Pox

by Michael Willrich

  If the majority’s astonishingly narrow reading of the Fourteenth Amendment defended the pre–Civil War status quo, the dissenting opinions written by Justice Stephen Field and Justice Joseph Bradley mapped out a new direction in American constitutional jurisprudence. Field and Bradley took aim at the state-created monopoly as a violation of fundamental economic rights. As Field put it, under the “pretense” of a sanitary regulation, the legislature had unjustly invaded the butchers’ “right to pursue a lawful and necessary calling”—a liberty and property right protected from state interference by the due process clause. During the next thirty years, the Field and Bradley dissents—and particularly their close identification of “due process” with economic liberty—would become key weapons in the constitutional attack on state social legislation.50

  Industrialization had a greater immediate impact upon the police power and its constitutional status than did the Civil War. The police power exploded in the postwar decades, as organized labor and social reformers pushed state legislatures to regulate some of the worst human consequences of America’s dramatic and often violent transformation into an urban-industrial society. “The law of the police power is practically a growth of the last thirty or forty years,” the progressive University of Chicago legal scholar Ernst Freund observed in his authoritative 1904 treatise The Police Power, “and much of it remains unsettled.” Freund’s tome covered everything from the control of monopolies to the suppression of labor strikes. The field of public health and safety alone comprised an extraordinary range of government activities, many of them new: medical inspection of immigrants at the nation’s ports, factory regulations in the industrial heartland, tenement laws and pure milk standards in the cities. Much of the social legislation supported by labor-friendly progressive reformers was justified by state lawmakers on the grounds that it promoted the public health—a claim that made many such laws vulnerable to constitutional challenge when the connection between the state action and the health of the public was at all controversial or indirect.51

  As the reach of the police power grew, so did the number of constitutional challenges to it. During the 1880s and ’90s, plaintiffs, lawyers, treatise writers, and, increasingly, state supreme court judges emphasized the supposedly timeless “constitutional limitations” on the police power. Traces of these arguments could be seen in the prewar period (almost invariably on the losing side of cases), but they were largely a product of the late nineteenth-century struggle over the political economy of industrialism. Building upon the foundation laid by Justices Field and Bradley in their Slaughter-House dissents, critics of regulation breathed a new meaning into the due process clauses of the state and federal constitutions. Those clauses—forbidding government to deprive a person of life, liberty, or property without due process of law—had their origin in the ancient English Magna Carta, and they had long been understood by American courts as guaranteeing good common law procedure. The passage of reasonable legislation, its enforcement by duly constituted public officers, the right of a defendant to a fair trial—that was the essence of due process. The police power was not at odds with due process, as pre–Civil War judges like Lemuel Shaw understood it. In a fundamental respect, the police power was due process. In late nineteenth-century America, the due process clauses were taking on a broader meaning—as critics of government regulation used them to define the substance of the life, liberty, and property rights that could not be invaded, under almost any circumstances, by the state.52

  Judges did not simply upend a century of jurisprudence to clear the way for a business-friendly laissez-faire constitutionalism. But dozens of hard-fought labor laws, whether a New York ban on tenement sweatshops or an Illinois eight-hour law for female factory workers, met an untimely death in a state supreme court for interfering with property rights or a newly minted “liberty of contract.” By the turn of the century, conservative treatise writers such as Christopher G. Tiedeman had helped convince many judges that the police power was an almost unnatural force, best kept under close judicial control. “The unwritten law of the country is in the main against the exercise of police power,” Tiedeman claimed.53

  By the late 1890s, having largely repudiated the civil rights of African Americans, the U.S. Supreme Court was reading broad economic liberties into the Constitution via the Fourteenth Amendment’s due process clause. Several key opinions were written by a newcomer to the Court, Justice Rufus Peckham. In Allgeyer v. Louisiana (1897), the Court invalidated a Louisiana statute regulating out-of-state insurance companies that did business in the state. In his opinion for the Court, Peckham imported the controversial new doctrine of “liberty of contract” into the Constitution:

  The liberty mentioned in [the Fourteenth Amendment] means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of his faculties; to be free to use them in lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.

  By itself, Allgeyer did not spark a revolution in jurisprudence. During the next several years, the Court upheld a good deal of social legislation, including a Colorado law (upheld over the dissents of Justice Peckham and Justice David Brewer) that forbade the employment of workers in mines for more than eight hours per day. But Peckham’s expansive vision of economic liberty foretold the Court’s increasing willingness to assume the very role that Justice Miller had warned against in Slaughter-House: a “perpetual censor” on state legislation that interfered with individual liberty.54

  At the turn of the century, the rising generation of progressive intellectuals and activists regarded such talk of a constitutionally protected sphere of individual liberty with great skepticism. The United States had become a “modern,” urban-industrial society, they observed. The emergence of a national economy—bound by railroads, built by corporate might and wage labor, and giving rise to a new density of urban life—fostered a new era of human association and social responsibility. Leading progressives from Jane Addams of Chicago to Louis Brandeis of Boston valued social interdependence over personal autonomy. The legal scholar Roscoe Pound and the philosopher John Dewey argued that individual rights existed not for themselves but because they served important social interests. Under the press of urban-industrial social conditions, the progressives argued, “real liberty” meant more than freedom from government.55

  Outlook magazine, a leading organ of progressive opinion, expressed the position well. “In our time the man of progressive temperament is an advocate of organization, the man of conservative temper is an individualist,” the magazine said. “Real liberty for the laborer requires labor organization; real liberty of travel requires government control of the instruments of travel; real liberty in food, clothing, and home requires law to guard against disease and death, threatened by conditions of modern society; real liberty to speak and teach effectively requires organization, educational and religious.” In a time when the crowded conditions of everyday urban life evoked the inescapable social connectedness of an epidemic, progressives took up the germ theory as a powerful political metaphor. From the cities to the statehouses to Washington, the reformers decried prostitution, sweatshops, and poverty as “social ills.” A stronger state, they said, held the “cure.”56

  With good reason, progressives condemned the judicial language of individual liberty as old-fashioned, formalistic, and fake—thin cover for the presumed laissez-faire prejudices of the judges themselves. The progressives’ charges of judicial “usurpation” centered on the courts’ invalidation of labor legislation and other forms of economic regulation. But there was another front in the era’s great struggle over the police power.57

  At the turn of th
e century, ordinary Americans were just beginning to turn to the law to challenge the increasing reach of administrative power into areas of life to which we now attach the most fundamental of civil liberties: freedom of speech and belief, parental rights, and the right to bodily integrity. No public policy crystallized those inchoate concerns more powerfully than did compulsory vaccination. In the name of public health and safety, Freund acknowledged, the modern state had been “readily conceded more incisive powers than despotic governments would have dared to claim in former times.”58

  Critics of the burgeoning interventionist state agreed. St. Louis’s Central Law Journal, a leading voice of conservative legal opinion, condemned compulsory vaccination as “one of the most serious and unwarrantable encroachments upon the personal liberty of the citizen that has been committed in recent years under the guise of the police power.”59

  As Bancroft, Pickering, and Ballard researched the state of the art of police power jurisprudence for their briefs, they naturally paid particular attention to the recent proliferation of state court cases challenging compulsory vaccination. Remarkably, the legal issues involved were still novel. Vaccination laws had been on the books in Massachusetts and other states for decades. But the first legal challenge had not reached a state supreme court until 1890—at the very moment police power cases began to stream into the courts. Vaccination litigation escalated dramatically as smallpox spread at the turn of the century. The law remained unsettled. The Supreme Judicial Court had the opportunity to bring some muchneeded clarity to the subject.

  So far, the American vaccination cases had taken several distinct forms. In the most common type, parents asked courts to order local school boards or principals to admit their “scarless” children. Unsurprisingly, in a legal culture that privileged men, most of the parents named in these cases were fathers. Some, like George R. Mathews of Kalamazoo, Michigan, were Christian Scientists, who opposed compulsory vaccination as an infringement of their “religious belief and scruples”; others, such as stenographer Frank D. Blue of Terre Haute, Indiana, were members of antivaccination societies; and others followed Michael Breen, a farmer from Lawrence County, Illinois, who demanded his rights as “a resident and taxpayer.” In another type of case, public schoolteachers, including women like Mary Helen Lyndall of the Philadelphia Girls’ High School, sued for the right to enter their workplaces unvaccinated. A third class of litigants—including the North Carolina merchant W. E. Hay and a Georgia factory worker named Morris—challenged their treatment under general vaccination orders, arguing that compulsory vaccination was a form of bodily assault.60

  Given the long tradition of judicial deference to the police power, especially in the area of public health, it is remarkable that so many Americans could imagine that compulsory vaccination violated their rights. This unshakable belief arose from their sense that compulsory vaccination was unprecedented—a radical and especially dangerous form of governmental power, different in kind from all previous public health measures.

  Prior to the Civil War, the paradigmatic compulsory health measure had been quarantine, a form of physical restraint that raised conventional due process questions: was the detention carried out in a lawful manner, following good common law procedures? Compulsory vaccination involved an invasive medical technology. It raised questions about the substance of personal liberty: could the state ever penetrate a citizen’s body and insert a mysterious biological substance into a healthy human system? Until the 1890s, no state appellate court had ever upheld such a right of government.61

  Some legal experts argued that compulsory vaccination was far less intrusive than quarantine. Under quarantine, a smallpox “suspect” could be detained by the government for two full weeks. The vaccination operation lasted but a few minutes. “If the protection of public health allows quarantine,” Freund mused, “it is difficult to see why it should not justify compulsory vaccination.”62

  All of this made perfect sense from a conventional due process perspective, which saw seizure of a man’s body or property, in the absence of public necessity and proper common law procedure, as an act of the purest tyranny. But for critics of compulsory vaccination (in Europe as well as the United States), any similarity to quarantine ended the moment lancet touched skin. One involved temporary detention of someone officials believed to have been exposed to contagion; the other entailed insertion of an animal virus into a presumably healthy human system. “There is a better way,” Ballard wrote in Jacobson’s brief. “In case of a quarantine of the unvaccinated, no risk or danger would ever be run to anybody’s health or life—and nobody’s feelings would ever be shocked or outraged by it.” What Freund and others saw as the lesser of two necessary evils, vaccination litigants and their lawyers regarded as the far greater invasion of personal liberty.63

  The personal liberty claims made in the vaccination cases bore the impress of a changing legal culture, as Americans and their lawyers reached for—and expanded upon—the newly minted language of substantive due process. Lawyers representing vaccination litigants (if not always the litigants themselves) showed that they were well versed in the economic due process arguments that had made headway in recent years in the courts. They marshaled substantive due process onto a new terrain—from the field of contract and property to the domain of personal liberties and the body.

  The doctrine of substantive due process became increasingly important in the vaccination cases. In the first case to reach a state supreme court, Abeel v. Clark (1890), Santa Cruz parents challenged California’s 1889 school vaccination law on the narrowest of technical grounds. The statute, they said, violated the state constitution because the law’s subject was not clearly expressed in its title and it was “not general in its scope” (it reached only public schoolchildren, not the general public). The court upheld the law as a reasonable exercise of police power.64

  Four years later, Andrew Jackson Duffield’s suit against the Williamsport, Pennsylvania, School District made a far more expansive due process argument, signaling a new direction in the litigation. With smallpox “epidemic in many near by cities and towns,” the local school board ordered all pupils to show proof of vaccination. Duffield, a real estate dealer and local constable, went to the Lycoming County Common Pleas Court seeking a writ of mandamus—an order that would compel the school board to admit his unvaccinated son. The court refused. In a time of “imminent danger,” the court declared, school directors had the “right as well as the duty” to do “everything in their power” to prevent the spread of disease. The constable appealed.65

  Duffield’s attorney got to work. William H. Spencer was a local lawyer who had gone to work in anthracite coal mines at the age of twelve. His brief to the Pennsylvania Supreme Court defined the police power in the narrow terms advocated by the conservative legal scholars Thomas Cooley and Christopher Tiedeman (whose treatises he cited). “The police power is grounded upon inevitable necessity—the necessity that all men are under of so exercising their own rights so as not to infringe upon the equal rights of others.” This was, of course, the common law sic utere tuo principle. But Cooley and Tiedeman had recast that venerable maxim in the modern libertarian mold of John Stuart Mill. Like those writers, Spencer said little about the other great maxim of the police power, salus populi, which put the people’s welfare above all else. Citing the due process clauses of the Fourteenth Amendment and the Pennsylvania Constitution, he called compulsory vaccination an assault by the state “against the body of a healthy child.”66

  Duffield lost his case. The Pennsylvania Supreme Court affirmed the broad power of the school board to adopt “reasonable health regulations for the benefit of their pupils and the general public.” The court insisted that no one had compelled Andrew Duffield to vaccinate his son; the board claimed only the right to exclude unvaccinated children. Conceding that “medical men differ” about the effectiveness of vaccination, the court concluded that the board’s action reflected “the present state of
medical knowledge.” The board had acted “in the utmost good faith,” at a time when smallpox actually threatened Williamsport.67

  That same winter, the U.S. Supreme Court upheld the right of New York to enact legislation protecting its fisheries. In the decision, the Court added, for the first time, a new example to the long list of government actions that state appellate courts had found permissible under the police power: “the compulsory vaccination of children.” The language was what lawyers call “dicta”; it did not amount to a constitutional holding affirming compulsory vaccination of schoolchildren or anyone else. But the casual addition of compulsory vaccination to a litany that included “the regulation of railways” and “the restraint of vagrants” suggested the Court saw no problem with it.68