Henning Jacobson, a 50-year-old minister, put his faith in his own liberty. Back in his native Sweden, he had suffered a bad reaction to a vaccine as an infant, struggling for years with an angry rash. Now he was an American citizen, serving as pastor of the Swedish Lutheran Church in Cambridge, Massachusetts. That gave him the full protections of the U.S. Constitution.
So when the Cambridge board of health decided that all adults must be vaccinated for smallpox, Jacobson sought refuge in the Constitution’s promise that no state shall “deprive any person of life, liberty or property without due process of law.”
The year was 1904, and when his politically charged legal challenge to the $5 fine for failing to get vaccinated made its way to the Supreme Court, the justices had a surprise for Rev. Jacobson. One man’s liberty, they declared in a 7-2 ruling handed down the following February, cannot deprive his neighbors of their own liberty — in this case by allowing the spread of disease. Jacobson, they ruled, must abide by the order of the Cambridge board of health or pay the penalty.
“There are manifold restraints to which every person is necessarily subject for the common good,” read the majority opinion. “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.”
Jacobson’s claim was essentially the same as that taken for granted by vaccine skeptics today: That they have the personal liberty under the U.S. Constitution to decide for themselves whether to take the shot. Backed by a group called The Anti-Vaccination Society, Jacobson made a formidable case, incorporating many of the same arguments about freedom from government interference that are ricocheting around cable TV this summer, and mouthed by politicians. Donald Trump, after recommending at a rally on Aug. 21 that his supporters get vaccinated, quickly added after a smattering of boos: “But you do have your freedoms you have to keep. You have to maintain that.”
The question of whether those freedoms include refusing a legally mandated Covid-19 vaccine, should any government implement such a requirement today, has yet to come before the Supreme Court — or any court. But in the event that it does, the 116-year-old case brought by Henning Jacobson would be the standing legal precedent. In deciding whether the rules that the Jacobson decision rendered for smallpox would apply to Covid-19, today’s court would need to reckon with a different medical landscape, as well as the freighted politics of the moment. The justices would also find themselves grappling with the legacy of the man who wrote the opinion, Justice John Marshall Harlan.
Known for his highly principled dissents, and most famously for taking a lonely stand in favor of Black rights in the late 19th Century, Harlan in this case wrote for a clear majority of the court. He concluded: “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”
That last is a classic Harlan sentence, cutting through all the nuances and caveats to reach an essential point of justice. His balancing of the rights of vaccine skeptics against the rights of the community seems especially compelling at a time when those who refuse to get vaccinated are fueling fresh outbreaks and inviting the creation of variants that pierce the defenses of those who are fully immunized. And his thinking could have special resonance: While many of his colleagues have faded into history, today’s justices, conservatives and liberals alike, profess themselves to be deep admirers of Harlan.
I studied the court’s 1905 decision in Jacobson v. Massachusetts, along with the briefs of the lawyers who argued the case, because of my recent book about Harlan, The Great Dissenter. As the title suggests, the book focuses on Harlan’s dissents, not his majority opinions. But what struck me wasn’t just the contrasting ways that Harlan’s principles played out in majority opinions and dissents, but the extent to which the Jacobson case was so eerily on-point to current debates about Covid-19.
Could Harlan’s notion of competing freedoms transform the still-simmering debate over vaccine mandates, which now seem more possible with full FDA approval of the various vaccines either in place or on the horizon? Certainly, he offers a powerful rebuttal to those who feel that personal liberty is only in play when someone is compelled to be vaccinated: The Jacobson holding suggests that other people, from co-workers to classmates to neighbors, have a corresponding liberty interest in being free from infectious disease. Like those who inhale passive smoke, they, too, are affected by a decision that others deem a matter of personal choice.
And the court’s ruling makes clear that a community in danger has every right to protect itself.
For the people of Cambridge, Massachusetts — then, as now, a bastion of academic liberalism — the great plague of the first decade of the 20th Century was smallpox, an infectious disease so virulent that about a third of those who caught it would eventually succumb. The main source of protection was vaccines, which were safely applied in most cases but sickened some people.
Henning Jacobson, apparently, was one.
The Evening Herald of Fall River, Massachusetts, painted his medical picture this way on Nov. 17, 1904: “He was born in Sweden and until he was vaccinated in infancy was in excellent health. Six days after the vaccine he was troubled with a hot burning rash which continued for years. He needed constant and efficient care, such as being wrapped in hot sheets, etc.” As an adult, the Herald reported, Jacobson had urged his 18-year-old son to avoid vaccination, but the boy was threatened with losing his job if he didn’t protect himself against smallpox, so he took the shot. He, too, had painful side effects, leaving his arm in a sling for six months.
The fact that both father and son had suffered bad reactions no doubt led Jacobson to assert in his court papers that “impurity of the blood” can trigger injury and even death in certain people if they choose to take the smallpox vaccine. That was one of numerous medical claims that Jacobson presented to the court. All would sound familiar to today’s vaccine skeptics, ranging from reasonable-seeming contentions like “the result of vaccination cannot be foretold in any case,” to balder assertions such as “vaccination causes loathsome diseases,” to statements that may be technically true but carry more than a tinge of conspiracy, including “vaccination does not prevent smallpox but spreads the disease.”
Jacobson vowed to prove the truth of all those statements and more, but the courts wouldn’t have it.
“The only ‘competent evidence’ that could be presented to the court to prove these propositions was the testimony of experts, giving their opinions,” concluded the Supreme Judicial Court of Massachusetts, which Harlan quoted in the Supreme Court decision. “Assuming that medical experts could have been found who would have testified in support of these propositions, [the court] would have been obliged to consider the evidence in connection with facts of common knowledge, which the court will always regard in passing upon the constitutionality of a statute.”
Those facts, the court stated, include “that for nearly a century, most of the members of the medical profession have regarded vaccination, repeated after intervals, as a preventive of smallpox; that, while they have recognized the possibility of injury to an individual from carelessness in the performance of it, or even, in a conceivable case, without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive.”
Thus, both courts concluded, Jacobson was not denied due process of the law when the trial judge, fearing the prejudicial effects of dramatic testimony from dueling experts, declined to let Jacobson prove his contentions. That decision may seem a little preemptory, but there’s a durable legal principle behind it: Courts should only overrule the judgment of a local government if it’s manifestly unreasonable — “in palpable conflict with the Constitution,” as Harlan put it in the Jacobson opinion. That is, the Supreme Court shouldn’t seek to replace the Cambridge health board’s evaluation of the efficacies of vaccination with its own assessment. The court’s inquiry should be confined to determining whether the board was acting in good faith and on good information.
“Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution,” Harlan concluded. “Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the State to that end has no real or substantial relation to the protection of the public health and the public safety.”
The wasn’t the end of the matter. Henning Jacobson was not only attacking the board of health’s vaccination order as being of questionable legal basis, he was asserting his freedom to reject it out on his own accord. His lawyers’ brief to the Supreme Court made a passionate case for his right to control his own medical decisions, in an argument that foreshadows the “medical freedom” framing of anti-vaccine and anti-mask campaigners today: “Liberty of the citizen in the very first analysis is immunity of his person from seizure or injury, except for the commission of an offense against the state, and the vaccination law of Massachusetts is a violation of his fundamental right to liberty as guaranteed to English speaking peoples from Magna Carta, through the Constitution of the United States to the Fourteenth Amendment.”
Despite the linguistic pomp, Jacobson’s legal claim rested on narrower grounds. The Magna Carta does not control American law, and the preamble of the Constitution — which was cited repeatedly in Jacobson’s brief — had long been held to be unenforceable. But the Fourteenth Amendment, enacted 36 years before Jacobson confronted his vaccine dilemma, did indeed state that a citizen’s liberty cannot be infringed upon without due process of law. It’s a puzzling clause, because it can be interpreted to mean nothing more than that a person can’t be held in jail without legal recourse. But the justices to whom Jacobson was appealing were inclined to look at the same language as meaning far, far more. They were, in fact, in the process of investing it with the power to protect businesses from unwanted intrusions such as minimum-wage laws and safety regulations.
Just eight years earlier, the court had introduced the idea that the liberty language in the Fourteenth Amendment guaranteed a citizen the right “to live and work where he will.” And two months after the Jacobson decision was handed down, the court would unveil its most sweeping use of the Fourteenth Amendment to date, in the landmark decision of Lochner v. New York. Declaring that a state law limiting workers’ hours in industrial bakeries to 60 per week violated the liberty of those who wished to work more than 60 hours, the court used the language of individual freedom to protect the prerogatives of large employers.
So it’s noteworthy that the same group of justices would reach a different conclusion in the case of Henning Jacobson. With only two holdouts, they ruled that Jacobson was not at liberty to reject the board-required vaccine.
“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,” Harlan, writing for the majority, acknowledged. “But it is equally true that, in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
Harlan noted that healthy travelers arriving in the United States on steamers that had suffered outbreaks of yellow fever or cholera could be held in quarantine against their wishes; so, too, could unwilling citizens be conscripted into the military in a time of national emergency.
These types of arguments are familiar to readers of Harlan’s dissents. Even though he is famous today as the lone dissenter in Plessy v. Ferguson, voting to overturn a Louisiana law placing African Americans in separate railroad cars, he was normally quite deferential to the decisions of legislatures. A firm believer in the democratic system, he felt that elected governments needed sufficient power to address major civic threats. He would go on to disagree with the court’s majority in Lochner v. New York, arguing in a forceful dissent that the law limiting bakery hours was a reasonable exercise of the New York Legislature’s power to protect the health and safety of citizens — in this case from overwork.
Today, the law is on the side of Harlan. The Lochner case is widely reviled as a symbol of judicial overreach by both liberals and conservatives. The fact that the same justices who were so concerned about laissez faire individualism in the Lochner case couldn’t bring themselves to support Henning Jacobson doesn’t bode well for any future challenge to a vaccine mandate. The current conservative-dominated court, it would seem, is far less likely than its Gilded Age forebearers to impute great protections to the liberty language of the Fourteenth Amendment.
Yet it remains an intriguing question how today’s justices would view a Jacobson-like challenge to a Covid-19 vaccination mandate. For while the arguments would be largely the same, there are some differences in both the circumstances and attitudes among the justices.
For one thing, the smallpox inoculations of 1904 had been around for far longer than today’s coronavirus vaccines. Smallpox had been a rampant killer for most of recorded history, branding those who survived with lifetime scars. Anti-smallpox vaccines had been in development for well over a century by the time Jacobson lodged his complaint; no less than General George Washington had ordered his troops vaccinated against smallpox. The disease would finally be irradicated in 1980, following a concerted global vaccination campaign.
Would today’s justices believe that the shorter frame of reference for Covid vaccines is reason alone to reject a mandate? If not, the fate of the law would depend on how the court regards the concept of personal liberty in today’s highly polarized political landscape.
Henning Jacobson based his exercise of personal liberty on something tangible, his and his son’s bad experiences with vaccines. Few of today’s plaintiffs would proceed on that basis. Statistics suggest that only a handful of the 80 million Americans who’ve decided to forgo the Covid-19 vaccination have had any bad experiences with vaccines; plainly, they are expressing their distrust of the government’s campaign more as a matter of principle. Could today’s conservative justices, eager to expand First Amendment protections of speech and religion, find a way to turn the prism and view the case more through a free-expression lens than that of a public-health measure? It’s an intriguing possibility.
Many of those conservative justices, along with their liberal colleagues, are Harlan admirers. Jurists across the political spectrum respect the way that Harlan’s heartfelt dissents in cases involving the rights of African Americans and Gilded Age economic excesses helped turn the tide of legal thinking. Chief Justice John Roberts went so far as to place Harlan’s portrait on the walls of the room where justices discuss cases. And now it appears that they may, again, be called upon to assess the wisdom and prescience of his words in yet another case of urgent national importance.
Could the Great Dissenter emerge as the Great Protector of the Covid-19 pandemic? Only time will tell.