Pox (55 page)

So Jacobson and Williams had no reason to expect good news from Justice Harlan. Harlan wasted few words dismissing all of the plaintiff's claims that depended on the Preamble (it “has never been regarded as the source of any substantive power,” he said) or the “spirit of the constitution” (the “plain” words of the Constitution “must control our decision”). The trial court's rejection of Jacobson's offers of proof, he added, “does not strictly present a Federal question.” And he rejected Jacobson's equal protection argument, stating that there were “obviously” reasons why a regulation appropriate for adults might “not be safely applied to persons of tender years.” Setting all of those issues aside, Harlan arrived at the heart of the matter: “Is the statute ... inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the State?”
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The short answer was no. Harlan did not give a short answer. In a richly textured if at times convoluted opinion, the justice tacked back and forth between power and liberty.

Harlan's rendering of the status of American constitutional liberty in 1905 bore the unmistakable impress of its times. Jacobson insisted the state had invaded his liberty—“the inherent right of every freeman to care for his own body and health in such way as to him seems best.” The Court disagreed. Even in America, liberty was necessarily conditional.

There were principles here that dated back a century or more, but Harlan tellingly expressed them in the political key words of progressivism. The interests of a modern “organized society”—with its teeming urban centers, powerful business corporations, and national labor unions—called for new and powerful forms of social and economic governance. The allusion to “anarchy” required no explanation in a nation that just three and a half years earlier had lost its president to an anarchist's bullets. Most broadly, Harlan invoked the progressive concept of “real liberty.” It was the tenet around which the entire ideology of American progressivism revolved: amid the overwhelming social and economic forces of modern urban-industrial life, to secure to each individual the actual capacity to make the most of her opportunities called for a new understanding of liberty itself. In such a world, the old freedom to be left alone was no freedom at all. Real liberty required a new social conscience and a powerful interventionist state.
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Harlan posed the vaccination question in the starkest terms: as a conflict that pitted the most basic duty of the state—protecting the population from peril—against the personal liberty of individuals who feared vaccination even more than they feared smallpox. Speaking for a Court whose members included three Civil War veterans—the former colonel likened the community's right to fight smallpox to its right and duty to defend itself from a military invasion. “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” He recalled that smallpox was epidemic in the city of Cambridge when the board of health issued its order. “[U]nder the pressure of great dangers,” he said, an individual's freedom must yield to public necessity. During an epidemic—no less than in a time of war—no man had the right to refuse the call of his country. “[H]e may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense.”
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To Harlan and the Court's majority, the Massachusetts compulsory vaccination law was unquestionably constitutional. But the decision was not, as some would later imagine it, a blank check. In fact, the opinion articulated new limitations on police power that would have stunned a nineteenth-century jurist like Lemuel Shaw. Since 1897, the vaccination cases had nudged state courts toward a more cautious balancing of state power and individual rights appropriate to an era of rapid technological and institutional change. Echoing the “present danger” standard established in the schools cases, Harlan emphasized that public health power was itself contingent. The right of a community to compel vaccination existed because of the “necessities of the case,” the dangerous presence of smallpox. And even during a life-threatening epidemic, said Harlan, the authorities might go too far. “[I]t might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.” Harlan left the details open. But in just the past few years, several courts had done just that. In
Wong Wai
, a federal circuit court had established equal protection as an inviolable constitutional standard in vaccination cases. In its Pear and Jacobson decision, the Massachusetts Supreme Judicial Court had declared that government officials had no right to enforce vaccination by physical force.
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At the end of his opinion, Justice Harlan delivered a surprise. With language that evoked the Eighth Amendment of the Bill of Rights, Harlan carved into the Massachusetts law a medical exemption for adults. It was “easy,” Harlan said, “to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his health or body, would be cruel and inhuman in the last degree. We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it was so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned.” The Massachusetts court had explicitly rejected this reading of its own state's law. It seems that Williams's emphasis on
State v. Hay
in his brief attracted Harlan's notice. The justice defended his rendering of the harm avoidance principle with a noteworthy rule of statutory construction: “General terms should be so limited in their application as not to lead to injustice, oppression, or absurd consequence.”
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Of course, Henning Jacobson had been making precisely that argument since he first set foot in Judge McDaniel's Cambridge courtroom more than two and a half years earlier. Unschooled in American legal traditions, he had tried to explain to the court his sincere belief, founded in his own family's experience with vaccination and the stories he had heard from others, that the operation threatened his health. Justice Harlan, however, was unwilling to concede that Jacobson might himself fall under the novel standard of protection he had just outlined. “No such case is here presented,” Harlan declared, without foundation. “It is the case of an adult, who for aught that appears, was himself in perfect health and a fit subject of vaccination, and yet, while remaining in the community, refused to obey the statute” at a time when the people of Cambridge were “confessedly endangered by the presence of a dangerous disease.”
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Justice David J. Brewer and Justice Rufus Peckham, the Court's two most conservative members, dissented from the decision without comment.

Pastor Henning Jacobson had reached the end of his legal odyssey. He would return one last time to the Middlesex County Superior Court and pay his $5 fine, perhaps only dimly aware that his case would become the most important legacy of the turn-of-the-century smallpox epidemics. Even in defeat, the minister had won some valuable constitutional safeguards for individual liberty and due process—if not for him, then for the rest of us.

 

 

T
he
Jacobson
ruling drew loud applause from the medical profession. The
Wisconsin Medical Journal
called it “a decision of very far-reaching significance.” Public health officers welcomed this vindication from the nation's highest court. As one New York official said of the decision, “it has elevated our profession.” The Cambridge and Boston newspapers hailed the decision for resolving a question that had caused so much controversy in their cities. As the
Boston Journal
commented, “Thus falls the theory of the few who wilfully blind themselves to the enormous good accomplished by vaccination, that personal liberty is violated by the enforcing of a salutary and reasonable health regulation.”
The New York Times
relished the moment. “This will not end the discussion of vaccination as a measure against the one disease which it perfectly controls,” the
Times
declared, “but it should end the useful life of the societies of cranks formed to resist the operation of laws relative to vaccination. Their occupation is gone.” Once again, the
Times
underestimated the antivaccinationists.
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The antivaccinationists' reactions to the decision were appropriately ambivalent. To be sure, some decried it as an unmitigated disgrace. The Providence, Rhode Island, bookseller Sidney S. Rider compared the decision to
Dred Scott
. “This Court once decided that a negro had no rights which a white man was bound to respect,” Rider seethed. “Is it going now to decide that a white man who abhors vaccination as a deadly poison has no rights which a doctor is bound to respect?” But many critics of compulsory vaccination recognized that the
Jacobson
litigation had in fact secured important gains for personal liberties—including the Massachusetts Supreme Judicial Court's public condemnation of forcible vaccination and the important safeguards Harlan had worked into his Supreme Court opinion. The
Medical Advance
, a homeopathic journal, highlighted Harlan's admonition to health boards that their measures could be so “arbitrary and oppressive as to justify the interference of the courts.” “This warning deserves attention,” the journal noted, “and may afford persons suffering from constitutional dyscrasia legal ground for protest.” In fact, for the antivaccination movement, the next twenty years would bring a burst of new organizing and initiatives to topple school-based smallpox vaccination mandates at the local and state levels.
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Many observers instantly recognized that the
Jacobson
decision had important ramifications beyond the vaccination question. Much of the progressive reform agenda—including the great welter of labor legislation enacted in the states in recent years—had been justified on the grounds that it promoted the public health. If the Supreme Court had ruled that the states had no right to compel vaccination during a smallpox epidemic, how would other measures, less directly related to the public health, have survived constitutional challenge? The
New York Tribune
observed that the
Jacobson
ruling had “a special interest for New-York,” because of its implications for an ongoing suit to strike down the state's tenement house law. “It is reassuring to find the Supreme Court taking a view of the scope of the State's police power in which the community's right to protection against sanitary abuses cannot be jeopardized by individual obstinacy or individual greed.”
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But the Supreme Court itself muddied the constitutional waters just a few months after
Jacobson
with its instantly notorious decision in
Lochner v. New York
. In a 5 to 4 decision (written by Justice Peckham) the Court struck down the state's ten-hour law for bakers as an unconstitutional violation of the right of bakers and their employers to contract freely with one another. It was the first time the Court had brandished the controversial concept of liberty of contract, in a case not involving interstate commerce, to override the ruling of a state court and restrain the legislative exercise of the police power. Peckham distinguished the case from
Jacobson
, claiming there were no legitimate public health purposes at stake in the bakers law.
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In dissent, Justice Harlan made a mockery of that claim. He cited medical studies that documented the many ailments suffered by bakers due to the long days spent working on their feet, inhaling flour dust in the extreme heat of a bakery. Harlan found much evidence to support the legislature's belief that more than ten hours of work each day in a bakery “may endanger the health, and shorten the lives of the workmen, thereby diminishing their physical and mental capacity to serve the State, and to provide for those dependent upon them.”
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Justice Holmes wrote a separate dissent. Objecting that the majority seemed to have forgotten the Court's decision, just “[t]he other day” in
Jacobson
, Holmes said Peckham's opinion relied on a “perverted,” laissez-faire reading of the word “liberty” in the Fourteenth Amendment. “A reasonable man,” said Holmes of the bakers law, “might think it a proper measure on the score of health.” Without a shred of justification or precedent, the majority had usurped “the right of a majority to embody their opinions in law.”
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