civil War ended in 1865, therefore, the practice of medicine in the United States remained the same wide-open and unregulated occupation it had been since the American Revolution. But the nation’s leading Regulars had not abandoned their strong desire to upgrade the legal status of physicians. Once the Republic was restored, groups of Regulars in several states turned back in earnest to the project of trying to secure exclusive license laws. Encouraged more strongly than ever by the national AMA, Regular medical societies renewed their efforts to persuade their respective state lawmakers to limit the practice of medicine to physicians who shared their commitment to formal scientific education as the key to medical advancement. One of the most determined of those postwar Regular groups had the added advantage of operating in a uniquely promising arena: the brand new state of West Virginia, where political power was unusually concentrated and all public policies had to be worked out de novo. Yet even there they would not be able to realize their objectives as quickly as they hoped they might, and the ultimate ratification of their goals would require a decision of the United States Supreme Court.

From Licensed to Practice: The Supreme Court Defines the American Medical Profession, by James C. Mohr.  Published by the Johns Hopkins University Press. Reprinted by permission of the publisher.”

Footnotes

1. In general, see William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth- Century America (Chapel Hill, 1996); R. Rudy Higgens-Evenson, The Price of Progress: Public Services, Taxation, and the American Corporate State, 1877 to 1929 (Baltimore, 2003); John Duffy, A History of Public Health in New York City, 1625– 1866, vol. 1 (Russell Sage Foundation, 1968), and The Sanitarians: A History of American Public Health (Urbana, IL,1990); Barbara Rosenkrantz, Public Health and the State: Changing Views in Massachusetts, 1842– 1936 (1972); Charles E. Rosenberg, The Care of Strangers: The Rise of America’s Hospital System (Baltimore, 1987); and James C. Mohr, Doctors and the Law: Medical Jurisprudence in Nineteenth- Century America (New York, 1993). A great many more closely focused histories attest to numerous health- related policies implemented at the state, county, and local levels throughout the United States.

2. My composite portrait of mainstream medical practice through the Civil War draws primarily on William G. Rothstein, American Physicians in the 19th Century: From Sects to Science (Baltimore, 1972); John Harley Warner, The Therapeutic Perspective: Medical Practice, Knowledge, and Identity in America, 1820– 1885 (Boston, 1986); John S. Haller Jr., American Medicine in Transition 1840– 1910 (Champaign, IL, 1981); Joseph F. Kett, The Formation of the American Medical Profession; the Role of Institutions, 1780– 1860 (New Haven, CT, 1968); Paul Starr, The Social Transformation of American Medicine: The Rise of a Sovereign Profession and the Making of a Vast Industry (New York, 1982); James H. Cassedy, Medicine in America: A Short History (Baltimore, 1991); Morris Vogel and Charles E. Rosenberg, The Therapeutic Revolution: Essays in the Social History of American Medicine (Philadelphia, 1979); Charles E. Rosenberg, Explaining Epidemics and Other Studies in the History of Medicine (New York, 1992); Richard Harrison Shryock, Medicine and Society in America, 1660– 1860 (New York, 1960); Whitfi eld J. Bell Jr., The Colonial Physician and Other Essays (New York, 1975); Henry B. Shafer, The American Medical Profession, 1783– 1850 (New York, 1936); Elaine G. Breslaw, Lotions, Potions, Pills, and Magic: Health Care in Early America (New York, 2012); Ronald L. Numbers, “The Fall and Rise of the American Medical Profession,” in Nathan O. 190 notes to pages 12–15 Hatch, ed., The Professions in American History (Notre Dame, IN, 1988), 51– 72; Ronald L. Numbers and John Harley Warner, “The Maturation of American Medical Science,” in Nathan Reingold and Marc Rothenberg, eds., Scientific Colonialism: A Cross- Cultural Comparison (Washington, DC, 1987), 191– 214; and Edward C. Atwater, “The Medical Profession in a New Society, Rochester, New York (1811– 60),” Bulletin of the History of Medicine, 67 (May– June 1973), 221– 235. With few exceptions, I will not repeat specific citations.

 3. Most medical historians regard the first great protest of this sort to be Harvard professor Jacob Bigelow’s publication of A Discourse on Self- Limited Diseases, Delivered before the Massachusetts Medical Society, at Their Annual Meeting, May 27, 1835 (Boston, 1835).

 4. For excellent data on changing therapeutic practices, see John Harley Warner, The Therapeutic Perspective: Medical Practice, Knowledge, and Identity in America, 1820–1885 (Cambridge, MA, 1986), especially 83– 185.

 5. On the role of medicolegal questions in driving advances in medical knowledge, see James C. Mohr, Doctors and the Law: Medical Jurisprudence in Nineteenth- Century America (New York, 1993).

 6. The quote is from John Harley Warner, The Therapeutic Perspective: Medical Practice, Knowledge, and Identity in America, 1820– 1885 (Cambridge, MA, 1986), 161. On the rise of medical science, see Charles E. Rosenberg, No Other Gods: On Science and American Social Thought, rev. ed. (Baltimore, 1997).

 7. Readers interested in the history of irregular sects might want to start with the essays included in Norman Gevitz, ed., Other Healers: Unorthodox Medicine in America (Baltimore, 1988); and James C. Whorton, Nature Cures: A History of Alternative Medicine in America (New York, 2002), 1–130. For more detailed histories of these three specific sects, see John S. Haller Jr., The People’s Doctors: Samuel Thomson and the American Botanical Movement, 1790– 1860 (Carbondale, IL, 2000); John S. Haller Jr., Kindly Medicine: Physio-Medicalism in America, 1836– 1911 (Kent, OH, 1997); Alex Berman and Michael A. Flannery, America’s Botanico-Medical Movements: Vox Populi (Binghamton, NY, 2001); Susan E. Cayleff, Wash and Be Healed: The Water-Cure Movement and Women’s Health (Philadelphia, 1987); and Jane B. Donegan, “Hydropathy: Highway to Health”: Women and Water-Cure in Antebellum America (New York, 1986).

 8. Martin Kaufman, Homeopathy in America: The Rise and Fall of a Medical Heresy (Baltimore, 1971); John S. Haller Jr., The History of American Homeopathy: The Academic Years, 1820– 1935 (New York, 2005).

 9. John S. Haller Jr., Medical Protestants: The Eclectics in American Medicine, 1825– 1939 (Carbondale, IL, 1994).

 10. On these early licenses, see Richard Harrison Shryock, Medical Licensing in America, 1650– 1965 (Baltimore, 1967); and William G. Rothstein, American Physicians in the Nineteenth Century: From Sects to Science (Baltimore, 1972), 63– 84, and Appendix II. notes to pages 16–17

 11. Alexander Wilder, History of Medicine: A Brief Outline of Medical History and Sects of Physicians, from the Earliest Historic Period; with an Extended Account of the New Schools of the Healing Art in the Nineteenth Century, and Especially a History of the American Eclectic Practice of Medicine, Never Before Published (New Sharon, ME, 1901), documents the legislative counterattacks of the non-Regulars.

 12. On the history of the AMA, see Morris Fishbein, History of the American Medical Association, 1847– 1947 (Philadelphia, 1947); and James Burrow, AMA: Voice of American Medicine (1963). On the history of medical education, see William F. Norwood, Medical Education in the United States before the Civil War (Philadelphia, 1944); William G. Rothstein, American Medical Schools and the Practice of Medicine: A History (New York, 1987); Kenneth M. Ludmerer, Learning to Heal: The Development of American Medical Education (New York, 1985); and Thomas N. Bonner, Becoming a Physician: Medical Education in Britain, France, Germany, and the United States, 1750– 1945 (New York, 1996).

 13. Some jurisdictions offered physicians exemption from militia duty, and most military organizations granted officer rank to their medical attendants. But such concessions were a far cry from legal autonomy. For an overview of shifting cultural and rhetorical concepts of professionalism, see the sophisticated analyses in Bruce A. Kimball, The “True Professional Ideal” in America: A History (Cambridge, MA, 1992), especially 1– 17 and 303– 325. Burton J. Bledstein, The Culture of Professionalism: The Middle Class and the Development of Higher Education in America (New York, 1976), explores the ethos of professional aspiration in the United States during the nineteenth century. See also Harold L. Wilensky, “The Professionalization of Everyone?,” American Journal of Sociology, 70 (September 1964), 137– 158. On the history of professionalization generally during this era see Eliot Freidson, Profession of Medicine: A Study of the Sociology of Applied Knowledge (New York, 1971), and Professional Powers: A Study of the Institutionalization of Formal Knowledge (Chicago, 1989); Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor (Chicago, 1988); Samuel Haber, Authority and Honor in the American Professions, 1750– 1900 (Chicago, 1991); Gerald Geison, ed., Professions and Professional Ideologies in America (Chapel Hill, 1983); Thomas L. Haskell, The Authority of Experts: Studies in History and Theory (Bloomington, IN, 1984); and Frederick Wirt, “Professionalism and Political Conflict: A Developmental Model,” Journal of Public Policy, 1 (February 1981), 61– 93. My approach, however, treats “professional” not as an essentially cultural, theoretical, or sociological status, but rather as a legal concept. Put differently, I am defining a profession not as an occupation with a particular set of a priori characteristics and behaviors, which may or may not entitle the members of that occupation to informally implied powers or elevated social standing, but rather as an occupation statutorily empowered with officially recognized and formally enforceable rights of self- regulation and legal immunities not granted to all other ordinary occupations.

 14. Exactly why nineteenth-century therapeutics were perceived to work at all has long been a puzzle for medical historians. Recent thinking has followed a line articulated thirty-five years ago by Charles E. Rosenberg in “The Therapeutic Revolution: Medicine, Meaning, and Social Change in Nineteenth- Century America,” Perspectives in Biology and Medicine, 20 (1977), 485– 506, which addressed the role of ritual in the healing process. Contemporary studies are exploring similar phenomena in twenty-first- century circumstances. See, for example, Erik Vance, “Seeking to Illuminate the Mysterious Placebo Effect,” New York Times (June 22, 2010); and Michael Spector, “The Power of Nothing,” New Yorker (December 12, 2011).

 15. On the use of the famous mercury-based “blue mass pills,” see Gert Brieger, “Therapeutic Conflicts and the American Medical Profession in the 1860’s,” Bulletin of the History of Medicine, 41 (1967), 215– 222. Some scholars debate the possibility that President Abraham Lincoln and others may have suffered from mercury poisoning as a result of taking those pills through most of their adult lives. See Norbert Hirschhorn, Robert G. Feldman, and Ian Greaves, “Abraham Lincoln’s Blue Pills: Did Our 16th President Suffer from Mercury Poisoning?,” Perspectives in Biology and Medicine, 44, no. 3 (Summer 2001), 315– 332. On the AMA votes to endorse bleeding, see Donald E. Konold, A History of American Medical Ethics, 1847– 1912 (Madison, WI, 1962), 34. On the repeal of older license laws, see William G. Rothstein, American Physicians in the 19th Century: From Sects to Science (Baltimore, 1972), Appendix II.

16. The quotation is from Bonnie Ellen Blustein, “ ‘To Increase the Efficiency of the Medical Department’: A New Approach to U.S. Civil War Medicine,” Civil War History, 33, no. 1 (1987), 22– 41. As with most aspects of the Civil War, there is a substantial literature on the confl ict’s physicians, which ranges from multivolume government reports published soon after the war to recently annotated memoirs, biographies, and local histories. Two longstandard monographs remain the most often cited: George W. Adams, Doctors in Blue: The Medical History of the Union Army in the Civil War (New York, 1952); and H. H. Cunningham, Doctors in Gray: The Confederate Medical Service (Baton Rouge, LA, 1958). For more recent discussions, readers might start with Mary C. Gillett, The Army Medical Department, 1818– 1865 (Washington, DC, 1987), chapters 7– 13; James M. McPherson, Ordeal By Fire: The Civil War and Reconstruction (New York, 1992), 385– 390; and Margaret Humphreys, Intensely Human: The Health of the Black Soldier in the American Civil War (Baltimore, 2008).