by Sean Trende


Every now and again, an otherwise arcane legal topic suddenly becomes relevant to contemporary political debate. At that point, general commentary suddenly becomes filled with newly minted experts with strong positions on what is typically a nuanced issue. Thus, at various points during the past decade, Twitter saw a flood of hitherto undisclosed connoisseurs on the intricacies of the Logan Act, a constitutionally problematic piece of legislation that emerged from the same 18th century administration that brought us the infamous Alien and Sedition Acts. In the aftermath of Hurricane Maria, some observers suddenly expressed deep-seated opinions on the Jones Act, a complex piece of maritime law most people had probably never heard of prior to 2017.

So it seems to be with Jacobson v. Massachusetts, the previously obscure 116-year-old precedent – it barely warrants a footnote in most constitutional law treatises – that people have taken to citing whenever anyone questions the legality or constitutionality of vaccine mandates in response to the COVID-19 pandemic. But Jacobson is not some sort of argumentative checkmate. If the decision were actually taken to the lengths that some of its proponents suggest, it would be a truly terrifying ruling.

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Although I drafted most of this article before encountering Josh Blackman’s excellent law review article on Jacobson (available here), I did rely on it for some of the procedural history of the case, as well as some of the cases from the pandemic that relied upon Jacobson. It is well worth a read for anyone else interested in learning more about the case.

Also, although President Biden’s vaccine mandate is at the center of the news right now, public discussions of vaccine mandates include much broader variations on the theme — ones not limited to a discussion of Biden’s relatively mild order.

On its own terms, Jacobson is a limited decision.

Henning Jacobson was a Swedish-born Lutheran minister whose family had moved to the United States four years after the Civil War. Vaccinated against smallpox in his youth, he was living in Cambridge, Mass., in 1902 when the local Board of Health mandated that all residents who had not been vaccinated within the preceding five years either receive a vaccination or a booster shot, or pay a $5 fine (about $150 in today’s money). Jacobson, who claimed that he and his son had suffered adverse reactions to the vaccine, was among those who refused to comply. He also balked at paying the fine.

His case made its way to the Supreme Court, which decided in Massachusetts’ favor, declaring in a 7-2 decision that there are constraints on personal liberty “to which every person is necessarily subject for the common good.” Although this case has been cited, and understandably so, by vaccine proponents today, I believe the ruling is both narrower and broader than most people realize. It is narrower in that it is unclear, in fact, that Jacobson blessed any measure more coercive than a modest fine.

Applied to Biden’s mandate, Jacobson would probably permit, for example, the requirement that employees at companies of 100 people or more either receive the vaccine or receive weekly testing. But as American lawmakers rely increasingly upon sticks instead of carrots to encourage mandates, Jacobson fades into the background. This is especially true given the development of legal doctrine between 1905 and today.

It is unclear that Jacobson is entitled to full precedential deference today.

The Supreme Court is at least theoretically reluctant to directly overrule its previous decisions, under a principle known as stare decisis, or “let the decision stand.” But stare decisis is not absolute. In particular, when legal doctrine develops in such a way as to undercut the rationale or justification for an earlier legal rule, the rule can be deemed abandoned.

Thus, for example, in the marriage equality cases, some conservatives urged the justices to rely upon a decision from 1971, where a fairly liberal court unanimously turned away a suit seeking to establish a right for same-sex couples to marry. When the court later revisited the issue, it refused to defer to it. It noted, among other things, that the development of a line of cases outlawing discrimination on the basis of sexual orientation had undercut whatever rationale upheld its earlier decision.

Two related threads of legal doctrine that have evolved in the past 116 years undercut Jacobson’s rationale. The first is the application of the Bill of Rights to the states. For much of the nation’s history, the Bill of Rights was considered only applicable to the federal government; only a few clauses had been applied to the states when Jacobson was decided. In other words, to the extent that a vaccine mandate raises questions relating to the free exercise of religion, or other Bill of Rights-related questions, Jacobson shouldn’t control the outcome. At the very least, the question has never been squarely presented to the court.

The more relevant development is the Supreme Court’s recognition that an individual has a constitutionally protected right to refuse medical treatment. Oddly enough, most decisions in this line of cases cite Jacobson as the foundation for that right. Thus, in Washington v. Harper the court recognized that prisoners retained “a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs.” In Mills v. Rogers, the court noted that “the right to refuse any medical treatment emerged from the doctrines of trespass and battery, which were applied to unauthorized touchings by a physician.” In Cruzan v. Director, the court concluded that “[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.”

This is very important: None of these rights are absolute — and many of these cases ultimately approved the application of the unwanted drug. For instance, in Harper, the court concluded that an inmate could be forced to ingest anti-psychotic drugs if an internal review board deemed it necessary. In Cruzan, the court held that it was permissible for a state to require that the refusal of life saving medications be expressed via clear and compelling evidence.

There are counterpoints: The “right to refuse treatment” cases have typically arisen in unique contexts – the above cases all involve either inmates or the procedural safeguards a state must implement to protect the right to refuse – so the high court hasn’t squarely addressed the question of how far the right to refuse extends to the general public. Faced squarely with a vaccine mandate, it may well decide to reach an outcome very similar to the result in Jacobson, especially if there is an “escape hatch” such as a testing option or an option to pay a small fine. But the reasoning would probably have to be substantially rewritten, especially because the entire modern framework for balancing protected liberties against governmental interests hadn’t yet been developed in 1905 when Jacobson was decided.

As written, Jacobson is a civil liberties nightmare.

Jacobson itself is something of a constitutional coelacanth, a remnant of a bygone era that has survived what could have been several extinction events. Its core mode of reasoning is largely foreign to our times. It reasoned, in the then-dominant mode of interpretation, that vaccine mandates are a part of the general power of states to protect public health, safety and morals, powers that were only limited (at that time) by a constitutional prohibition against “arbitrary” action. If a governmental enactment bore a “real and substantial” relationship, to use Jacobson’s terms, to the end it sought to achieve, the enactment would survive review.

There are very few cases from this time period that civil libertarians regard with much affection, and it is easy to see why; “review for arbitrariness” would find that few things that failed to pass muster. Indeed many, if not most, of the cases from the time period have either been overruled, or substantially updated.

Blackman’s article is more comprehensive on this point, but there are a few key examples where Jacobson’s reasoning has been utilized to justify outcomes that believers in robust constitutional liberty should find particularly objectionable. Perhaps most notoriously, Jacobson’s reasoning was the basis for Justice Oliver Wendell Holmes’ decision in Buck v. Bell, which blessed compulsory sterilizations of intellectually disabled individuals. Indeed, Jacobson is the only case cited in that opinion. Holmes wrote dismissively:

“The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”

In short, the Supreme Court had already held that a right to bodily integrity and individual autonomy must give way to reasonable state regulations that serve the greater good. As Holmes put it two sentences earlier in his decision, “It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.”

More recently, during the pandemic Texas suspended access to elective abortions. Its argument, which the Fifth Circuit upheld, cited Jacobson and followed its reasoning closely: Because Texas had suspended access to elective procedures generally, it was clearly not arbitrary to prohibit access to abortions almost entirely. A fundamental freedom under the due process clause had to give way to the state’s police power during a pandemic. Later, Chief Justice John Roberts cited Jacobson in a concurring opinion, suggesting that the free exercise of religion was subject to Jacobson’s more relaxed review during a pandemic, while the Central District of California offered a similar gloss on it.

In addition, there are also the inevitable “Where does it end?” questions. While history does not go down every slippery slope, the law is path dependent, and it isn’t hard to imagine “next steps.” For example, drug overdoses cause tens of thousands of deaths annually and impose externalities by siphoning of medical resources and leaving devastated families in the wake. Would we be comfortable mandating vaccines for those addicted to opioids? While the Supreme Court has blessed mandatory treatment in the context of prisons and group homes, untreated mental illness imposes a cost on the general population. Are we comfortable with mandating that people with such diagnoses take these drugs as a condition of parole? What about among the general population?

We can probably make distinctions if we want to, and maybe COVID really is just a once-in-a-century situation where normal rules don’t apply. But the distinctions are probably finer and less durable than we would like to admit.

Other mandates are different.

There’s a two-fold response that is often presented as a sort of trump card when discussing mandates: (1) You need to be vaccinated to attend school (alternatively, “George Washington demanded vaccinations of his troops”); and (2) this is just like seat belt mandates or drunk driving laws.

But both are easily distinguishable from broad coronavirus vaccine mandates. On the first point, even Henning Jacobson agreed that school vaccinations were permissible because the government had a right to police what he called its own “internal economy.” There’s little doubt in my mind that Biden’s mandate that federal employees receive vaccinations is constitutional. For this to really work, your local public school district would have to require (in Biden’s example) that all contractors and local employers receive MMR (measles, mumps, rubella) vaccinations or that (in the broader example) the entire town receive their vaccinations. One might be okay with that, but I doubt this has ever been tried.

As for seat belt mandates and drunk driving laws, this fails to take seriously the sort of liberty interest expressed in the “right to refuse” cases described above: That the right to bodily autonomy is foundational, and that no one should be forced to accept an unwanted substance into their body except in the most extreme circumstances. Seat belt mandates are more akin to mask mandates, which are largely unexceptional, and perhaps less so: No one is forced to drive a car.

Drunk driving laws are closer to the case, but the better analogy is probably the question of the forced blood draw to test for heightened levels of alcohol consumption. The Supreme Court has blessed this, but it makes me (and most civil libertarians) quite uncomfortable.

It is terrifying that liberal groups are eagerly defending it.

The ACLU has historically taken a broad view of the right to refuse treatment, so it is unsurprising that in 2008, in the face of the H1N1 pandemic, its position was not subtle. It referred to “forced examinations, vaccination and treatment” coupled with criminal sanctions as “police state tactics.” It continued, “No one should be forced to be vaccinated against their will both because of the constitutional right to refuse treatment, and pragmatically because forced vaccination will deter at least some people from seeking medical help when they need it.”

It was therefore jarring when the ACLU took the position that vaccine mandates are not merely acceptable in this crisis, but are actually liberty-enhancing.

It’s not that I believe the ACLU is wrong on the merits in this instance, but the historic role of that organization, and of civil libertarians in general, is to take the side of civil liberties, even when they impose costs on society. The cost of the exclusionary rule and Miranda warnings is that criminals often go unpunished. The cost of our strong free speech protections is that newspapers can publish materials that are potentially damaging to a war effort, and that we allow a party literally funded by an adversarial state to continue to operate, publish materials, and even participate in elections.

Again, the point isn’t that we always accede to personal liberty interests and that all vaccine mandates are wrong; it is that we typically take those interests quite seriously and are willing to pay a price to protect them. To ensure this happens, it’s often critical to have a group at the barricades that expresses extreme defenses of liberty; we should be nervous when the groups that traditionally take those stances decide to turn their heads.

To paraphrase Justice Robert H. Jackson, the Constitution is not a suicide pact. But Jackson’s phrase was written in a dissent, in a 1949 case where the court overturned the conviction of a suspended priest whose rantings had incited an actual riot. While Jackson is ultimately correct, it’s also true that the price of liberty is eternal vigilance. Vaccine mandates may be justified in certain circumstances, perhaps even in these circumstances. But we should be wary and careful about their implementation.

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Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at [email protected]. Follow him on Twitter @SeanTrende.











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