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.106
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.”107
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.108
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.”109
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.”110
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.
The 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.111
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 i
nterference 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.112
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.”113
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.114
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.”115
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.”116
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.117
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.118
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.119
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.”120
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 con
cerned,” Holmes declared.121
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.”122
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.123
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