Pox
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Curiously, Pickering and Ballard overlooked one particularly relevant federal case. Unlike most of the era’s important public health cases, Wong Wai v. Williamson (1900) had nothing to do with smallpox. The case arose from the turn-of-the-century bubonic plague epidemic in San Francisco. A federal circuit court issued an injunction to prevent health officials from carrying out a plan that forbade Chinese residents to leave the city without submitting to vaccination. The plague vaccine, Haffkine’s prophylactic vaccine, had been invented just three years earlier. It was highly toxic and had serious side effects, as Chinese residents of the city had learned when a few voluntarily submitted to inoculation. Chinese residents put up a good fight against compulsory inoculation—in the streets and in the courts. Wong Wai, a merchant, sued, insisting the inoculation plan violated the Equal Protection Clause of the Fourteenth Amendment. Judge William Morrow agreed. The plan, he said, was “boldly directed against the Asiatic or Mongolian race as a class, without regard to the previous condition, habits, exposure to disease, or residence of the individual.” The defendants had provided “no evidence” to show that the Chinese were more susceptible to the plague than other races. Morrow cautioned the San Francisco Board of Health that the police power, “however broad and extensive, is not above the constitution.” Wong Wai established equal protection as an important standard for reviewing compulsory health measures.88
In their final briefs Pickering and Ballard presented the Supreme Judicial Court with a libertarian indictment of the growth of police power since the Civil War. The lawyers charged that the government “has surrounded the citizen with a multitude of restrictions as to his right of choice and individual action, and has imposed almost countless conditions upon his exercise of his legal rights, in respect to his use of his own skill and labor, in earning a livelihood, his employment of others, his use of his own property, and his dealings with his fellow citizens.” Compulsory vaccination revealed the extreme tendencies of the police power. It stole from the individual “the most sacred right that man has ever claimed and defended as his own—the right to the inviolability and integrity of his person.” Every citizen had the “privilege” to decide to what “medical cult, if any, he will entrust his protection against the contagion of small-pox.” Given the risks of vaccine—the lawyers cited Joseph McFarland’s recent report on the Camden tetanus deaths—every citizen had the right to “take his chance of small-pox.” The briefs culminated with the obligatory dance on the slippery slope. If compulsory vaccination was constitutional, then so must be “compulsory hypodermic injections of the public with all the known anti-toxins,” the attorneys declared. “Operative surgery, also, must have its turn, and we shall have compulsory removal of appendices, of warts and wens, and compulsory reformations of human architecture generally, and so have a compulsorily reformed and rehabilitated society.”89
It was an absurd argument, intended to jolt the justices from familiar ways of thinking. Pickering and Ballard could not have known that four years later Indiana would enact America’s first eugenical sterilization law.
On April 2, 1903, the Supreme Judicial Court handed down its unanimous decision in Commonwealth v. Pear; Same v. Jacobson. The opinion was written by Chief Justice Marcus P. Knowlton. A Massachusetts native and Yale graduate, Knowlton had a long career in public life, including service in both branches of the state legislature and sixteen years as a superior court justice before he was appointed to the Supreme Judicial Court in 1887.90
Knowlton’s opinion closely followed the path laid out for him in Bancroft’s brief. “The rights of individuals must yield, if necessary, when the welfare of the whole community is at stake,” Knowlton declared. “This is true of the right to personal liberty as well as the right to property.” If quarantine and conscription were reasonable exercises of governmental power, then so was compulsory vaccination. “It is a fact of common knowledge that smallpox is a terrible disease whose ravages have sometimes swept away thousands of human beings in a few weeks,” Knowlton wrote. “It is equally well known that a large majority of the medical profession and of people generally consider vaccination, repeated at intervals of a few years, a preventive of the disease.” He cited the line of state cases upholding compulsory vaccination, noting that even cases such as Adams v. Burdge, which struck down measures issued by health boards, assumed that a legislature may interfere with individual rights of the unvaccinated “when smallpox is prevalent.”91
Knowlton also ruled that the trial court had properly excluded Jacobson’s offers of evidence. Jacobson’s propositions regarding the danger vaccination posed to him were matters of his personal belief, which could neither “affect the validity of the statute, nor entitle him to be excepted from its provisions.” The “theoretical possibility” that enforcement might result in an individual injury was insufficient to show that the statute itself was unreasonable. “The application of a good law to an exceptional case may work hardship.” Knowlton mused that the law still gave the “exceptional” individual an out: “the worst that could happen to him under the statute would be the payment of a penalty of $5.” (In fact, there was nothing to stop the government from prosecuting a single vaccine refuser again and again for repeatedly committing the same offense.)92
The Supreme Judicial Court handed the antivaccination movement a major defeat, affirming one of America’s strongest vaccination laws. But Knowlton added a note of caution, sending an unmistakable signal to local boards of health. In certain instances, he said, “the time and manner of enforcement” might call for stricter judicial scrutiny. “If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force.”93
This was no casual aside. As anyone who read the Boston newspapers knew, physical force vaccination was hardly uncommon in turn-of-the-century America. Not everyone received a polite visit from the chairman of the board of health. From the African American shacks of Middlesboro, Kentucky, to the tenements of Italian Harlem to the huts of the Philippine city of Iloilo, American health officials, police, and soldiers had on numerous occasions enforced vaccination at the point of a gun or the end of a billy club. Like the “tramps” who had uttered “every imaginable threat from civil suits to cold-blooded murder” when the Boston virus squad burst into their South Boston lodging house in the middle of the night, Knowlton recognized that forcible vaccination was beyond the pale. Getting this noforce principle stated for the public record by one of the nation’s most venerable state courts was a major achievement.94
The court handed down its decision that same day in the Commonwealth’s cases against John H. Mugford. The court stated its ruling in a single sentence: “These cases are governed by Commonwealth v. Jacobson.” The verdicts against Mugford would stand.95
For Albert Pear, too, the Supreme Judicial Court was the end of the fight. He made no further appeal. But Jacobson had not finished litigating. It seems likely that the Massachusetts Anti-Compulsory Vaccination Society played a role in Pear’s decision to step aside and let Jacobson appeal his case alone to the nation’s highest court. Although Pear had a higher local profile, Jacobson’s case presented a richer set of legal issues.
When Reverend Jacobson appeared for sentencing in the Middlesex County Superior Court on June 15, 1903, he had a new lawyer with him, George Fred Williams. The court fined Jacobson $5; Williams immediately filed a petition for a writ of error to the U.S. Supreme Court. The defendant asked for reversal on the grounds that the Massachusetts law violated the U.S. Constitution—specifically the Preamble, the Fifth Amendment, the Fourteenth Amendment, and the “spirit of the Constitution.” The superior court had also erred, Williams charged, in excluding Jacobson’s offer of evidence.96
In 1904, the Supreme Court had no choice but to hear the case. Congress did not give the Court power to pick and choose its own constitutional cases until 1925. Appeals went out in alternative medical j
ournals across the nation for donations to help the Massachusetts Anti-Compulsory Vaccination Society pay Henning Jacobson’s legal costs. The minister’s case had become a national cause célèbre for the movement, the first vaccination case to reach the Supreme Court.97
George Fred Williams was fifty years old when he took on Jacobson’s case: a famous lawyer, political insurgent, and former U.S. congressman. Born to a patrician family in Dedham, Massachusetts, he attended Dartmouth College and the universities of Heidelberg and Berlin. As a young Boston lawyer in the 1880s, Williams emerged as an impassioned leader—along with the future mayor Josiah Quincy and the lawyer Moorfield Storey—of the Massachusetts Mugwumps, reform-minded men of privilege who bolted the Republican Party to support Grover Cleveland’s 1884 presidential campaign. Once in the Democratic Party, Williams never left. He showed a greater interest than most Mugwumps ever had in the problems and politics of “the slums.”98
Williams was no stranger to long-shot political causes. As William Jennings Bryan’s top political lieutenant in New England, he spoke out against the Spanish-American War and for Philippine independence, advocated tariff reduction and public ownership of utilities, called for an eight-hour workday and a progressive system of taxation that would “require full contribution from wealth and bear as lightly as possible on labor and the poor,” and stood for “liberty and self-government everywhere under the stars and stripes.” He ran as the Democratic nominee for Massachusetts governor three times in the 1890s, and lost every time. But he remained a force, bearing the Bryan standard at state and national conventions. By 1904, “this David of Massachusetts,” as the Boston Arena styled him, had largely retired from politics. But he still loved a good fight. As recently as 1903 Williams had argued, and lost, a bankruptcy case before the Supreme Court.99
On December 6, 1904, a large audience, including several members of the Massachusetts Anti-Compulsory Vaccination Society, filled the Old Senate Chamber in the U.S. Capitol to watch the Supreme Court hear oral argument in Jacobson v. Massachusetts. With Williams leading Jacobson’s legal team, the pastor’s constitutional case assumed a different tone. The well-reasoned brief that Williams and his partner, James A. Halloran, submitted to the Supreme Court contained few of the libertarian fireworks of the Pickering and Ballard briefs. Williams scotched the Fifth Amendment argument—a claim that was both futile (because the Supreme Court had long maintained that the Bill of Rights did not reach the states) and unnecessary (because the Fourteenth Amendment did). The new brief gave the police power its due, even acknowledging the right of states to regulate the practice of medicine. If Jacobson had actually been infected with small-pox, Williams conceded, the state would have had every right to defend the community against him. The brief disclaimed any objection to voluntary vaccination and conceded the right of any state to exclude unvaccinated children from its schools. But by entrusting local boards with arbitrary powers to inoculate a healthy individual with disease—without making any exception for adults with special health conditions—the Massachusetts legislature had deprived Jacobson of his liberty without due process of law. And by making health exceptions only for children, the law violated the Fourteenth Amendment’s equal protection clause. “In the history of our Republic, and indeed of England,” Williams declared, “there is no parallel to such legislation.”100
In the brief and in oral argument before the Court, Williams offered his own version of the recent history of smallpox in the United States. He recalled the collapse of public confidence in American vaccine, and Cleveland’s decision to fight smallpox with sanitation rather than vaccination. “Smallpox has ceased to be the scourge it once was,” Williams said, in a clear reference to variola minor, “and there is a growing tendency to resort to sanitation and isolation rather than vaccination.” Painting Massachusetts as an outlier state, the brief said only eleven of the nation’s forty-four states had compulsory vaccination laws, while only thirteen excluded unvaccinated children from the public schools. While technically correct, this claim glossed over the important fact that during the epidemics many American communities had ordered vaccination at will, under their local police powers. Williams noted the passage of noncompulsion laws in Utah, West Virginia, and Minnesota, and cited Governor La Follette’s veto of a compulsion bill in Wisconsin, quoting his statement that in other states such laws “have resulted in riots and strife which have outlived the epidemic.” And in his discussion of the state vaccination cases, Williams called special attention to State v. Hay. Placing America’s vaccination controversy in a global context, the brief applauded Parliament’s 1898 conscientious objector clause and reminded the justices that antivaccination riots had rocked Brazil as recently as November 1904.101
The final words of Jacobson’s brief to the Supreme Court paid tribute to the post–Civil War constitutional amendments, particularly the Fourteenth, adopted the year before young Henning sailed to America with his family. Like the Thirteenth and Fifteenth Amendments, the Fourteenth—with its promises of equal protection and due process of law to all within the nation’s domain—guaranteed “the freedom of the African race and the security and perpetuation of that freedom.” In the decades since Reconstruction, the juggernaut of industrial capitalism and the rise of the social question in the United States had prompted the courts to read expansive new freedoms into those clauses. And so Jacobson’s cause posed the question: did not the liberty protected by the Fourteenth Amendment embrace the right of a free man to control his own body and health? “As the Fourteenth Amendment has so often been appealed to for the protection of property,” Williams concluded, “this plaintiff appeals to it with confidence for the protection of his freedom.”102
The Supreme Court handed down its decision in Jacobson v. Massachusetts on February 20, 1905. Associate Justice John Marshall Harlan, the Court’s longest-serving justice, delivered the opinion for the 7 to 2 majority. Harlan was an interesting choice for the assignment. One of the Court’s more contrarian members, he was perhaps best known for his dissents. He also hailed from Kentucky—one of the states hardest hit by the smallpox epidemics.
At seventy-one, Justice Harlan still cut an imposing figure. A former slaveholder, he had served as a colonel with the Kentucky Volunteers, on the Union side, during the Civil War. Justice Holmes, who didn’t like Harlan much, called him “the last of the tobacco-spitting judges.” Justice Brewer said of Harlan, “He goes to bed every night with one hand on the Constitution and the other on the Bible, and so sleeps the sweet sleep of justice and righteousness.”103
During an era when justices still read their opinions from the bench, Harlan preferred to deliver his opinions extemporaneously, like a good sermon. In his long judicial career, he had unexpectedly emerged as the Court’s conscience on civil rights. When the Court announced the doctrine of “separate but equal” in Plessy v. Ferguson (1896), giving constitutional sanction to Jim Crow apartheid in the South, the man who had once opposed the Thirteenth Amendment because it invaded states’ rights issued a thundering dissent: “The Constitution is colorblind, and neither knows nor tolerates classes among citizens.” One of the Court’s more progressive members, he championed the right of the federal government to break up business trusts, and he often bristled at laissez-faire arguments dressed up in the language of substantive due process. Recently, Justice Harlan had faced down the army of lawyers representing a group of railroad barons and financiers that included James J. Hill and J. Pierpont Morgan, as he delivered the Court’s decision to allow the Roosevelt administration to dissolve their trust, the Northern Securities Company. “Liberty of contract,” Harlan proclaimed, “does not imply liberty in a corporation or individuals to defy the national will, when legally expressed.”104
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?”105
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.
[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.