EIGHT

SPEAKING LAW TO POWER

It is one of the more ennobling characteristics of the American system of government that the greatest of constitutional questions may arise in the most humble of places. A coach on a Louisiana train. An elementary school in Topeka, Kansas. A pool hall in Panama City, Florida. The seminal case in modern American public health law began at the threshold of a tenement house apartment in a neighborhood filled with wage earners and immigrants.1

On March 15, 1902, Dr. E. Edwin Spencer, chairman of the Cambridge, Massachusetts, Board of Health, called upon Pastor Henning Jacobson in his apartment at 95 Pine Street, in the neighborhood of Cambridgeport, about a mile east of Harvard Yard. A man little known beyond his Swedish congregation at the nearby Augustana Lutheran Church, Jacobson lived with his wife, Hattie, and their sons Fritz, David, and Jacob. Spencer had practiced medicine in Cambridge for thirty years and headed the board of health for almost ten of them. Spencer informed Jacobson of the board’s “vote” declaring smallpox prevalent in the city and ordering all inhabitants who had not been vaccinated within the past five years to submit to the procedure at once or incur a $5 fine, as provided for by the Massachusetts compulsory vaccination law. The penalty was not trivial: the average weekly wage of an American factory worker was about $13, and it is unlikely that an immigrant minister earned much more than that. Jacobson, forty-five, had not been vaccinated since childhood. Spencer offered to vaccinate him “then and there,” free of charge. But Jacobson “absolutely refused.” He was later summoned to court, tried, and found guilty of “the crime of refusing vaccination.” Rather than pay his fine, Jacobson appealed.2

During the next three years, Pastor Jacobson would pursue his cause all the way to the U.S. Supreme Court, prompting the Court’s first ruling on the subject of compulsory vaccination. In the words of Justice John Marshall Harlan, who wrote the opinion for the majority in Jacobson v. Massachusetts, the minister claimed that “a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.” More than a century on, it is difficult to appreciate just how radical that claim must have sounded when first uttered. Henning Jacobson was asking the nation’s highest court to contemplate the true extent of constitutional liberty in the United States.3

The Jacobson case marked the end of the great wave of smallpox epidemics that had swept across the United States at the turn of the century. It also signaled the beginning of the long struggle to reconcile twentieth-century Americans’ ever-increasing expectations of personal liberty with the far-reaching administrative power needed to govern a modern, urban-industrial society.

A man in his prime, with deep-set eyes and a touch of gray in his beard, Henning Jacobson was an unlikely troublemaker. He was an institution builder, the spiritual leader of the Swedish American community of eastern Massachusetts.

Born in rural Yllestad, Sweden, in 1856, he had immigrated to America with his family in 1869. The Jacobsons’ adopted country was in the throes of its post–Civil War Reconstruction and just entering the explosive period of growth that would make it the world’s most productive industrial economy by 1900. As a young man, Jacobson took out naturalization papers and became a U.S. citizen. He studied at Augustana College in Rock Island, Illinois, an institution founded by Swedish Lutheran immigrants in 1860 to prepare young men for the ministry. Jacobson founded the college orchestra. He played the contrabass, anchoring the music with deep-pitched authority.4

Swedish Lutheranism was not a radical religious sect. It was the official state church of Sweden, the faith of the overwhelming majority of Jacobson’s countrymen who migrated to the United States during the peak decades of Swedish immigration after the Civil War. Jacobson received his ordination in Kansas, in the rural heartland of Swedish America. But his future lay in an eastern industrial city. The Church of Sweden Mission Board called him in 1892 to build the Augustana Lutheran Church in Cambridge. He conducted services in his native tongue and became a regular at the Boston docks, meeting newly arrived Swedes and taking them back to Cambridge, where he helped them find jobs and homes. He would remain pastor of the Cambridge church until his death in 1930.

Nothing in the conservative biblical doctrine of Swedish Lutheranism dictated defiance to vaccination, but Jacobson practiced a form of pietism that filled the daily details of life with religious significance. His brief to the Massachusetts Supreme Judicial Court—written by his lawyers but submitted under his name—decried compulsory vaccination as an unconscionable state sacrament. “We have on our statute book,” it said, “a law that compels such a man to offer up his body to pollution and filth and disease; that compels him to submit to a barbarous ceremonial of blood-poisoning.”5

That reference to blood-poisoning held a literal meaning for Jacobson. Though antivaccinationism ran rife in the Swedish countryside, he had undergone vaccination as a child, in accordance with national law. Early childhood vaccination spread quickly in Sweden after 1800 and became compulsory in 1816—nearly forty years before Massachusetts enacted America’s first vaccination law. Sweden was an international public health success story, championed in the American medical literature. Smallpox killed 300,000 people in the country between 1750 and 1800, most of them children. Mortality levels fell sharply after the introduction of vaccination, and by 1900 the disease had virtually disappeared. But young Henning’s vaccination had gone badly. He experienced “great and extreme suffering” that instilled in him a lifelong horror of the practice. Henning and Hattie Jacobson knew all too well the perils of a nineteenth-century childhood. Married for eighteen years by the time a U.S. Census-taker knocked on their door in 1900, they had created five children together, but only three survived. One of Jacobson’s boys (he did not say which) suffered adverse effects from a childhood vaccination, convincing the minister that some hereditary condition in his family made vaccine a particular hazard for them. Jacobson’s belief that smallpox vaccine threatened his family’s existence seemed as deeply ingrained as his religious faith.6

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Pastor Henning Jacobson, circa 1902. COURTESY OF THE EVANGELICAL LUTHERAN CHURCH IN AMERICA

If Jacobson made an unlikely rabble-rouser, neither did the man who stood across his threshold that March day fit the part of the heartless bureaucrat. E. Edwin Spencer had a starkly different medical background and leadership style from his counterpart across the Charles River, Chairman Samuel Durgin of the Boston Board of Health. Unlike the Harvardeducated Durgin, Spencer had studied a form of alternative medicine. Born to a Rhode Island farming family in 1833, he graduated from the Eclectic Medical College in Cincinnati, a young institution that considered itself a citadel of freedom in medical education. The eclectics favored botanical remedies, eschewing “heroic” interventions and mercurial medicines. Spencer moved to Massachusetts and received another degree from the short-lived Worcester Medical College, an eclectic school that received its charter from the state in 1849 over strenuous professional opposition. He settled in Cambridge, where he practiced medicine, held the office of city physician, and earned an appointment to the board of health.7

Working in a field dominated by allopathic physicians, Spencer never severed his ties to “irregular” medicine. A onetime president of the Massachusetts Eclectic Medical Society, he remained an officer of that organization until his death in 1903. Unlike many eclectics, Spencer believed in the theory of vaccination. But he showed a marked reluctance to impose the beliefs of the mainstream medical profession upon unwilling members of the public. It is hard to imagine Spencer relishing a public confrontation with Immanuel Pfeiffer. In his interactions with Jacobson, Spencer proceeded with caution and deliberation, as he had ever since smallpox first broke out in Cambridge several months earlier.

Smallpox had already been spreading for months in Boston and other cities of eastern Massachusetts by the time Cambridge reported its first case on October 25, 1901. The outbreak, in a tenement by the Charles River, still caught the city unprepared. Despite the entreaties of the board of health—a three-member board consisting of Dr. Spencer and two laymen, lawyer William Peabody and engineer Charles Harris—the city government had balked at spending taxpayer money on precautionary measures. Cambridge had no pesthouse, and in recent years vaccination had fallen off. Harvard required all of its students and employees, from the professors to the African American waiters at Memorial Hall, to get vaccinated; during the months to come the university reported not a single case of smallpox. But Harvard and the elite bastions of Brattle Street and Avon Hill stood as islands of privileged homogeneity in a diverse city of 95,000 people that teemed with brickworks, factories, and thickly settled neighborhoods. By the end of December, the city suffered fifteen smallpox cases, three of them fatal.8

Spencer’s response was decisive but temperate. The board established a pesthouse on New Street, near the Fresh Pond marshes, and opened public vaccination stations, where thousands of citizens lined up for free vaccine. The voluntary vaccination effort hit a setback on January 4, when the Cambridge Chronicle reported that Annie Caswell, just five years old, had “died of tetanus, or lockjaw, following vaccination.” The news came less than one month after the last Camden, New Jersey, child had died from postvaccination tetanus. According to the report, the doctors who had tried to save Annie believed “the vaccine used might have been impure or that some foreign substance may have gotten into the sore.” Dr. Edwin Farnham, the chief inspector for the Cambridge Board of Health, swiftly declared his belief that vaccination could not have caused Annie’s death. There would be no investigation.9

As the outbreak of smallpox continued, with twenty-six cases and three more deaths reported during January and February 1902, the board declined to use its full powers. Spencer publicly defended his cautious quarantine policy, saying the city had “no right” to placard the home of a resident merely because she may have been exposed to smallpox. The board must be “absolutely certain” the resident had been infected. And the board held on to compulsory vaccination as a last resort.10

Spencer seemed determined to avoid the sort of public standoffs with antivaccinationists that the more aggressive actions of Durgin’s Boston board had sparked in the streets, the criminal courts, and the State House. That January, as the Boston virus squad stepped up enforcement in working-class neighborhoods, the doctors and police had run up against many determined refusers, including nineteen residents willing to face prosecution rather than submit.11

Charles E. Cate, a South End laborer, refused vaccination even as his wife lay sick in the Southampton Street pesthouse; he served fifteen days in Charlestown Jail rather than pay his $5 fine. As a force of 125 city-employed physicians moved from house to house in East Boston, vaccinating five thousand residents in a single day, a Canadian-born grocer named John H. Mugford refused to allow Dr. John Ames to vaccinate him or his daughter, Eva. Dr. Ames assured Mugford that the vaccine points he carried, on small quills, were perfectly safe. But Mugford did not relent. “I told him I studied the question too long to allow any poison to be put into my system,” the grocer testified at his trial. The court found Mugford guilty on both charges of refusing vaccination. He appealed his case to the Supreme Judicial Court.12

Even when Spencer’s Cambridge board finally took steps to enforce vaccination, it moved with an exceptional degree of caution. The board ordered vaccination on February 27, 1902. Spencer waited two more weeks before dividing the city into districts and sending seventeen physicians from house to house to vaccinate “all the inhabitants they could find.” Thousands were vaccinated in this way, while better-heeled citizens paid their family doctors to perform the procedure. For the city vaccinators, finding the inhabitants was not always easy. Some bolted. Others shooed the doctors from their doorsteps. The board compiled a catalogue, containing a card for every house in a large swath of the city. Each card listed the names of the inhabitants and the date each had last been vaccinated. Vaccine refusers were noted. Among them were Albert M. Pear, a prominent city official, and Pastor Henning Jacobson, whom Spencer visited himself. The board prosecuted no one.13

For a time, it seemed that compulsion in name only was all Cambridge would require. By the time some local residents got around to forming an antivaccination society in April, the epidemic seemed to have subsided. Vaccination slowed to a halt. With the arrival of spring, normalcy returned to Cambridge. It did not last.14

At midnight on June 5, the phone rang at Spencer’s home. The caller reported a dead body at 77 Norfolk Street. When Spencer arrived at the tenement, he was shocked at the appearance of the body—“one of the worst cases of smallpox I had ever seen.” The deceased, an African American boarder, had suffered for weeks with no medical care. Spencer examined the family that lived in the house. Three of the children had smallpox. Spencer had to assume that many in the densely populated neighborhood had been exposed. He called the undertaker, who buried the body that same night.15

Waiting out the incubation period of smallpox could be an unnerving experience. For a week, the board of health heard of no new cases. Then came the deluge: a full-blown outbreak on the blocks around 77 Norfolk Street, a section of Cambridgeport that lay just north of Massachusetts Avenue, the main road running from Central Square into Boston. Between June 14 and 28, ambulances carted nearly fifty infected adults and children to the New Street hospital. Seven from the neighborhood died. The board disinfected homes; closed schools and churches; and renewed its call for universal vaccination. In a single week, 4,000 people flocked to the free station in Central Square, just a few blocks from the infected district. Vaccinators canvassed the neighborhood, one of them vaccinating 260 people in just two days. But conflict impeded the corps’ progress. “Many refuse to be vaccinated,” the Chronicle reported, “while others evade the doctors when they call at the house.”16

The board issued another vote: all vaccine refusers would now be prosecuted. Now accompanied by police, city vaccinators were under strict orders to “see the vaccination mark instead of merely taking a person’s word.” At the end of June, the board reported that “almost all persons” in the infected district had been vaccinated.17

One of the holdouts was Pastor Jacobson, who lived just two blocks from 77 Norfolk Street. None of these details would make it into the legal record of his case, leaving later generations of readers of Jacobson v. Massachusetts with no real context for Justice Harlan’s statement that the Cambridge Board of Health had battled “the evils of a smallpox epidemic that imperiled an entire population.” Jacobson really did take his stand against compulsory vaccination at the epicenter of a smallpox emergency. His own neighbors were falling sick and dying. More than three months had passed since Dr. Spencer first visited his apartment. The stakes had risen dramatically. But the pastor hadn’t budged.18

Meanwhile, at the height of the Cambridgeport outbreak, which would be remembered as the most serious phase of the city’s 1901–2 epidemic, Spencer still refrained from prosecuting anyone. Although his vaccination campaign helped keep the epidemic from reeling out of control, outbreaks continued to strike across the city in July, reaching North Cambridge and the brickyards, where several French Canadian laborers would die of the disease. One of the Cambridge residents afflicted that month was Putnam J. Ramsdell, a Christian Scientist who publicly denounced vaccination. The smallpox killed him.19

On July 17, 1902, Edwin Spencer finally swore out a criminal complaint against Henning Jacobson. Like hundreds of other Americans at the turn of the century, the minister found himself summoned before a local judge, charged with the crime of refusing vaccination.20

Jacobson appeared for trial on July 23 in the Third District Court of Eastern Middlesex County, before Associate Justice Samuel W. McDaniel. Local “inferior courts” like McDaniel’s were the workhorses of the American legal system. Sometimes called “poor man’s courts,” they handled the great mass of everyday civil suits—landlords and tenants suing each other, laborers fighting bosses for unpaid wages, collection agencies demanding payment from debtors—as well as criminal cases below the grade of felony. McDaniel was exceptionally well qualified for the position. A graduate of Harvard Law School, he had served on the school board and the city council.21

Entering the courtroom, Jacobson noticed that he was not alone. Vaccination cases were typically recorded, in the custom of America’s adversarial legal culture, as a conflict involving only two parties: the state versus the lone defendant. But many of these legal conflicts arose from collective, or nearly simultaneous, acts of resistance. Three other men, presumably strangers to one another, waited to be tried alongside Jacobson for the same offense. They were Albert Pear; Frank W. Cone, an inspector with the city water department; and Ephraim Gould, a Canadian-born carpenter. Two other vaccine refusers had been summoned to court that day. Gould’s wife, Maggie, defaulted. Paul Morse, a French Canadian brick burner, had relented and submitted to vaccination. Judge McDaniel dismissed the case against him.22

Of the four remaining defendants, the press showed an interest only in Albert Pear. Dashing and “widely respected,” the thirty-one-year-old Pear was a public figure. The son of a local Republican Party leader, he had served Cambridge for eight years as assistant city clerk, and he had acquired a reputation as “one of the most strenuous antivaccinationists in the city.” As he told a Boston Globe reporter at the courthouse, “I do not propose that the board of health shall dictate to me what medicine I shall put into my system.” Troubled by muscular rheumatism, Pear said his doctor had advised him against vaccination and had given him some “powders” to ward off smallpox.23

Judge McDaniel tried the four defendants together, without a jury. City Solicitor Gilbert A. A. Pevey stated the case against them: the state law authorized local health boards to order vaccination during smallpox epidemics; the Cambridge board had done so; the defendants knew their legal duty but had refused to be vaccinated. Simple as that. Pevey might as well have been prosecuting the men for public drunkenness.24

The first sign of anything unusual in the proceedings was the appearance of a defense attorney—a rarity in an inferior court. James Winthrop Pickering introduced himself as the attorney for Frank Cone, though he appeared to be sizing up all four defendants. A Harvard-trained Boston lawyer, Pickering represented the Massachusetts Anti-Compulsory Vaccination Society. Though no lawyer made a specialty of vaccination cases—there weren’t enough to pay the bills—the cases tended to attract attorneys of a particular bent: self-styled civil libertarians who were unafraid to lose. Like Harry Weinberger of New York—who cut his teeth on vaccination cases before representing Emma Goldman and other radicals in a string of celebrated World War I–era free speech cases—Pickering viewed compulsory vaccination as a particularly insidious example of the creeping, state-imposed regimentation of American life.25

Seven years earlier, Pickering had argued a sensational free speech case alongside his attorney father, James F. Pickering, before the Massachusetts Supreme Judicial Court. Their client, Reverend William F. Davis, was an open-air evangelist who had been arrested repeatedly for delivering sermons without a permit on the Boston Common. Davis’s crowds numbered in the thousands. His case became a cause célèbre among evangelical Christians and free speech advocates. The elder Pickering argued that the Boston ordinance violated Davis’s fundamental right to preach the Gospel. But the argument failed to persuade Justice Oliver Wendell Holmes, Jr. Although Holmes would later become one of America’s greatest defenders of free speech, at the time he showed little regard for individual rights as such, especially when they conflicted with the will of the majority as expressed in law. For the government to forbid public speaking in a public park, Holmes declared, was “no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.” Individual rights were not absolute, natural entities that existed in opposition to the state; a right existed when the public force could be counted on to protect it. If Holmes’s opinion chastened the younger Pickering, the effect did not last .26

Representing Frank Cone in Judge McDaniel’s court, Pickering made a forceful plea against the Massachusetts vaccination law. He said it violated his client’s rights as a citizen of Massachusetts and the United States. Pickering explained that his client was merely acting in accordance with the “common knowledge” that vaccination was dangerous and “no sure preventative of smallpox.” Sensing where Pickering was headed, McDaniel said that he “doubted his power,” as an inferior court judge, to review the constitutionality of a state law.27

Jacobson’s attempt to defend himself was a comedy of errors. But his sole court appearance without a lawyer did offer the purest statement of his grievance. Uncertain how to proceed, Jacobson asked to make a statement to the court. Solicitor Pevey asked him if it would be in the form of an argument or testimony. Jacobson did not know how to answer that. The minister was “finally induced to appear on the witness stand,” where he started to explain his belief that his physical condition and experience “did not warrant him in being vaccinated.” Pevey objected, and McDaniel sustained. The state vaccination law, the judge explained, did not allow any exceptions for adults to a health board’s order—even if an individual’s medical history made the procedure dangerous for him. (The state code did make such an exception for children, if they could provide a doctor’s certificate to that effect.) After Pear indicated that he, too, planned to argue that he was an unfit subject for vaccination, Judge McDaniel told him to sit down.28

McDaniel found all four men guilty and fined each $5. Ephraim Gould had had enough. He would pay the fine. The other three defendants—Pear, Cone, and Jacobson—appealed their cases to the Middlesex County Superior Court, the next rung up the judicial ladder. Each would receive a new trial, this time before a jury.29

Then and there a constitutional test case was born. And its name (at least for the time being) was Commonwealth v. Pear. The Massachusetts Anti-Compulsory Vaccination Society decided that Albert Pear was their man to test the state law. He must have seemed the obvious choice. Several of the Boston and Cambridge defendants seemed motivated to go the distance. But Cate, the South End laborer, had already served his jail time. Jacobson and Mugford, the East Boston grocer, were both immigrants, which may have made them less than ideal plaintiffs. Moreover, Mugford’s litigation was complicated, legally and morally: he had been convicted of refusing vaccination for himself and neglecting to have his child vaccinated. (Cone did not pursue his case beyond the superior court level.)

Commonwealth v. Pear, by contrast, distilled the vaccination question to its most controversial form. Here stood an adult, male, natural-born citizen, taxpayer, and public servant—an American in the prime of manhood—being told by the state how to take care of his own body. If that failed to move the brethren of the Supreme Judicial Court, nothing would. Besides, Pear was one of the antivaccinationists’ own. Pastor Jacobson had attended a meeting or two, but he was not a man of the movement. There is no evidence to suggest that he ever used the power of his pulpit to urge his flock to refuse vaccination.30

When Pear appeared before the Middlesex Superior Court for his second trial, on November 13, 1902, all knew that the proceedings were merely “the second necessary step” to getting his case before the Supreme Judicial Court. Now represented by Pickering, Pear offered no evidence. Pickering asked Judge William Cushing Wait to instruct the jury that the state law was void because it violated “the rights secured to the defendant by the preamble of the Constitution of the United States.” He asked Judge Wait for further instructions to the effect that the law violated the Constitution’s Fifth Amendment, the Fourteenth Amendment, and several provisions of the Massachusetts constitution, including its famous “free and equal” clause, which the Supreme Judicial Court had used in 1783 to effectively abolish slavery in the state.31

Pickering’s plea for instructions revealed his ambitions for the case. He was already preparing the ground for an appeal to the U.S. Supreme Court. The federal constitutional claims he was making were unorthodox. The status of the Preamble—which declared it among the Constitution’s purposes to “secure the blessings of liberty” to the American people—was uncertain at best. And by invoking the Fifth Amendment, Pickering seemed ready to make an argument that the Fourteenth Amendment applied the Bill of Rights to the states, an argument the Supreme Court had rejected three decades earlier in the famous Slaughter-House Cases. Lawyers making personal liberties arguments at the turn of the century had to be creative.32

Rejecting Pickering’s proposed instructions, Judge Wait advised the jurors that if they believed the evidence showed that Pear had violated the law (which no one disputed it did), they would be warranted in finding him guilty. The jurors never left their seats. They found Pear guilty. The court accepted Pickering’s motion to present a bill of exceptions, so the case could go before the Supreme Judicial Court.33

The Massachusetts Anti-Compulsory Vaccination Society met in Tremont Temple Baptist Church on December 1 and voted to continue to support Pear in his “contest with the board of health.” Tensions continued to mount in the Boston area. Forty-one residents of Somerville had refused vaccination. Officials there had decided to await the outcome in the Pear case before prosecuting anyone. In Cambridge, at least three more residents had been summoned to court since July for refusing vaccination. All three submitted to the procedure rather than face prosecution and the inevitable fine.34

Henning Jacobson, meanwhile, continued to pursue his case. His Superior Court trial had been postponed until February 1903. Although The Boston Globe indicated the antivaccination society was backing Pear as its test case, Pickering was now representing Jacobson, too, presumably on the society’s dime. Jacobson even attended one of the society’s monthly meetings. According to the Globe, the minister told the audience of “the terrible experiences of himself and children from vaccination, and of his own knowledge of the uselessness of the practice.”35

With Pickering at his side, Jacobson stood trial in Middlesex Superior Court, before a jury of his peers, on February 27, 1903. The trial covered the same ground as Pear’s, with one major difference: Jacobson had a case he wanted to make to the jury. From those first awkward moments in Judge McDaniel’s courtroom—and, one imagines, earlier, when Spencer first appeared at his door—the minister had shown an overwhelming desire to explain himself. He wanted to show that his refusal to obey the law was, as he now proposed to prove to this jury, “prompted by his knowledge of the danger and his dread of the terrible consequences of vaccination.”36

Jacobson offered to prove fourteen points “by competent evidence.” Many of the points had the flavor of an antivaccinationist pamphlet: vaccination caused injury, disease, and death; “as a rule,” it rendered a person temporarily incapable of “performing his usual duties and labors”; vaccine manufactured in America was often “impure”; its “evil and dangerous effects” included tetanus and syphilis; sanitation and isolation were the only reliable safeguards against smallpox. Jacobson may have believed all of these points, but their inclusion in his case was clearly the price for the support of the antivaccination society. He saved his two most personal points for last. In childhood he had experienced “great and extreme suffering, for a long period, by a disease produced by his vaccination.” And he had “witnessed a similar result of vaccination in the case of his own son, and had personally known a great number of other instances of the same kind.” Jacobson’s will to fight against compulsion arose from those experiences rather than from antivaccination ideology.37

Judge Wait ruled that all of those assertions were “immaterial.” He excluded them all. And so in Pickering’s request for instructions to the jury, the attorney added another item to those he had asked for in Pear’s case. He asked the judge to tell the jury that the board of health order was unreasonable because it made no exceptions for individuals to whom vaccine posed a special risk. Judge Wait refused. The jury had little choice but to find Jacobson guilty. A few days later, Pickering filed his exceptions for appeal to the Supreme Judicial Court. The state’s high court could consider Jacobson’s and Pear’s cases together; their causes were once again joined, now as “plaintiffs-in-error.”38

Constitutional controversies often outlive the events that gave rise to them. The Cambridge smallpox epidemic had run its course by the winter of 1903, when Assistant District Attorney Hugh Bancroft, representing the Commonwealth, and J. W. Pickering and his new cocounsel, Henry Ballard of Vermont, representing Pear and Jacobson, prepared their briefs for the Supreme Judicial Court. All told, 187 patients had been taken to the New Street hospital. Thirty-five Cambridge residents had died. The board of health had vaccinated 30,000 people, private physicians 26,000. And the citizens now held the bill: the highest tax rate in the city’s history. The epidemic looked to many like yet another verdict for vaccination. Of the cases isolated at New Street, none had been vaccinated within the past five years. On January 19, 1903, a few months after smallpox loosened its grip on the city, E. Edwin Spencer died at his Cambridge home, just two weeks shy of his seventieth birthday.39

The three lawyers had a different historical subject in mind as they compiled their briefs in the cases of Commonwealth v. Pear and Commonwealth v. Jacobson. The cases compelled them to come to terms with the most contentious issue in American constitutional law since the Civil War: the explosive growth of the police power and the great wave of constitutional struggles that had grown up with it.

Bancroft, a novice who graduated from Harvard Law School in 1901, knew enough to understand that he had the easy side of the case. His briefs in the two cases were nearly identical. “The legislature has an extensive undefined power,” he said in both of them, “usually called the police power, to pass laws for the common good.” The legislature’s “wide discretion cannot be controlled by the courts unless its action is clearly evasive.” Whether the theory of vaccination was sound or not was a question for lawmakers, not judges. But if the Supreme Judicial Court should choose to consider that question, it would surely take notice of the fact that vaccination is “the most effective known preventive of one of the most dangerous diseases to which the human race is subject.”40

The briefs for the “plaintiffs in error” contained a few lunatic flourishes. (Again, the bodies of the two briefs were virtually identical; but Ballard contributed an addendum to Jacobson’s brief in order to address the issue of the excluded evidence.) Did Pickering and Ballard really expect the members of the Supreme Judicial Court to swallow their argument that compulsory vaccination was “a greater outrage than the scalping of a living victim by an Indian savage”? Or that this state-imposed “rite” was a “form of worship of the Sacred Cow?” Like the antivaccinationist literature on which they drew, the briefs decried vaccination as a barbaric practice unworthy of a civilized people.41

But the lawyers’ argument for Albert Pear and Henning Jacobson cut much deeper. Their briefs raised the central question of American constitutional law at the turn of the century: Where should the courts draw the line between police power and individual liberty? Was there a line at all?

The Massachusetts Supreme Judicial Court enjoys pride of place as “the oldest court in continuous existence in the Western Hemisphere.” Known in colonial times as the Superior Court of Judicature, the institution opened in 1692 and was immediately busy with the trials of accused witches from Salem. The court acquired its modern name in 1780, when the new Commonwealth of Massachusetts ratified its state constitution, drafted by John Adams (and now the world’s oldest written constitution). In the nineteenth century, the Supreme Judicial Court established itself as a leader in the development of an American common law. Massachusetts industrialized early, and its high court handed down influential decisions in property, torts, and master-servant law, helping to lay the legal foundation for American capitalism. The office of chief justice had been occupied by such legal luminaries as Adams, Theophilus Parsons, and Lemuel Shaw. Marcus Perrin Knowlton, who took it upon himself to write the court’s opinion in the vaccination case, had assumed that position only in December 1902, when President Theodore Roosevelt appointed his predecessor, Oliver Wendell Holmes, Jr., to the U.S.Supreme Court. Holmes stepped into the vacancy left by another former chief justice of the Massachusetts court, Horace Gray.42

In its storied history, the Supreme Judicial Court had more than once had occasion to consider the scope of the police power. Chief Justice Shaw’s 1851 decision in Commonwealth v. Alger remained, more than half a century later, the definitive American statement on the subject. Assistant D.A. Bancroft cited it prominently in his briefs for the vaccination case. Alger involved a classic police power controversy, pitting one citizen’s property rights against the right of the legislature to defend the people’s welfare. The state legislature had established a wharf line in Boston Harbor, beyond which no private structure could be built. The law aimed to preserve the free use of the harbor as “a common and public right.” A Boston jury found Cyrus Alger guilty of breaking the law by building a pier, on his own property, that extended beyond the line. On appeal, the Supreme Judicial Court upheld the law in a resounding defense of the police power. Shaw wrote:

We think it is a settled principle, growing out of the nature of a well-ordered society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. . . . Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law[.] The power we allude to is . . . the police power; the power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the Commonwealth.... It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise.43

The police power enjoyed the sanction of the state and federal constitutions, but it did not originate there; it flowed from the wellspring of sovereignty itself. The concept of “police” had deep roots in English and European traditions of governance. Its scope far exceeded the law enforcement function of municipal police forces, which first appeared on the streets of New York, Philadelphia, and Boston during the 1840s and ’50s. When considering the almost indeterminate scope of the police power, nineteenth-century American jurists referred to two great common law maxims: sic utere tuo ut alienum non laedas (use your own so as not to injure another) and salus populi suprema lex est (the welfare of the people is the supreme law). In “well-ordered societies,” state governments and municipalities served the people’s welfare in ways too numerous to list: they upheld public morals by policing saloons and brothels, ensured public safety through fire and crime prevention, governed the marketplace through price regulations and licensing, and protected the public health by policing noxious trades and enforcing quarantines to check contagious diseases.44

As significant as Shaw’s expansive meditation on legislative power was his parsimonious discussion of individual rights. Later generations of Americans would imagine the nineteenth century as the epoch of rugged individualism and laissez-faire. But the century’s preeminent state judge recognized a very different reality. Individual rights—even rights as elementary to American law and politics as property—were “social” and “conventional,” not natural entities inherent in human beings. As citizens like Cyrus Alger learned time and again, in the name of the common good state and local governments trod heavily on property rights and personal liberties, with no obligation to compensate private parties for their losses. Like other American judges, Shaw recognized certain constitutional restraints on police power, but they were few. Laws must apply equally to all under like circumstances, to avoid creating an undue advantage for particular individuals. (Sadly, Shaw found room enough in this “equality” principle to permit the Boston schools committee to require African American children to attend separate schools.) In addition, “ex post facto laws” were forbidden. Finally, government interferences with individual rights must be “reasonable”—they must have a clear relation to some legitimate legislative purpose. Beyond those outer limits, until the late nineteenth century most courts stayed out of the way of police power.45

That included federal courts. Prior to the Civil War, state and local police measures were virtually unreviewable by the federal courts, unless a measure invaded an area of exclusive congressional control (such as the power to regulate interstate commerce) or violated some specific state-restraining provision of the U.S. Constitution, like the Contract Clause. Even those limitations were controversial. And as Chief Justice John Marshall himself had reminded the American people in Barron v. Baltimore (1833), the U.S. Constitution’s Bill of Rights restrained only the federal government. If a state subjected prisoners to cruel and unusual punishments, forbade newspapers to speak ill of the legislature, or seized private property for public use without compensation, the citizens had no remedy in federal court. They had to seek relief in their state courts under their state constitutions.46

And then the war came. The Civil War transformed the nation, remade the Constitution, and attached individual rights more closely than ever before to the federal government. Still, the sweeping nation-building events of the Reconstruction period—including the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments—had remarkably little immediate impact on the theory and practice of the police power. The U.S. Supreme Court ensured that this was so.

The Court’s first opportunity to consider the Fourteenth Amendment involved a public health law. In 1873, delivering the majority opinion in the Slaughter-House Cases, Justice Samuel F. Miller announced that the police power had survived the war intact. The decision affirmed a Louisiana statute that had incorporated a massive slaughterhouse, located downriver from New Orleans, and forbade the slaughtering of animals elsewhere in the city. The law aimed to protect the public health by containing a noxious trade. But the law’s monopoly provision proved controversial. The plaintiffs, a group of white butchers, charged that the law violated their new rights under the first two Reconstruction amendments. Justice Miller made quick work of the butchers’ Thirteenth Amendment claim; the law, he said, did not create a system of involuntary servitude.47

The Fourteenth Amendment claims could not be so easily dismissed. The butchers grounded their claims in the amendment’s crucial first section, which had established a framework of new constitutional restraints on state power. The passage forbade any state to “abridge the privileges or immunities of citizens of the United States”; to “deprive any person of life, liberty, or property, without due process of law”; or to deny to any person the “equal protection of the laws.”48

But Justice Miller cautioned the American people that the Fourteenth Amendment had not turned the Court into “a perpetual censor” upon the states. The equal protection clause targeted only state action that discriminated against African Americans; Miller said the Court “doubt[ed] very much” whether any action not directed against “Negroes as a class . . . would ever be held to come within the purview of this provision.” The due process clause gave the federal government power to prevent the states from violating the procedural rights already protected from federal intrusion by the Fifth Amendment. Miller’s opinion read the “privileges or immunities” clause narrowly. That phrase, he said, referred to a limited array of long-standing rights, already protected by federal law, such as the right of all citizens to come to the seat of the national government; it did not apply the Bill of Rights to the states. To uphold the butchers’ claims, Miller concluded, would effect a great “departure from the structure and spirit of our institutions.” It would “fetter and degrade the State governments” by subjecting them to federal oversight “in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character.”49

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 the 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

In the absence of an actual Supreme Court ruling, however, the outcomes of the school vaccination cases varied from state to state, fostering a degree of uncertainty that encouraged more litigation. As Pickering and Ballard could plainly see from the state court reports in their libraries, the general trend in the case law since Duffield was to uphold the power of legislatures, health boards, and school boards to require vaccination for admission to the public schools. Parents argued that vaccination was a positive right that the states could not deny (especially to the children of taxpayers). But the courts responded with a very parental-sounding lesson: a public education was a privilege, not a right, and when the state granted a privilege, it had the authority to dictate the conditions under which that privilege might be enjoyed. As Hugh Bancroft argued in his briefs for the Commonwealth of Massachusetts in the Pear and Jacobson cases, the schools cases represented a solid line of precedents supporting compulsory vaccination. But the briefs contained a few surprises. Vaccination plaintiffs had won some major concessions from the courts.69

Wisconsin led the way with an 1897 ruling. The state board of health had ordered that no child be admitted to any school in the state without a certificate of vaccination, signed by a “reputable physician.” In covering private, parochial, and public schools, the measure was exceptionally broad. The board of education of Beloit ordered principals and teachers to enforce the provision. At the time, only a few cases of smallpox existed in the entire state, and Beloit had none. A city resident named E. J. Adams, a Christian Scientist, refused to allow his three schoolchildren to be vaccinated, stating his belief that “the laws of God permit no such operation.” The children were expelled. Adams went to the Rock County Circuit Court and secured a peremptory writ ordering the school board to reinstate his children. The era’s record of vaccination litigation was filled with such local victories, but they often fell on appeal. But Adams won again at the state level, sparking a minor sensation in the press.70

Clearly, for Adams, his case raised a question of religious liberty. But his legal team, led by a prominent Wisconsin Republican named Ogden H. Fethers, assaulted the board of health’s vaccination order on different grounds. The legislature, Fethers argued, could create a board of health, but it could not delegate to that agency its power to make laws. And the board’s rule, an absolute mandate that required children to get vaccinated even in the absence of an epidemic, would have been void even if enacted by the legislature itself, because such a requirement was “unreasonable and not enacted by necessity.”71

Fethers’s argument raised a question of high importance in the Progressive Era: what were the limits of administrative power—especially when important liberties were at stake? The modern administrative-welfare state was still in its infancy. But municipalities, states, and even the federal government were rolling out new administrative agencies—from railroad commissions to parole boards—to govern new fields of social and economic regulation. The new administrative bodies made their own rules, adjudicated cases, and exercised extraordinary discretionary powers. Critics protested that the rule of law was withering away in America. State boards of health, which first appeared in some places as early as the mid-nineteenth century, were among the oldest administrative agencies. And Fethers was asking the Wisconsin Supreme Court to rein in their rule-making powers.

Remarkably, the court did just that. The opinion in Adams v. Burdge was written, with passion, by sixty-year-old Justice Silas U. Pinney, a former mayor of Madison and a veteran on the court. Pinney noted that the board of health was “purely an administrative body” and one “not directly responsible to the people.” (The Wisconsin Supreme Court, unlike the health board, was an elective body.) The board had “no legislative power, properly so called, and none could be delegated to it.” Pinney conceded that in order to fulfill its statutory purpose, the board must have authority to make reasonable regulations. But in the absence of a public emergency, the board’s sweeping vaccination order was not reasonable. “[T]here was no epidemic of smallpox in or near the city of Beloit,” Pinney wrote, “and yet, by an arbitrary rule, as by a single stroke of the pen, every child of school age, throughout the entire state, that had not been vaccinated, was excluded from the common schools.” The rule would not stand.72

Adams v. Burdge was roundly praised and condemned as a victory for religious freedom. The New York Times lamented that once a state court yielded to the conscience claims of Christian Scientists and antivaccinationists, legalized polygamy was around the corner. But Justice Pinney had in fact said little about religion. He did say that since the police power pressed upon “the natural and private rights of individuals,” it must be founded upon “the law.”73

The Adams case set an important precedent for holding modern administrative power accountable to law. Its logic was widely adopted. In three more cases from 1897 to 1902, state supreme courts imposed clear limitations on the power of administrative boards to order pupils to get vaccinated. In the absence of a state law mandating vaccination as a condition for admission, no board could impose such an order unless confronted with the “pressing necessity” of a smallpox epidemic. Ernst Freund described the rule as a “present danger” standard. Some fifteen years before Justice Oliver Wendell Holmes, Jr., immortalized this phrase in the American law of free speech, state courts had articulated this civil liberties concept in order to protect citizens against unwarranted government health orders.74

Other parents pressed state courts for relief from the double bind that compulsory education and compulsory vaccination measures imposed upon them. A public education might be a privilege, but in a growing number of states compulsory education laws now made that privilege a legal obligation for parents who could not afford to send their children to a private school. By a bare 3 to 2 majority, in 1901 the Michigan Supreme Court ordered the Kalamazoo school board to admit the healthy but unvaccinated children of George R. Mathews, a Christian Scientist. The smallpox epidemics hadn’t reached Kalamazoo. The dissenters in the case made the old argument that denying admission to unvaccinated children did not constitute compulsory vaccination. But the court’s majority would not have it. Under the state’s education law, a parent was liable to a fine or imprisonment for failing to send a child to school. “The practical result, if this rule can be sustained, is to give the board of education the power to compel vaccination,” the court declared. Since the legislature had never directly given the board that authority, “the school board exceeded its power.”75

And so by the time the Massachusetts Supreme Judicial Court heard the Jacobson and Pear cases, the school vaccination cases had established a complex line of precedents. No court had invalidated a statewide school vaccination law, but at least five courts had imposed some form of “present danger” standard as a limitation on the rule-making powers of boards of health and education. As the Central Law Journal proclaimed after the Mathews victory, “Compulsory vaccination is evidently a gross interference of individual liberty and can be justified on only one ground—an ‘overwhelming necessity,’ which is the only real justification of what is known as the police power.” Overruling necessity—the community’s right of self-defense—was a very old rationale for police power. But it had never been the only one. The vaccination litigants were pressing the courts toward a subtle shift in their understanding of that doctrine. Once a phrase that could justify all manner of state action, “overruling necessity” was taking on a double life as a legal standard for limiting official action—particularly of administrative bodies—whenever personal liberties were at stake.76

Of course, Albert Pear and Henning Jacobson were not schoolchildren. In the thirty years since Slaughter-House, laws that interfered with the economic rights of men—whether for their own good or for the good of the community—had become vulnerable to substantive due process arguments. In 1886, the Pennsylvania Supreme Court invalidated a state law that forbade iron mills to pay their workers in company scrip, rather than real currency. The court declared the provision “utterly unconstitutional and void” because it prevented two competent individuals—employer and employee—from freely contracting with each other. Never mind that the companies always had the upper hand. The court called the scrip ban “an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as a citizen of the United States.” Since 1886 state courts had repeatedly used similar reasoning to invalidate state laws that set maximum hours or minimum wages for American workingmen. If the government couldn’t tell a grown man to call it a day after eight or ten hours on a sweltering factory floor, could it tell him to bare his arm and take his medicine?77

During smallpox epidemics, local councils and boards of health issued general vaccination orders, sometimes under the express authority of a state law (as the Cambridge Board of Health had done) but more often not. These orders were not directed at children seeking access to a public institution; they applied, at least officially, to everybody. Whether carried out in big cities by virus squads or in small towns by sheriffs or physicians, these orders were wildly unpopular, especially among the workers, African Americans, and immigrants who bore the brunt of them.

Reports of excessive force enraged some judges. In 1895, Judge William Gaynor of the Kings County Supreme Court (a trial-level court) lashed out against Brooklyn’s overzealous health commissioner. Z. Taylor Emery had ordered vaccination raids without authority of a state law. In habeas corpus proceedings, Judge Gaynor (the future mayor of New York) ordered the release of two Brooklyn expressmen, William H. Smith and Thomas Cummings, who had been quarantined in their own Franklin Street stable after they refused to be vaccinated. “The discretion you claim is limitless,” Gaynor thundered at Emery. “I am of the opinion that you have no such power.” The New York Court of Appeals later upheld Gaynor’s ruling: Commissioner Emery had interfered not only with the men’s personal liberty but with their “pursuit of a lawful avocation” without proving that their isolation was warranted by “an extraordinary and dangerous emergency.” When vaccination orders reached adult men, personal liberties concerns often evoked the contemporary struggle over economic rights—a fact that plaintiffs’ lawyers, including Pickering and Ballard, sought to use to their clients’ advantage.78

Pickering and Ballard could find only three state supreme court cases that considered the constitutionality of a general vaccination measure like the one their clients had violated. Two were decided in North Carolina, the other in Georgia—southern states hard hit by “mild type” smallpox. As C.P. Wertenbaker had so often observed during his smallpox work, southern communities were riven with conflict over vaccination, due in large part to the harsh effects of the bacteria-laden dry points in wide use there. Assistant D.A. Bancroft urged that the three cases had raised the “precise question” of the Pear and Jacobson litigation, and in all three cases, “statutes substantially the same as the one before us have been upheld.”79

In Morris v. Columbus (1898), the Georgia Supreme Court upheld an 1890 state law that gave municipalities the right to compel vaccination in order to prevent smallpox. The litigation arose from the prosecution of three men in Columbus, where local officials believed an epidemic was “imminent.” One of the men was a factory worker who had refused to be vaccinated at his workplace. “In no proper sense can the act of the General Assembly attacked in this case be said to deprive the plaintiffs in error of any right without due process of law, or to deny them the equal protection of the laws,” the state court declared. “We do not propose to enter into a discussion as to whether or not [vaccination] is a preventive of smallpox.” Five months later, the same court held that municipalities were not liable for injuries caused by impure vaccine used by their health officers. If the Supreme Judicial Court wanted a model of unquestioning judicial deference to public health power, Georgia was it.80

The North Carolina Supreme Court had also defended the right of municipalities to issue general vaccination orders when authorized by a state law. In 1900, the court reviewed the case of the Burlington merchant W. E. Hay, who had been prosecuted for violating a local vaccination ordinance. Hay told the local trial court that he had been advised that the operation would be dangerous for him due to his physical condition. To test the validity of the ordinance, the local court issued a special verdict for the defendant, enabling the city solicitor to appeal. The supreme court approved compulsory vaccination with the resounding declaration that “Salus populi supreme lex, ‘the public welfare is the highest law,’ is the foundation principle of all civil government.” The court even marshaled government statistics to show that the legislature had good reason to believe vaccination protected communities against smallpox. Writing for the majority, Justice Walter McKenzie Clark, a Confederate Army veteran, compared the community’s right to vaccinate to its right to repel an invasion. He added that modern social conditions—the incessant movement of people, goods, and viruses from place to place—made this method of checking smallpox ever more necessary.81

The next year, the North Carolina court heard the case of Koen Levin. An itinerant Jewish peddler, Levin sued the Piedmont town of Burlington for “wrongful arrest, detention, and ill treatment.” Levin’s case presented public health at its most extreme. In February 1899, the peddler stayed overnight at Mary Ingle’s boardinghouse. The next morning, he drove his wagon nine miles to the Altamaha factory, where he planned to sell his wares. A Burlington police officer caught up with him there, arrested him, and carried him back to the town. Evidently, another boarder at Ingle’s house had come down with smallpox. The officer took Levin back to the boardinghouse, where he was kept in quarantine for twenty-one days, forcibly vaccinated twice, and even made to pay for the vaccine. He was also ordered to wait on the patient. (It is hard to imagine that Levin’s status as a Jew had nothing to do with his treatment.)82

The peddler sought $5,000 in damages for the “great indignity” of this experience, which had caused him “great agony of mind” and the loss of several months’ business, as the people of the area, knowing he had been exposed to smallpox, wanted nothing to do with him. Town officials did not dispute Levin’s version of events. As Chief Justice David Furches put it, no one denied Levin had “received heroic treatment and was damaged.” But he added, “it is not every damage that creates a cause of action.” Citing the principle of sovereign immunity, Furches said, “a municipal corporation can not be held liable in damages for the enforcement of a public law for the public good.”83

Levin was an unblinking affirmation of the police power, and Pickering and Ballard knew Bancroft would cite it. But as the attorneys noted in their own briefs for Pear and Jacobson, the decision was controversial. (The Central Law Journal had issued “a trumpet blast of indignation.”) Unlike Bancroft, they recounted the ugly facts of the case for the Massachusetts justices to mull over. No other state court decision had even indirectly approved of physical-force vaccination.84

And even the North Carolina court, in State v. Hay, had said some things that Pickering and Ballard recognized ought to strengthen Jacobson’s case. Perhaps owing to W.E. Hay’s status as a leading local merchant (rather than an itinerant peddler), the court had disliked the idea of a man being compelled to undergo vaccination against his doctor’s advice. The state court upheld the vaccination order, but as Pickering and Ballard noted, there was more to the case than a simple affirmation of the law. The court conceded that for some individuals, personal health conditions might make vaccination unsafe, providing “a sufficient excuse for noncompliance.” Even though the Burlington ordinance (like the Massachusetts vaccination law, at least as far as adults were concerned) provided no health exemptions, the court ruled that Hay ought to have the right to make his case for a health exception directly to a jury.85

Pickering and Ballard highlighted the concurring opinion in the same case. The opinion eloquently expressed the unease that many judges felt toward the extraordinary administrative power of public health officials. It happened to be written by Justice Robert M. Douglas, the son of the legendary Illinois senator Stephen A. Douglas. Justice Douglas went even further than the majority opinion in reading a health excuse into the law. “[T]here may be cases where vaccination, owing to certain exceptional conditions of health, may be dangerous or even fatal,” Douglas said. “We cannot suppose that the Legislature intended to enforce the rule under such cases.” If the letter of the law did not provide such an excuse, the courts would. After all, it was in the courts, Justice Douglas admonished, “where all of the rights of the citizen are determined and administered.” A court should not grant a public health officer “any presumption of professional infallibility. He must take his chances before the jury, like any other witness.”86

The North Carolina Supreme Court had articulated a novel principle of public health law that is now called “harm avoidance.” Ballard applauded Justice Douglas’s opinion. He wrote, “No better brief can be written, or better argument made” in support of Jacobson’s contention that the Massachusetts statute was unreasonable because it lacked a health exemption for adults. And the North Carolina court had also provided a precedent for the admissibility of precisely the sort of medical evidence that Jacobson had tried twice to put before the trial courts. As Douglas had said in Hay, “the defendant has a right to be heard.”87

And so, Pickering and Ballard built their case for Pear and Jacobson on the shoulders of the many vaccination litigants who had come before them. Although the case law since 1890 had generally affirmed the right of the state to compel vaccination under its police powers, during the past few years state judges had imposed some meaningful conditions on that right. The “present danger” standard limited the rule-making discretion of administrative bodies. The harm avoidance principle presumed that personal health conditions could be a defense against prosecution in vaccination cases. Of course, the Supreme Judicial Court of Massachusetts had the right to make up its own mind. Pickering and Ballard urged the justices of the renowned court to abolish compulsory vaccination just as their predecessors had abolished slavery in the state 120 years earlier.

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 journals 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

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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.

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 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.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 concerned,” 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

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.”124

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.”125

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.

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