Pox (56 page)

For more than a century afterward, constitutional scholars and historians would remember the first decades of the twentieth century as the “Lochner era,” a dark period in the history of American law, when the U.S. Supreme Court used a business-friendly rhetoric of individual liberty to strike down urgently needed social legislation.
Lochner
was an important decision. But it was less important for its holding than for its cultural reverberations. The decision outraged and focused the intellectual energies of an entire generation of progressive legal thinkers and activists, who would over the next quarter century lay the conceptual groundwork for the New Deal. But even the progressives did not make the mistake of seeing
Lochner
as the emblematic court decision of their era. The decision was outrageous because it was so out of line with the general tendency of American courts to approve greater and greater exercises of state police power—a tendency the progressives viewed as necessary and thus almost inevitable.
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Instead, many contemporaries continued to look to
Jacobson
as the better reference point for understanding the real extent of government power in America's modern, urban-industrial epoch.
Lochner
notwithstanding, American judges and legal scholars immediately began citing
Jacobson
as the authoritative statement of the almost unlimited extent of the police power in the United States.

In the decades after
Jacobson
, even as antivaccination societies continued to form and fight school vaccination mandates in the state legislatures and courts, the vaccination question became a touchstone in the American legal imagination. In his 1914 book on antitrust law, for example, former president William Howard Taft cited compulsory vaccination as a synecdoche for the entire rising regulatory edifice of modern American government. “Changing conditions prevailing in society,” necessarily led the government to impose a host of new restraints on personal freedom. “Take, for instance, the compulsory vaccination laws sustained by the Supreme Court,” Taft wrote, recalling his years in the Philippines. “I have had an opportunity to witness the effect of such laws in the Philippines upon a people that had not had popular government and had been steeled to arbitrary rule, and yet they resented the health laws as savoring of intolerable cruelty.” That almost primal resistance to compulsory vaccination, he suggested, was all the more strongly resented by a liberty-loving people accustomed to democracy and the rule of law. But a maturing urban-industrial society had to put away such childish liberties. Taft's very next paragraph traced the connection between modern health laws and the array of other regulations that had necessarily been imposed on industrial society, including tenement house laws, child labor laws, and maximum hours laws. In Taft's view,
Lochner
was an aberration.
Jacobson
better reflected the real state of American constitutional law.
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Despite the careful safeguards Harlan laid out in his
Jacobson
opinion, the decision initially had a negative impact for civil liberties. With the coming of World War I, the federal and state governments crushed dissenting political speech with an extraordinary wave of repressive measures. Among the thousands of Americans placed under surveillance by J. Edgar Hoover's new Bureau of Investigation for alleged seditious activities in 1918 were several activists involved in what one special agent called “the anti-vaccination crusade.” They included the chiropractor William Heupel of Iowa, the activist Jessica Henderson of Massachusetts, and the former
Liberator
editor Lora C. Little, who now lived in Portland, Oregon. The federal agents viewed these antivaccinationists as subversive and un-American—and not only because their propaganda threatened to undermine the Army's vaccination program.
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The war years opened up a new front of civil liberties controversies—this time over the question of the proper bounds of political speech. Significantly, the landmark constitutional cases that emerged from the wartime civil liberties battles bore distinct echoes of the earlier fights over vaccination, as the phrases “conscientious objector” and “present danger” took on new, now familiar meanings. As Justice Holmes, who had signed Harlan's
Jacobson
decision, suggested in a personal letter to Judge Learned Hand in 1918, all of these liberty questions were connected. It was in this wartime context that Holmes told Hand, “free speech stands no differently than freedom from vaccination.”
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Holmes still regarded compulsory vaccination as a reference point for how far the democratic majority might rightfully override the liberty interests of minorities. When Holmes first articulated his famous “clear and present danger” standard in 1919, he altered the meaning of a phrase that had arisen in the vaccination cases as a limitation on administrative discretion. In Holmes's initial formulation, in
Schenck v. United States
, the “clear and present danger” standard gave Congress sweeping power to restrain speech. Later that same year, however, Holmes restated his own standard in language more receptive to speech rights—and more consistent with the present danger standard that state judges had established in the vaccination cases. “It is
only
the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned,” Holmes declared.
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Even after Holmes established himself as one of the nation's greatest champions of First Amendment rights, compulsory vaccination remained for him a powerful metaphor for the reasonable sacrifices that the state could demand of its citizens. In 1927, the justice cited
Jacobson v. Massachusetts
, and nothing else, as he upheld the right of the state of Virginia to sterilize an allegedly “feeble-minded” woman named Carrie Buck against her will. “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes,” Holmes wrote in some of the most chilling words ever delivered from the Supreme Court. “Three generations of imbeciles are enough.”
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Holmes, though, did not have the last word. Over time,
Jacobson v. Massachusetts
would attain a more complex place in American law—leaving a legacy more in keeping with the double-sided quality of Justice Harlan's original opinion. For Harlan had attempted to resolve the Progressive Era struggle between individual liberty and government power with a ruling that bolstered both.

In its first century of life,
Jacobson
has been cited as precedent numerous times in Supreme Court cases to defend extraordinary exercises of governmental power. It has been used to uphold eugenical sterilization laws, to support the claim that a warrantless entry by law enforcement officials may be legal when there is a compelling need and little time, and, in a recent dissent, to defend the federal government's right during the twenty-first-century war against terror to detain a U.S. citizen as an “enemy combatant” without due process.
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But on the other side of the balance, Jacobson provided a crucial source of constitutional authority for the post–World War II “rights revolution.” Constitutional scholars have often noted that in the great reproductive rights decisions of the late twentieth century, civil liberties attorneys and the U.S. Supreme Court revived the old discredited language of substantive due process and changed its basic purpose from the protection of economic rights to the creation of private rights of bodily autonomy and integrity. But the antivaccinationists had made such arguments well over a half century earlier in the long line of cases that culminated in
Jacobson
. As civil liberties attorneys, women's rights advocates, and liberal judges fought to extend constitutional due process to encompass reproductive rights during the 1960s and 1970s, they brandished Harlan's language from
Jacobson
. Supreme Court Justice William O. Douglas cited Harlan's words in
Doe v. Bolton
, a 1973 decision that overturned Georgia's abortion law, to support the proposition that “the freedom to care for one's health and person” was “fundamental” and only a “compelling state interest” could justify interference with that liberty. In other major reproductive rights cases, the Court cited
Jacobson
to defend the existence of a constitutional right to sexual privacy and to support the claim that “a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims.”
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The
Jacobson
decision has assumed a significance that neither Pastor Henning Jacobson nor Justice John Marshall Harlan could have anticipated in 1905. But the long afterlife of that case underscores an important fact about the contentious history of civil liberties in modern America: free speech wasn't the half of it. Beginning with the vaccination struggles of the turn of the century, in an era of fast-growing institutional power, ordinary Americans again and again challenged the courts to create new protections for personal liberties—including rights to individual autonomy, medical privacy, and bodily integrity. Harlan's opinion had treated those claims with a measure of respect. At the very least, he recognized that they were worth fighting for. He said, “There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will.”
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But Harlan recognized that under the necessitous conditions of modern life, human freedom sometimes meant little without purposeful governmental action. And so, in
Jacobson v. Massachusetts
, the U.S. Supreme Court gave its blessing to an unpopular but effective public health technology that would one day be used to eradicate the most deadly disease the world has ever known.

Gone are the days of the pesthouse and the detention camp—the tent city thrown up at the edge of town, its gas-fired torches standing sentry through the night. Gone, too, the days when we looked into the pockmarked face of a stranger on a crowded streetcar, or a loved one across the table. We have lost the habit of rolling up our sleeves to display our vaccination scars to the medical inspector at the border, the nurse at the schoolhouse door, or the conductor on the departing train. With each passing year, more of us have no scar to show. All of these things are gone, because smallpox is gone.

America's turn-of-the-century war on smallpox did not kill humankind's ancient foe. But it did mark the beginning of the end for the disease in the United States. The deadly New York smallpox epidemic that started in All Nations Block on Thanksgiving Day 1900, setting Alonzo Blauvelt's vaccination corps into motion in the tenements and factories, was to be the city's last. Boston, too, had seen its final smallpox epidemic during the deadly 1901–3 visitation that sealed the city's reputation as a “hotbed of the anti-vaccine heresy.” Over the next twenty-nine years, the city reported a hundred-odd cases, just four of them fatal, and then the pox vanished for good. The story was much the same in Philadelphia, Cleveland, Seattle, and other places where smallpox had raged during the first years of the century.
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By World War I, a rough pattern had taken hold. Outbreaks of malignant variola major became rare events, aggressively stamped out by America's increasingly well-organized health departments through a combination of mass vaccination and swift isolation of patients. Having learned something on the vaccination battlegrounds of the turn of the century, public health professionals self-consciously eschewed compulsion and force for public education and the promotion of the idea that every citizen had a positive right to good health. As C.-E. A. Winslow of the Yale School of Medicine observed, “Public health conceived in these terms will be something vastly different from the exercise of the purely police power which has been its principal manifestation in the past.” Of course, every profession seeks to elevate itself by disclaiming the backwardness of its predecessors. And the new public health, far from a retreat, implied a much more ambitious program for governing everyday life in America. But over time, ordinary Americans did more fully accommodate themselves to the call for mass vaccination when the deadlier form of smallpox invaded their communities. When variola major reappeared in Detroit in 1924, causing 163 deaths, a half-million residents submitted to vaccination in a single month.
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But the new mild type of the disease remained far more difficult to control. Variola minor became the dominant form of smallpox in the United States. Between 1921 and 1930, the United States reported nearly 400,000 cases of smallpox, with a case-fatality rate of less than 1 percent. During the next decade, 108,000 cases were reported, with a case-fatality rate of just .38 percent. As smallpox continued to lose its lethal force, Americans remained ambivalent—or apathetic—about smallpox vaccination. Health departments relied on school mandates and voluntary action to maintain vaccination levels. But by the 1930s, only nine states had compulsory vaccination laws on the books, and four states had laws banning compulsion. During the 1930s, public health experts voiced the old refrain that “the United States lags behind other civilized countries in vaccination protection.” And they were right. With 5,000 to 50,000 cases still occurring each year, health officials estimated that only one in two Americans had ever been vaccinated.
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The antivaccination movement had continued to challenge the authority of American public health officials. As the Birmingham, Alabama–based
Southern Medical Journal
lamented in 1921, “All the fools are not dead yet.” Since the Supreme Court's ruling in
Jacobson v. Massachusetts
, antivaccinationists had relentlessly railed against school vaccination requirements. They would continue to do so even after the Court, in a 1922 opinion written by Justice Louis D. Brandeis, dismissed a constitutional challenge to a local school vaccination mandate, stating that the
Jacobson
ruling had effectively decided the question.
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